case_text: I am not persuaded that this is necessarily the case. Common Law Superior Courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders not limited to orders in aid of the enforcement and working out of the order determining the rights of the parties. So observed Drummond J in Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 at 395. His Honour also observed that this Court's ancillary powers flow from authority under ss 22 and 23 of the FCA Act to resolve the whole of the controversy between the parties.


case_outcome: referred to

case_text: The issues involved are, at one level, complex. The applicants in the first motion have not been represented by solicitors or counsel. I would not, in the circumstances, be prepared to characterise the conduct of the applicants in the first motion as being unreasonable. This is so, even though I have concluded that the first motion has no reasonable prospect of success. The position may well have been different if the applicants in the first motion had been represented by experienced lawyers: cf Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. [37] These observations should not be seen in any way as a reflection on Ms Hanigan. Ms Hanigan is a law student who I have no doubt has been doing her best to represent the interests of the applicants in the first motion. They are not in receipt of public funding. 56 Furthermore, the articulation by Ms Hanigan of the two issues, which I have dealt with, together with her concession, quite properly made, that the resolution of these adverse to those whom she represents would justify the summary dismissal of the first motion greatly reduced both the time of the hearing and the issues for judgment.


case_outcome: cited

case_title: Boston Commercial Services Pty Ltd v GE Capital Finance Australasian Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720

case_text: Section 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act ") lowers the bar for obtaining summary judgment, including summary dismissal: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal. I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents. 30 It is for the applicant to establish the grounds to warrant an order for dismissal under s 31A: Boston Commercial Services Pty Ltd [2006] FCA 1352 ; 236 ALR 720. Nonetheless the respondents submit that two issues arise on the first motion which, if resolved against them, would justify an order for dismissal. I take this concession to mean that if the applicant satisfies me that the respondents have no reasonable prospects of successfully demonstrating that the two issues are serious issues to be tried then the first motion ought to be summarily dismissed. Both issues reflect the core submission of the respondents which is to the effect that the applicant has no authority to negotiate future acts, on behalf of the Yawuru Community which includes the Walman Yawuru clan, with the State. In this way the matters for judgment have been significantly confined. 31 The first issue is as to whether the applicant is the "native title party" for the purpose of negotiating with the State in respect to future acts. It involves consideration of s 30(2) of the Act . Properly understood this issue does not involve any question of the construction of that statutory provision but rather, whether, on the facts, the provision presently has application. 32 The requirement to negotiate in respect to future acts is provided for in Subdivision P of Div 3 of Part 2 of the Act . Notification must be given by a Government party, before the act is done, relevantly here, to the registered native title claimant, which is by definition also the native title party (ss 29(2)(b) and 30 (1)(a); definition of "registered native title claimant" in s 253).


case_text: This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 at 234-236. These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47.


case_text: This drafting addressed a perceived hiatus in the Act whereby, once a native title determination had been made and taken effect over an area of land, the Registrar of the Federal Court would notify the Native Title Registrar pursuant to s 189A(b) of the Act and the Native Title Register would then be amended to remove the entry pursuant to s 190(4)(d) of the Act if the application was finalised. Early determinations became effective immediately with respect to areas where native title had been extinguished, as well as areas where native title existed, but allowed a period of time for nomination of a prescribed body corporate. An example of this is to be found in the orders made in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208. In such a case, there was an hiatus period between removal of the entry from the Register of Native Title Claims and thereby removal of the details of the registered native title claimant and the entry onto the National Native Title Register of the PBC: s 193(2)(e) of the Act . In James , a period of 3 months was allowed for nomination of a PBC. Arguably, in this period there was no native title party (s 253 of the Act ) to notify or to negotiate with for the purposes of Part 2 Division 3 of the Act . 41 Since the orders of 28 April 2006 were made in these proceedings, s 190 of the Act has been amended, by s 100 of the Native Title Amendment (Technical Amendments) Act 2007 (No 125 of 2007), in the following terms: 100. After paragraph 190(4)(d) Insert: (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact;... 42 The Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 ("the Explanatory Memorandum") at 1.319 and 1.320 relevantly states: Item 100 would insert paragraph 190(4)(da). Proposed paragraph 190(4)(da) would make clear that when a determination of native title has been made but no RNTBC has yet been determined, the Register of Native Title Claims should be amended to reflect that situation. The NNTT currently proceeds on the basis that the claim is not finalised until the RNTBC has been determined or registered, which ensures that the native title holders may still be notified of any proposed future acts pending registration. However, this approach gives rise to confusion where the determination establishes that native title has been extinguished over parts of the claim area, in so far as the National Native Title Register will not reflect this (and could suggest that the claimants continue to have procedural rights over those parts).


case_title: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47


case_text: The applicants in the first motion were originally applicants but became respondents to the proceedings on behalf of a subset of the Yawuru Community, known as the Walman Yawuru ("the Walman Yawuru respondents" ) . Their independent application for native title was dismissed: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459. They were joined as respondents on their application, by order of Merkel J: Rubibi Community v The State of Western Australia (No 3) [2002] FCA 876 ; (2002) 120 FCR 512.


case_text: The Walman Yawuru respondents were found to have a special attachment to part of the claim area known as the Mangalagun area. However, it was not such as to constitute or give rise to a native title right or interest as defined in ss 223(1) and 253 of the Act . It followed that no rights or interests claimed by the Walman Yawuru respondents were possessed by them as members of the Walman Yawuru clan: Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025 [233] and [375].


case_text: In later reasons, Merkel J held that any native title rights and interest in the claim area were held by the Yawuru people on a communal basis and not by members of the Walman Yawuru on a group or clan basis and that they did not have native title rights and interests in that capacity in the claim area: Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82. [9] 8 Nonetheless, the Walman Yawuru respondents later contended that, as a result of this recognition of special attachment to specific areas in Rubibi (No 5) they were entitled, under s 225(c) of the Act to have that attachment recognised in the determination as an "other interest" in relation to the determination area. However, Merkel J held that the only "rights" or "interests" the Walman Yawuru clan members might have in relation to the Yawuru claim area were those held in any capacity they might have as members of the Yawuru Community and not "other interests" that were required to be set out in the determination pursuant to s 225(c) of the Act : Rubibi (No 7), [13]


case_title: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459


case_text: The Walman Yawuru respondents were accordingly unsuccessful in the substantive proceedings. These findings were undisturbed on appeal: The State of Western Australia v Sebastian [2008] FCAFC 65. 10 The proceedings were the subject of final orders made by Merkel J in April 2006 in Rubibi (No 7) . Those orders were amended by orders of French J made on 23 November 2006, 30 April 2007 and 9 May 2007 pursuant to a limited liberty to apply. The final orders included: (a) a determination of native title in which it was determined relevantly that the native title is held by the Yawuru Community; (b) orders dealing with the determination of a prescribed body corporate ("PBC") under s 56(1) or s 57(2) of the Act to hold the native title rights and interests on trust for the common law holders of the native title or to act as agent on their behalf; (c) liberty to apply to a Judge of the Court in respect of limited matters, namely matters arising out of the determination of a PBC and the inclusion in the Determination of maps showing the location of the determination area and of the areas comprising it; and (d) a declaration that, in respect of areas where native title has been determined to exist, the Rubibi proceedings are not "finalised" within the meaning of s 190(4)(e) of the Act until a PBC has been determined. The orders and declarations made by Merkel J on 28 April 2006 as well as the orders made by French J on 30 April 2007 are annexed to these reasons for ease of explanation. 11 Importantly, for reasons I will explain later, the determination as to the existence of native title does not take effect until the making of a determination in respect to a PBC under s 56(1) or s 57(2) of the Act .


case_text: Section 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act ") lowers the bar for obtaining summary judgment, including summary dismissal: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal. I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents.


case_text: Honour made the following observations: (1) It is not only on the hearing of a petition that the Court may 'go behind' the judgment giving rise to the judgment debt on which the petitioning creditor relies; the judgment debt can be impeached on a notice to set aside a bankruptcy notice (at 268D). (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (3) In the course of his judgment in Geard , Sheppard J had taken on board the following considerations: (a) The debtor had not made any application for a stay of proceedings pending the outcome of the appeal; (b) an application to extend time for compliance with the bankruptcy notice is not the hearing of a bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he, in all probability, will commit an act of bankruptcy; (c) if the appeal is ultimately dismissed and the judgment stands with the consequence that the bankruptcy proceedings go on, it may be quite important to the petitioning creditor, whoever he or she may be, to the general body of creditors and to the trustee in bankruptcy, that there be, for the purposes of the administration of the bankrupt estate, an act of bankruptcy committed at an earlier time than would be the case if the application were acceded to. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994).


case_text: other words, the first application was to set aside the Bankruptcy Notice. There is no express power in the Act to do so but it is common ground that it is within the general powers of the Court conferred by s 30(1) of the Act: see Australian Securities and Investment Commission v Forge [2003] FCAFC 274 ; (2003) 133 FCR 487 at [26] per Emmett J. There are, in my view, a number of problems with Mrs Coshott's application to set aside the Bankruptcy Notice, not the least of which are: (1) Her amended application of 29 October 2009 was not accompanied by an affidavit which complied with r 3.02(1) of the Federal Court (Bankruptcy) Rules 2006 in that the affidavit did not set out the grounds in support of the application to set aside. Arguably, Mrs Coshott's affidavit of 27 October 2009 filed in support of her amended application of 29 October 2009 set out the grounds upon which she sought an extension of time for compliance with the Bankruptcy Notice in compliance with r 3.03(1), but even that is not beyond argument. But even if she did, that would not satisfy the requirements of r 3.02(1) which requires the affidavit to set out the grounds in support of the application to set aside. As was noted in Maher v Commonwealth Bank of Australia [2008] FMCA 1004 , a failure to address the material requirements of r 3.02 (in that case it was r 3.02 of the Federal Magistrates Court (Bankruptcy) Rules, but they are in the same terms) will normally be fatal to an application to set aside a bankruptcy notice. (2) Second, counsel for Mrs Coshott did not articulate any grounds upon which the application to set aside the Bankruptcy Notice was founded. The best one can find is at para (70) of his written submissions where it is put: The application to set aside the Bankruptcy Notice is underlying [the] application to set aside the Certificate of Determination [of Costs] [in] the District Court ... With respect, that is not a proper ground in support of Mrs Coshott's application to set aside the Bankruptcy Notice. As was said by Emmett J in Forge at [27]: [T]he Act gives no general discretion to set aside bankruptcy notices that are valid in form and not an abuse of process. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counterclaim, set-off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 ; Re Athans; Ex parte Athans (1991) 29 FCR 302. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary.


case_title: Australian Shepherd v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76

case_text: second application sought an extension of time for compliance with the Bankruptcy Notice in reliance on s 41(6A) of the Act pending the outcome of Mrs Coshott's notice of motion filed on 23 October 2009 in proceeding No. 4000/09. As Hill and Marshall JJ observed in Shepherd v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76 at [40] : Clearly s 41(6A) was intended to be in aid of the application to set aside ... the bankruptcy notice ... See too Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125 at 130.


case_outcome: considered

case_text: Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 , Lehane J undertook a comprehensive review of the considerations that had been taken into account in other cases involving the exercise of the discretion under s 41(6A) , although, and it almost goes without saying, the considerations to which his Honour referred were conditioned by the facts of the case in respect of which the exercise of his discretion was called for. At 270, Lehane J went on to reason: In my view the considerations to which Sheppard J refers indicate that the principles to be applied where the question is whether a petition should be adjourned or dismissed are not necessarily those which should guide the exercise of the discretion to set aside, or extend time for compliance with, a bankruptcy notice. The commission of an act of bankruptcy is, undoubtedly, a serious matter; it is, however, of a different order of gravity from the change of status brought about by the making of a sequestration order; and there is also to be taken into account the interest of both the judgment creditor and other creditors of the judgment debtor in ensuring that, if ultimately a sequestration order is made, the relevant act of bankruptcy occurs earlier rather than later. In Conway v Jackson at [30], the Full Court said: In exercising the discretion whether or not to extend the time for compliance with a bankruptcy notice, the creditor should not be routinely frustrated from enforcing the judgment by the device of the institution of an appeal. Section 41(6C) , to an extent, recognises that position. Moreover, the date of the commission of the act of bankruptcy is significant to determine the commencement of the bankruptcy if a sequestration order is made: s 115(1) , and so to determining the property of the bankrupt which is divisible amongst the creditors of the bankrupt: s 116(1). It also has significance to the application of ss 118 , 120 , 121 and 122 of the Act. The delay in the commission of the act of bankruptcy, if ultimately the requirements of a bankruptcy notice are not complied with and a sequestration order is made, by an extension of time to comply with a bankruptcy notice may therefore have significant consequences to the creditors of the bankrupt. An extension of time to comply with the requirements of a bankruptcy notice does not, on the other hand, preclude any other judgment creditor from procuring the issue and service of a bankruptcy notice, or from presenting a petition for a sequestration order if some other act of bankruptcy has already been committed. Such considerations, if significant in the particular circumstances, together with other considerations relevant to the circumstances of the particular case, will no doubt be considered by the Court in exercising its discretion under s 41(6A) of the Act: see for example the discussion by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264. However, such considerations are properly left to the Court in exercising its discretion whether to extend time for compliance with the requirements of a bankruptcy notice. Counsel for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse. It is true that there is no stay of the judgment upon which the Bankruptcy Notice is based and no suspension of the costs assessor's determination or decision. But both were sought and refused on jurisdictional grounds: see [4] and [7] above. The contrast with Geard and Byron is clear.


case_text: for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse.


case_text: for Mrs Coshott further relied on what a Full Court of this Court said in Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201 at [29] : We do not agree that the language of s 41(6A)(a) is apt only to encompass an application to set aside a judgment or order where there has been a failure to follow the rules of procedure or where there is shown to be some defect or irregularity or some other circumstance which renders it desirable that the debtor should be given an opportunity to have the issue further litigated, and so as to exclude proceedings by way of appeal which may result in the judgment being set aside. It does not seem to accord with any legitimate policy consideration that a debtor whose careless or delictual conduct has allowed judgment to pass by default should be in any better position than a judgment debtor who has unsuccessfully but conscientiously defended a claim and succeeds in having the judgment set aside on appeal. Earlier, at [20], the Court had said: [W]e are of the view that the expression "proceedings to set aside the judgment or order" includes the institution of an appeal from the judgment or order in respect of which the bankruptcy notice was issued where that appeal does in reality seek to have that judgment or order set aside. I am satisfied that I have jurisdiction to entertain Mrs Coshott's application for an extension of time for compliance with the Bankruptcy Notice based on the existence of proceeding No. 2872/09 in the District Court and the terms of para (a) of s 41(6A) of the Act. The only remaining issue is how I should exercise my discretion: to further extend the time beyond the extensions already made, or to decline to do so. In Conway v Jackson at [30], the Full Court said: In exercising the discretion whether or not to extend the time for compliance with a bankruptcy notice, the creditor should not be routinely frustrated from enforcing the judgment by the device of the institution of an appeal. Section 41(6C) , to an extent, recognises that position. Moreover, the date of the commission of the act of bankruptcy is significant to determine the commencement of the bankruptcy if a sequestration order is made: s 115(1) , and so to determining the property of the bankrupt which is divisible amongst the creditors of the bankrupt: s 116(1). It also has significance to the application of ss 118 , 120 , 121 and 122 of the Act. The delay in the commission of the act of bankruptcy, if ultimately the requirements of a bankruptcy notice are not complied with and a sequestration order is made, by an extension of time to comply with a bankruptcy notice may therefore have significant consequences to the creditors of the bankrupt. An extension of time to comply with the requirements of a bankruptcy notice does not, on the other hand, preclude any other judgment creditor from procuring the issue and service of a bankruptcy notice, or from presenting a petition for a sequestration order if some other act of bankruptcy has already been committed. Such considerations, if significant in the particular circumstances, together with other considerations relevant to the circumstances of the particular case, will no doubt be considered by the Court in exercising its discretion under s 41(6A) of the Act: see for example the discussion by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264. However, such considerations are properly left to the Court in exercising its discretion whether to extend time for compliance with the requirements of a bankruptcy notice.


case_title: Doyle v Hall Chadwick [2007] NSWCA 159

case_text: for Mrs Coshott submitted that the fact that it was not sought to set aside the judgment in proceeding No. 4000/09, but rather the underlying certificate of determination which had merged into the judgment is of no import because the judgment is liable to be set aside or varied if the certificate on which it is based is set aside or varied. Reliance was placed on what was said by Hodgson JA (with whom Mason P and Campbell JA agreed) in Doyle v Hall Chadwick [2007] NSWCA 159 at [48] to [53]. What was said there was said in relation to s 208J(3) of the Legal Profession Act 1987 (NSW), the equivalent provision in the Legal Profession Act being s 368(5). I agree with this submission. So understood, the fact that Mrs Coshott has filed a notice of motion seeking to amend the summons in proceeding No. 2872/09 so as to add a claim that judgment in proceeding No. 4000/09 be set aside (see [8] above), is arguably irrelevant.


case_title: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337


case_title: Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J)


case_text: are, in my view, a number of problems with Mrs Coshott's application to set aside the Bankruptcy Notice, not the least of which are: (1) Her amended application of 29 October 2009 was not accompanied by an affidavit which complied with r 3.02(1) of the Federal Court (Bankruptcy) Rules 2006 in that the affidavit did not set out the grounds in support of the application to set aside. Arguably, Mrs Coshott's affidavit of 27 October 2009 filed in support of her amended application of 29 October 2009 set out the grounds upon which she sought an extension of time for compliance with the Bankruptcy Notice in compliance with r 3.03(1), but even that is not beyond argument. But even if she did, that would not satisfy the requirements of r 3.02(1) which requires the affidavit to set out the grounds in support of the application to set aside. As was noted in Maher v Commonwealth Bank of Australia [2008] FMCA 1004 , a failure to address the material requirements of r 3.02 (in that case it was r 3.02 of the Federal Magistrates Court (Bankruptcy) Rules, but they are in the same terms) will normally be fatal to an application to set aside a bankruptcy notice. (2) Second, counsel for Mrs Coshott did not articulate any grounds upon which the application to set aside the Bankruptcy Notice was founded. The best one can find is at para (70) of his written submissions where it is put: The application to set aside the Bankruptcy Notice is underlying [the] application to set aside the Certificate of Determination [of Costs] [in] the District Court ... With respect, that is not a proper ground in support of Mrs Coshott's application to set aside the Bankruptcy Notice. As was said by Emmett J in Forge at [27]: [T]he Act gives no general discretion to set aside bankruptcy notices that are valid in form and not an abuse of process. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counterclaim, set-off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 ; Re Athans; Ex parte Athans (1991) 29 FCR 302. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary.


case_title: Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995)


case_text: for Mr Barry submitted that no further extension of time for compliance with the Bankruptcy Notice should be allowed by reference to the following considerations: (1) There was no stay of the judgment upon which the Bankruptcy Notice is based and no suspension of the cost assessor's determination or decision: see s 386 of the Legal Profession Act . (2) There were a number of difficulties with the issues which Mrs Coshott identified as being raised by her appeal in proceeding No. 2872/09 which cast serious doubt on the likelihood of its success, if not its bona fides , not the least of which was that the orders made by James J of the Supreme Court of New South Wales on 20 February 2008 that Mr and Mrs Coshott pay the costs of Mr Barry in proceeding No. 20114/04 gave rise to a joint and several liability: Re Bowen; Ex parte The Australian Workers Union & Ors (1945) 13 ABC 275 at 278 279. (3) The consideration in (2) aside, it is inappropriate for me to embark on a course of determining what is or is not going to happen with the appeal.


case_text: Honour made the following observations: (1) It is not only on the hearing of a petition that the Court may 'go behind' the judgment giving rise to the judgment debt on which the petitioning creditor relies; the judgment debt can be impeached on a notice to set aside a bankruptcy notice (at 268D). (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (3) In the course of his judgment in Geard , Sheppard J had taken on board the following considerations: (a) The debtor had not made any application for a stay of proceedings pending the outcome of the appeal; (b) an application to extend time for compliance with the bankruptcy notice is not the hearing of a bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he, in all probability, will commit an act of bankruptcy; (c) if the appeal is ultimately dismissed and the judgment stands with the consequence that the bankruptcy proceedings go on, it may be quite important to the petitioning creditor, whoever he or she may be, to the general body of creditors and to the trustee in bankruptcy, that there be, for the purposes of the administration of the bankrupt estate, an act of bankruptcy committed at an earlier time than would be the case if the application were acceded to. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994). His Honour went on to observe that considerable weight should be given to the circumstance that in the case before him, as in Geard , no stay has been granted (or, apparently, sought) of the judgment supporting the bankruptcy notice. It did not follow that other matters were not to be taken into account: the discretion is 'at large' ( Re Taylor; Ex parte Deputy Commissioner of Taxation (Cth) [1983] FCA 316 ; (1983) 74 FLR 377 at 379). Counsel for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse. It is true that there is no stay of the judgment upon which the Bankruptcy Notice is based and no suspension of the costs assessor's determination or decision. But both were sought and refused on jurisdictional grounds: see [4] and [7] above. The contrast with Geard and Byron is clear.


case_title: Re Smith (unreported, Federal Court, 4 May 1994)


case_title: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125


case_text: Honour went on to observe that considerable weight should be given to the circumstance that in the case before him, as in Geard , no stay has been granted (or, apparently, sought) of the judgment supporting the bankruptcy notice. It did not follow that other matters were not to be taken into account: the discretion is 'at large' ( Re Taylor; Ex parte Deputy Commissioner of Taxation (Cth) [1983] FCA 316 ; (1983) 74 FLR 377 at 379). Counsel for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse.


case_text: In view of this, and mindful of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1986] HCA 40 ; (1986) 162 CLR 24, I do not consider that the words ' no prospect ' in the reasons given by the Tribunal indicate that the Tribunal did not take into account his reservist status in making this finding. The finding that there was no real chance of future persecution was open on the evidence. I can see no jurisdictional error in the finding. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 22 August 2006 Counsel for the Appellant: The appellant appeared in person, with the assistance of his friend Mr Sarkis. Counsel for the Respondent: Ms S McNaughton Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 7 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1110.html


case_outcome: applied

case_text: The question, therefore, is whether, as Smith FM suggests, the decision of the Tribunal can be sustained because there is a separate and independent line of reasoning which is not affected by the breach of s 424A(1): see SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53. 32 The finding of the Tribunal relied upon by Smith FM states as follows: 'In any event, even if I am wrong in relation to these findings, I am satisfied that given that the applicant has now been discharged from the LAF, there is no prospect that this mistreatment would continue if he were to return to Lebanon. I do not accept the applicant's evidence that his relative the colonel advised him to leave Lebanon once he was demobilised. There is no sensible reason arising from the evidence before me to suggest that the applicant would be at risk of any continuing harm or human rights violations arising from his military service once that service had ended. Whatever ill treatment he may have encountered during that period, I am satisfied that there is no real chance that it would continue in the future.' 33 I accept that this is a separate and independent line of reasoning as discussed in SZECD and that, if this finding is unaffected by jurisdictional error, the decision of the Tribunal can be sustained. Accordingly, the question is whether this finding is free from jurisdictional error. 34 I consider that it was open to the Tribunal to find that there was no real chance that the appellant would be subject to mistreatment if he were to return to Lebanon because he had been discharged from the military, even given the possibility that the appellant might be called up for reservist duty. The Tribunal was clearly aware of this possibility. It recorded in its reasons the fact that the appellant is a reservist, noting: 'The applicant submitted copies and translations of his military service exemption card, issued in January 2003, stating that the applicant had completed more than two years service in the armed forces and was free to travel overseas, among other things; his army reservist card, indicating that he is eligible for reservist duty at first level until 2007, and at second level until 2017 ...' 35 The Tribunal's reasons also record that the appellant specifically raised the matter of his reservist status, noting that the appellant claimed: 'Also, because he is a reservist, if a war breaks out he will have to fight; he does not want to fight because he does not want to hurt anyone, and they will put Christians in the front line.'


case_text: Judgment on liability was handed down on 18 April 2008: Black & Decker Inc v GMCA Pty Ltd (No 2) [2008] FCA 504. Subsequently I heard argument as to some aspects of the relief sought. 2 The applicants (collectively B & D) seek, inter alia, the following orders: THE COURT DECLARES THAT: 1. The Respondent has infringed claims 1 and 3 to 8 (inclusive) of Australian Standard Patent No. 757412 ("the Standard Patent") by exploiting in Australia the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM50 ("the Tyrannosaw Mark I"). 2. The Respondent has infringed claims 1 to 6 (inclusive) of the Standard Patent by exploiting in Australia the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM51 ("the Tyrannosaw Mark II"). 3. The Respondent has infringed claims 1 to 5 (inclusive) of Australian Innovation Patent No. 2002100583 ("the Innovation Patent") by exploiting in Australia the Tyrannosaw Mark I. 4. The Respondent has infringed claims 1 to 5 (inclusive) of the Innovation Patent by exploiting in Australia the Tyrannosaw Mark II. THE COURT CERTIFIES THAT: 5. For the purposes of s 19 of the Patents Act 1990 (Cth), the validity of claims 1 to 8 of the Standard Patent was questioned unsuccessfully in these proceedings. 6. For the purposes of s 19 of the Patents Act 1990 (Cth), the validity of claims 1 to 5 of the Standard Patent was questioned unsuccessfully in these proceedings. THE COURT ORDERS THAT: 7. The Respondent whether by itself, its directors, officers, servants or agents or otherwise howsoever during the term of the Standard Patent is restrained from infringing claims 1 to 8 inclusive of the Standard Patent and in particular, from: (a) importing, making, selling, supplying, or otherwise disposing of or offering to make, sell, supply or otherwise dispose of or using or keeping for the purpose of doing any of those things,, the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM 50 ("the Tyrannosaw Mark I"); (b) importing, making, selling, supplying, or otherwise disposing of or offering to make, sell, supply or otherwise dispose of or using or keeping for the purpose of doing any of those things, the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM 51 ("the Tyrannosaw Mark II"); (c) authorising any person to do any act which would be a breach of the injunction referred to 7(a) and (b) above. 3 Senior counsel for GMCA argued that the findings of the Court in relation to the Standard Patent concerned only claim 6, which dealt specifically with a power tool used as a panel saw and a jigsaw (see the full text of the claims of the Standard Patent at [16] of the substantive judgment). 15 Another factor is a rather indulgent attitude often taken towards amendment and adjournment applications, in reliance on Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. However, there is a limit, as was demonstrated in the present case when Finkelstein J refused GMCA a further adjournment of the trial date. I refused leave to appeal from this decision and an application by GMCA for special leave to appeal to the High Court was dismissed: GMCA Pty Ltd v Black & Decker Inc [2007] HCATrans 662.


case_text: Some latitude needs to be allowed for the changing of a party's case as investigations reveal possible new arguments. But a line has to be drawn somewhere. Otherwise cases would never get to trial. When, as often happens today, and did so in the present case, there is no interlocutory injunction in place, an ultimately successful patentee may suffer loss which is difficult or impossible to quantify. In the present case B & D claims that costs wasted or duplicated by reason of GMCA's fourth (19 December 2006) and fifth (18 April 2007) particulars of invalidity should be ordered on an indemnity basis. I agree. One of the established categories for which indemnity costs may be ordered is where a party has conducted its case so as to grossly prolong the litigation, thereby causing (the other party) to incur costs far beyond what they could reasonably have expected to incur in litigation of the genuine issues. Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993) at 5, cited with approval in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233.


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: As a general rule a court should be reluctant to undertake an enquiry as to who was successful on particular issues for the purpose of determining whether there should be an apportionment of costs against the successful party: see Dr Martens v Figgins Holdings (No 2) [2000] FCA 602 at [54] where Goldberg J said: A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue. See also Cretazzo v Lombardi (1975) 13 SASR 4 at 16. 8 In the present case B & D did not fail on all issues relating to the design. The design infringement issue did not take up a major part of the design case, still less of the total hearing. From a commercial aspect it was understandable that B & D should pursue design infringement as well as the Standard and Innovation Patent infringements as they were all bound up with the one product. Also, the design infringement issue, turning as it did essentially on visual inspection, did not become the subject of very detailed expert evidence, although there was some. There was no witness whose evidence was confined to design infringement, the one issue on which GMCA succeeded. 9 All in all I think it is reasonable not to make any reduction of the general award in favour of B & D. 10 B & D submits that it should receive at an indemnity level an award of costs thrown away in relation to: • repeated changes in GMCA's case; • loss of the trial date in April 2007; and • failure to respond reasonably to notices to admit.


case_text: Another factor is a rather indulgent attitude often taken towards amendment and adjournment applications, in reliance on Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. However, there is a limit, as was demonstrated in the present case when Finkelstein J refused GMCA a further adjournment of the trial date. I refused leave to appeal from this decision and an application by GMCA for special leave to appeal to the High Court was dismissed: GMCA Pty Ltd v Black & Decker Inc [2007] HCATrans 662. 22 On 18 August 2006 Finkelstein J set the matter down for trial with an estimate of five days commencing 10 April 2007 and gave directions as to the filing of evidence. 23 On 16 November 2006 GMCA's solicitors wrote to B & D's solicitors requesting an extra month in which to file its evidence in chief on invalidity. It appeared from that letter that (a) GMCA had only appointed its experts on 23 October and 3 November 2006 (that is, over a year since the proceeding commenced); (b) one of those experts was currently overseas making it difficult to finalise his affidavit; (c) prior art searches were still being conducted in review; (d) GMCA was having difficulty locating prior art and was still attempting to locate additional witnesses; and (d) GMCA's patent attorney was taken ill on 11 November. 24 On 27 November 2006 Finkelstein J extended the time for filing of evidence (evidence in chief by both parties 15 December 2006, GMCA answering evidence 16 February 2007, B & D answering evidence 2 March 2007) and directed that no evidence could be filed thereafter. 25 On 15 December 2006 GMCA filed its evidence. 26 On 19 December 2006 GMCA filed its fourth particulars of invalidity. These added 11 further anticipations in relation to the patents in suit and eight in relation to the design. 27 On 20 March 2007 GMCA was granted leave by Finkelstein J to amend its particulars of invalidity and file further evidence in relation to new prior art. As a consequence, on 11 April 2007 his Honour made orders vacating the trial date and fixing a new trial date of 19 November 2007. His Honour gave directions as to the further filing of evidence. 28 On 18 April 2007 GMCA filed its fifth particulars of invalidity. These deleted 25 pieces of prior art that had previously been cited against the patents and introduced 11 new pieces. The particulars also deleted six pieces of prior art that had previously been cited against the design and introduced one new piece of prior art. 29 Since the adjournment of the trial a further four affidavits were filed on behalf of GMCA in May 2007. A further five affidavits were filed on behalf of B & D in July 2007 and a further five affidavits on behalf of GMCA between August and October 2007. 30 On 5 October GMCA sought a further postponement of the trial date. As already mentioned, this application was rejected by Finkelstein J, who gave reasons on 26 October. His Honour said at [6] that GMCA's non compliance was "not excusable". His Honour continued: Indeed this case is a particularly bad one as regards delay... Initially the trial was fixed to begin on 10 April 2007. On the eve of the trial the respondent said it was not ready to begin the hearing and sought leave to introduce further prior art with which to attack both the patent and the design. Leave was granted so that the respondent was not shut out from running its best case. 31 His Honour noted that a consequence was the trial had to be vacated. It was refixed to commence on 19 November and a new timetable was set in place. His Honour noted: [7] ...When these orders were made it was made clear that neither party was to use its right of reply as an opportunity to add to its evidence in chief. [8] Despite the orders (or in defiance of them) the respondent has served two reply affidavits in which it seeks to add to its evidence in chief. The affidavits were filed without leave. The application for leave to rely on the additional material was made orally at the recent case management conference. 32 His Honour then went on to note how the affidavits referred to, and produced, new prior art. His Honour refused leave to rely on any additional material. 33 In the event, by the time of its closing submissions at trial GMCA relied on only seven pieces of prior art, two of which had not been pleaded. This is to be contrasted with the pleading at various stages of no less than 45 pieces of prior art. 34 B & D was put to significant wasted expense dealing with alleged anticipations which ultimately were not relied on by GMCA. Many of these took the form of patents, which required careful analysis by B & D's experts and lawyers. 37 Much of B & D's work and evidence up to that time was wasted and B & D was forced to prepare for a trial seven months later. As Finkelstein J noted in the passage already quoted, the case was "a particularly bad one as regards delay". I reject GMCA's argument that B & D was somehow equally to blame because it was a day late in serving exhibits to some of its affidavits. 38 B & D should receive costs on an indemnity basis for costs wasted or duplicated by reason of this adjournment of the trial date. 39 On 12 October 2006, that is almost a year after the commencement of proceedings and about six months before the scheduled trial date, B & D's solicitors served a notice to admit facts on GMCA. By this stage the parties had completed discovery but had not filed any evidence.


case_title: Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993)


case_title: Ungar v Sugg (1899) 9 RPC 113

case_text: These issues need to be seen in the context of the tortuous history of this case. That progress, or lack thereof, brings to mind the statement of Lord Esher MR in Ungar v Sugg (1899) 9 RPC 113 at 117 recently cited by Jacob LJ in Nichia Corporation v Argos Ltd [2007] EWCA Civ 741 at [1] : A man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law: it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief. 12 Jacob LJ, England's pre-eminent patent judge, continued: [2] What causes cost is time: time spent by lawyers, experts and the parties themselves. Lawyers' and experts' time is normally measured and costed. Because they are highly skilled, lawyers' and experts' time is expensive. Time spent by the parties themselves is generally irrecoverable. [3] It follows as night follows day that every issue or topic in a patent action which causes significant expenditure of time will contribute to the overall cost. 13 Those observations apply equally to patent litigation in this country. Some additional points can be made. In most commercial litigation the relevant events, the creation of documents, the conversations, the payment or non-payment of money etc, have already occurred by the time the litigation commences. With patent litigation, however, much of the critical evidence is from experts and only comes into existence after the proceedings have been launched and those experts have been located and retained and have prepared their evidence. All this takes time, and since both sides face the same kind of problems there is a natural tendency for mutual accommodation: "We understand you need an extra three months to get Professor X's evidence, just give us an extra three months after that to get Dr Y's".


case_text: It is proper to have an injunction not only referring to particular products found to have infringed, but also in respect of any other infringing products which the infringer might produce or sell: see Welcome Real-Time SA v Catuity Inc (No 2) [2001] FCA 785. 6 I held that B & D's design was valid but not infringed. Thus each side had some success in relating to design issues. GMCA says that it should recover its costs on those issues or at least on the infringement issue. B & D says there should be no reduction of a general order as to costs in relation to design issues or at worst there should be no order as to costs.


case_text: I recently have had the need to outline the principles applicable to a matter such as this: see Reid v State of South Australia [2007] FCA 1479 at [23] - [30] . The following, with some addition, is drawn from what I there said. 16 An application for a determination of native title under s 13(1)(a) of the Native Title Act can be brought in accordance with s 61(1) by (for present purposes): "A person or persons authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; ... Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group." (Original emphasis)


case_text: As Lindgren J commented in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [72] : "The expression 'native title claim group' is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating 'claimants' and members of the 'native title claim group' as synonymous. But there is no escaping the fact that the 'native title claim group', all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed." 18 I would note in passing that the indispensable nexus between traditional laws and customs and claimed native title rights and interests is made plain in s 223(1) of the Act which recognises "communal, group or individual rights and interests of Aboriginal peoples" in relation to land where "the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples" (emphasis added). 19 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 23 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do no more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."


case_text: It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774.


case_title: Colbung v State of Western Australia [2003] FCA 774


case_text: The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] . 23 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do no more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."


case_text: The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] . 24 Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77. 33 For my own part I consider the trust-like claim gives some reason for pause. The application and the accompanying evidence when considered most favourably to Mr Kite: see McKenzie at [26]; does suggest (subject to what is later said) that there is a basis for asserting the claim group members were, in accordance with traditional law and custom, authorised to make the claim (i.e. as Nguraritjas); that they were entitled to speak for the country; and that they had particular responsibilities in relation to the land claim. But the doubt it engenders is that these matters have had some part to play in contriving the claim group itself. That doubt is exaggerated by the not altogether satisfactory explanation given of the "rights" of the wider community of descendants of Bill Kite to enjoy or to have the benefits of the native title rights and interests claimed. Nonetheless, it is said on Mr Kite's behalf that the division between holding the claimed rights and interests on the one hand, and having the benefit or enjoyment of them on the other is a factual proposition that is not to be tested on the present motion. 34 In the end I consider that I am obliged to give Mr Kite the benefit of the doubts I have. I would, however, observe this much. I am not prepared to assume that the particular traditional laws and customs of an Aboriginal group cannot produce the type of internal relationship within a community such as is advanced in this claim. Nonetheless, I have some concern that in this matter the claim may well owe more to concepts drawn from common law conceptions of property than from traditional laws and customs. I refer in particular to the apparent equation here of the idea of being a "holder" of native title rights and interests with that of being the "owner" of those rights and interests. 35 The second two matters to which I need refer relate to the actual composition of the claim group itself and to the basis of its membership. I have foreshadowed both of these matters. The first relates to the members' relationship to Bill Kite; the second, to Adam Tunkin's membership of the group.


case_text: The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] .


case_text: Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77.


case_text: The vices in the membership of the claim group carry over into the alleged authorisation of Mr Kite to bring the claim itself. I need say no more about this, other than to observe that this particular claim group is itself probably best described as self-identifying and self-authorising and is objectionable for those reasons: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] . The process of authorisation described in the affidavit accompanying the Form 1 suggests as much. 44 The State also raised subsidiary issues of non-compliance with procedural requirements imposed by s 61A and s 62. Given my conclusion as to the fate of the application itself, it is unnecessary that I deal with these. 45 I will order that the native title determination application (SAD 130 of 2007) be struck out under s 84C of the Native Title Act . I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 2 November 2007 Counsel for the Applicant: Mr R Bower Solicitor for the Applicant: Corser & Corser Counsel for the Respondent: Mr S McCall Solicitor for the Respondent: Crown Solicitor for the State of SA Date of Hearing: 15 October 2007 Date of Judgment: 2 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1662.html


case_text: Each Scheme Participant is deemed to have warranted that all of its Shares and Units to be transferred to Morgan Stanley Bidco will at the date of transfer be "fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind...", and that the Scheme Participant has full power and capacity to sell and transfer them: cl 7.3. I have no difficulty with a provision of that kind: see APN News & Media Limited (2007) 25 ACLC 784 ( APN ) at [57] [63]. 31 The Implementation Agreement contains "no shop" and break fee provisions. I discussed such provisions in APN 25 ACLC 784 at [25] [35] and [36] [55] respectively. 32 The affidavit of Jonathan Peter Callaghan, the Group General Counsel of the Investa Property Group, sworn 17 July 2007 deals at paras 23 26 with such provisions in the present case. The "no shop" provision (cl 14 of the Implementation Agreement) is to the effect that during a "No Shop Period" competing takeover proposals are not to be sought, and that if any are received, Morgan Stanley Bidco is to be given an opportunity to match them. 33 The break fee provision (cl 15 of the Implementation Agreement) is to the general effect that Investa will pay to Morgan Stanley Bidco a break fee of $20 million if, within nine months of the date of the Implementation Agreement, certain events occur. In general terms, these are that the proposed acquisition by Morgan Stanley Bidco fails for certain reasons, such as the acceptance of a competing takeover proposal. The break fee is not payable if the Investa Shareholders simply decide not to accept Morgan Stanley Bidco's offer. 34 Mr Callaghan's affidavit shows that the "no shop" and break fee provisions were agreed to by Investa following ordinary arm's length commercial negotiations between Investa and Morgan Stanley Bidco that were conducted over a period of two months, during which the parties were separately advised and represented by external legal advisers, and (in the case of Investa) by external financial advisers, with extensive experience of transactions of the present kind. Mr Callaghan states that Investa received legal advice on the operation of both provisions, and that Investa had regard to the guidelines set out in the Takeovers Panel Guidance Note 7 when it was negotiating and agreeing to them. 35 The amount of the break fee is $20 million which represents 0.49% of the equity value of the Securities as at 30 May 2007, and 0.43% of the total consideration offered by Morgan Stanley Bidco, including the eight cents per Security dividend or distribution to be paid to Security holders on 22 August 2007. Clearly, the amount of the break fee is well below the 1% of equity value referred to (at [7.18]) in the Takeovers Panel's Guidance Note 7: Lock-up Devices (2 nd Issue, 2005).


case_text: A "share" is a legal chose in action that is constituted by a bundle of contractual rights and obligations and represents a person's interest in a company, and which, subject to the company's constitution and possibly other constraints, is transferable, transmissible and capable of devolution by will and by operation of law: see the Act s 1070A , and Borland's Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 at 288; Commissioners of Inland Revenue v Crossman [1937] AC 26 at 66; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 157. Under general law principles, a buyer of a share enjoys priority over the holder of an earlier equitable interest because of the doctrine of bona fide purchaser of the legal estate without notice: see Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane's Equity Doctrines and Remedies (Butterworths LexisNexis, 2002) at [8-230] [8-300].


case_title: Borland's Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279


case_title: Commissioners of Inland Revenue v Crossman [1937] AC 26


case_title: Re Kaz Group Ltd [2004] FCA 738

case_text: Morgan Stanley Bidco has executed a Deed Poll by which it has covenanted in favour of the Scheme Participants (the holders of Securities other than Excluded Securities) to carry out the obligations to be performed by it under the Share Scheme and the Unit Scheme. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) .


case_text: Morgan Stanley Bidco has executed a Deed Poll by which it has covenanted in favour of the Scheme Participants (the holders of Securities other than Excluded Securities) to carry out the obligations to be performed by it under the Share Scheme and the Unit Scheme. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) . 19 In SFE 59 ACSR 82, Gyles J suggested that a scheme might provide for payment by the acquiring company to a trustee prior to the vesting of title to the shares in the acquiring company, to be held by the trustee for payment to the shareholders immediately following the vesting. In my experience, this procedure is now commonly followed, as it has been in the present case. 20 Accordingly, under cll 4.2 and 4.4 of the Share Scheme, on or before 12.00 noon on the Implementation Date, Morgan Stanley Bidco is to pay the aggregate Scheme consideration in cleared funds into an account in the name of Investa, to be held by Investa on trust for the Scheme Participants (except that any interest on the amount is to be for the account of Morgan Stanley Bidco) for the purpose of its being paid over to them by dispatch not later than the Implementation Date. Also by 12.00 noon on the Implementation Date Morgan Stanley Bidco is to provide a certificate signed by a director confirming that Morgan Stanley Bidco has made that payment. After 12.00 noon on the same date, and subject to receipt by Investa of that certificate, the Shares, other than the Excluded Shares (if any), together with the Units that are stapled to the Shares, are to be transferred to Morgan Stanley Bidco.


case_title: Re Tempo Services Ltd (2005) 53 ACSR 526


case_outcome: discussed

case_text: As distinct from the deemed warranty just mentioned, the Scheme also includes (in cl 7.3(b)) what may be called a "vesting free of encumbrances" term. I discussed such a term in WebCentral Group Limited (No 2) (2006) 58 ACSR 742 ( WebCentral ) at [14] [24], and will not repeat here what I said there. 23 The question that arises is whether, in the exercise of its discretion in an ex parte proceeding and without a contradictor, the Court should make an order for the convening of the meeting and later approving a scheme containing the particular term proposed. 24 Could the presence of the term detrimentally affect the interests held by third parties in the shares the subject of the scheme? If not, why have, or not have, the term as part of the scheme (see WebCentral 58 ACSR 742 at [20])? If so, should the Court support a term that can detrimentally affect the interests of third parties who have not been heard? 25 The effect of the Court's approval of a scheme agreed to by the requisite majorities in number and in value is that the scheme is binding on all members and on the company: s 411(4). As noted in WebCentral 58 ACSR 742 at [18], in substance the effect is to supply consent to be bound by the scheme, even of members who did not vote in favour of it. The vesting free of encumbrances term would be binding on all members. It would, however, leave the interests of third parties to be governed by general law principles. As noted below, those principles give very substantial protection to an acquiring company. 29 The vesting free of encumbrances term expressed in cl 7.3(b) of the Share Scheme incorporates a qualification in the light of the observations in WebCentral 58 ACSR 742. The term is as follows: To the extent permitted by law , all Investa Shares (including any rights and entitlements attaching to those shares) which are transferred to Morgan Stanley Bidco under this Investa Share Scheme will, at the date of the transfer of them to Morgan Stanley Bidco, vest in Morgan Stanley Bidco free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and free from any restrictions on transfer of any kind not referred to in this Investa Share Scheme. (Emphasis added.) 30 I regarded the opening words "To the extent permitted by law" as giving adequate notice that a third party would not suffer the extinguishment of an interest in shares if Morgan Stanley Bidco had had notice of that interest. I therefore took the view that those words overcame the difficulty referred to in WebCentral 58 ACSR 742, which was that the presence of a vesting free of encumbrances term might give the impression to third parties that their interests had been extinguished by the presence of the term where they would not have been in its absence.


case_text: 1335(1) assumes that the proceeding under consideration will go to trial and that the applicant's claim will fail. However to enliven s 1335(1) the respondents must establish that there is credible testimony which establishes that there is reason to believe that the applicant will be unable to pay the costs of the successful respondents. This has been described as the threshold condition for the exercise of the discretion in the exercise of the power given to the Court in s 1335(1). In Beach Petroleum NL v Johnson (1992) 7 ACSR 203 at 205 von Doussa J identified the test: In my opinion the power of the court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant on service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security.


case_text: in Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93 ; (2008) 66 ACSR 455 the Court of Appeal in Victoria warned against the adoption of a test different from the test posed by the statute. The test it said was, "[i]s there reason to believe that the corporation will be unable to pay the defendant's costs?": Livingspring Pty Ltd [2008] VSCA 93 ; 66 ACSR 455 at 459. The Court of Appeal was right in my opinion to return to the wording of the statute to identify the statutory test. The words of the statute must govern the exercise of the power, not like words or any restatement of the statute: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 228 CLR 168 at [84] .


case_outcome: followed

case_title: Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93 ; (2008) 66 ACSR 455


case_text: history relating to that application is fully described in my reasons for judgment in Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [2] - [22] . For completeness I include these paragraphs. The application seeking leave to amend had its genesis in a notice of motion which was filed on 12 June 2007 in which the applicant sought leave to amend its third further amended statement of claim. That notice of motion was listed for mention on 9 July 2007 and was heard on 12 July 2007. On that day I made the following orders: The applicant lodge and serve the applicant's proposed fourth further amended statement of claim within 28 days. The hearing of the applicant's notice of motion dated 12 June 2007 to amend its further amended statement of claim be adjourned to 9.30am on 4 September 2007. The applicant pay the respondent's costs of the applicant's notice of motion dated 12 June 2007 to date. The respondent's notice of motion dated 26 April 2007 be adjourned to 9.30am on 4 September 2007. On 16 August 2007 the parties, by agreement, consented to an extension of time within which the applicant had to lodge its proposed fourth amended statement of claim, from 9 August 2007 to 27 August 2007. The hearing of the application was adjourned again by consent to 20 September 2007. On 19 September 2007 the applicant filed a notice of motion seeking an adjournment of the hearing of the notice of motion filed on 12 June 2007 to amend the applicant's third further amended statement of claim. On 20 September 2007 I dismissed the applicant's notice of motion of 12 June 2007 and made the following further relevant orders: The applicant pay the respondents' costs of and incidental to the notice of motion. The respondents' oral application for an order that the costs be paid forthwith be reserved. ... The applicant's oral application for leave to file a further amended statement of claim be adjourned to the same date and time for hearing. I also made the following directions: The applicant lodge with the Court and deliver to the respondents any further proposed amended statement of claim by Wednesday, 10 October 2007. The respondents advise any objections to the proposed amended statement of claim by Monday, 29 October 2007. The applicant respond to any notice of objection by Friday, 2 November 2007. I adjourned the oral application for leave to file a further amended statement of claim to 7 November 2007. On 9 October 2007 the applicant's solicitors wrote to my associate and advised that a notice of motion seeking leave to amend the applicant's third further amended statement of claim would be filed and served by 19 October 2007, together with an affidavit annexing a copy of the proposed fourth further amended statement of claim. The applicant's solicitors were advised that an oral application had already been made for leave to amend the applicant's statement of claim. They were also advised that the orders so far made required the applicant to "lodge" with the Court any proposed amended statement of claim rather than file and serve that document. On 19 October 2007 the applicant's solicitors again wrote to my associate advising that the proposed fourth further amended statement of claim would not be ready until the following week. On 24 October 2007 the applicant sent to my chambers the proposed fourth further amended statement of claim advising that the applicant remained ready to argue its application for leave to amend its statement of claim on 7 November 2007. On 31 October 2007 the applicant wrote again to my Chambers and stated that the parties proposed that the respondent provide any objections to the proposed fourth amended statement of claim by Monday, 5 November 2007. It was also proposed that the matter proceed by way of a directions hearing on 7 November 2007, instead of for the purpose of hearing the substantive application. On 7 November 2007 I noted the parties' agreement: The parties are to confer in relation to the respondents' objections to the proposed fourth further amended statement of claim dated 24 October 2007. I made the following orders: The applicant is to deliver to the respondents and to the Court any revised proposed fourth further amended statement of claim on or before 12 November 2007. The respondents are to file any submissions in opposition to the proposed fourth further amended statement of claim (or revised version thereof) on or before 19 November 2007, together with any affidavit material or submissions that the respondents may seek to rely on, in respect of any order that they seek including by way of any condition to be imposed on any grant of leave to file the proposed fourth further amended statement of claim including: (a) an order that the applicant pay the respondents' costs thrown away by reason of the amendment as agreed or taxed, payable forthwith; and (b) an order relating to the time or times of commencement of any amendment. The applicant is to file and serve any affidavit material together with any submissions upon which it will seek to rely in support of: (a) the grant of leave to file the proposed fourth further amended statement of claim; and (b) in relation to any issue raised by the respondents in their submissions filed under order 3 above, on or before 23 November 2007. The proceeding be stood over to 27 November 2007 at 10.15am before Lander J. 6. The question of costs be reserved. All outstanding notices of motion be adjourned to the same date and time for mention. On 13 November 2007 the applicant's solicitors delivered to my chambers a revised proposed fourth amended statement of claim which was one day late. The respondents' responded to the revised proposed fourth amended statement of claim by filing affidavits in opposition. On 22 November 2007 the applicant's forwarded another proposed further fourth amended statement of claim in substitution of the proposed further fourth amended statement of claim which had been lodged on 13 November 2007. On 23 November 2007 the respondents wrote to my chambers advising that the proposed further fourth amended statement of claim which had been lodged on 22 November 2007 was substantially different to that which had been lodged on 13 November 2007. The applicant's application to file and serve a fourth further amended statement of claim did not proceed on 27 November 2007 because the respondents had not had sufficient time to address the proposed fourth further amended statement of claim which had been lodged on 22 November 2007. On 27 November 2007 I made the following orders: The applicant lodge with the Court and serve the respondents with the applicant's proposed statement of claim by 10 December 2007. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions by 14 December 2007. The respondents provide Lander J's associate and the applicant's solicitors with the respondents' written submissions by 25 January 2008. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions in reply by 12 February 2008. The applicant's application for leave to amend the applicant's statement of claim be adjourned until 9.00am on Wednesday, 20 February 2008. The applicant pay the respondents' costs of the application for leave to amend up to and including today. The questions as to the scale of costs and as to whether there is a further order that costs be paid forthwith be reserved. It can be seen that, with the exception of the hearing on 7 November 2007, an order has been made that the applicant pay the respondents' costs of the hearings. Moreover, an order was made that the applicant pay the respondents' costs of the applicant's notice of motion of 12 June 2007 which I dismissed on 20 September 2007. The question of costs of the hearing of 7 November 2007 was reserved. To avoid any doubt, there will be an order that the applicant pay the respondents' costs of that hearing. The applicant's application was heard and determined on 20 February 2008. On that day, I made the following orders: The applicant have leave to file a Fourth Further Amended Statement of Claim in the form initialled this day by Lander J ("FFASOC") on or before 29 February 2008, subject to the FFASOC as filed containing, in addition to paragraphs 103 to 105 inclusive as they appear in the initialled version, sub-paragraphs in each of those paragraphs: (a) pleading the applicant's claimed status as a person aggrieved and giving particulars thereof; and (b) stating the particular section(s) and paragraph(s) of the relevant statute that describe the entry in the respective Registers of which the applicant seeks rectification. The applicant file and serve with the FFASOC proper particulars of the fiduciary duty pleading (paragraphs 21 to 53) and of the misleading and deceptive conduct pleading (paragraphs 113 to 116). The time from which the amendments the subject of paragraph 1 take effect shall be reserved for trial, and for that purpose this order is a contrary order within the meaning of Order 13 rule 3A. The questions of costs the subject of the parties' submissions on 20 February 2008 be reserved. As the history shows, a number of drafts of a proposed fourth further amended statement of claim were lodged and considered by the respondents and the Court before leave was eventually given on 20 February 2008 for the applicant to file that document. The time lost between the filing of the notice of motion on 12 June 2007 and the grant of leave was almost exclusively a result of the applicant's inability to articulate its claim. On 7 March 2008 the applicant filed an amended application. Pursuant to the leave granted it also filed a Fourth Further Amended Statement of Claim (FFASOC), which remains the current pleading.