case_text: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ( Hammond ), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281.


case_outcome: cited

case_text: case clearly confronted the question whether, on the facts, there was a real risk that requiring answers to the question objected to would interfere with the administration of justice. The principle recognised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179 and applied in De Vonk was not in issue.


case_text: issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754.


case_text: 30 January 2006, an application was made to the Federal Magistrates Court for the judicial review of the Tribunal's decision of 22 April 2003. In the result, that application was successful: see the reasons for judgment of the Federal Magistrates Court in SZIFJ v Minister for Immigration [2008] FMCA 1170 , delivered 25 August 2008. As a result of that successful challenge, the case was remitted for hearing afresh on the merits in the Tribunal.


case_text: 30 December 2008, a differently constituted Tribunal affirmed, once again, the decision of the Minister's delegate not to grant the Appellant a protection visa. A further challenge by way of judicial review proceedings in the Federal Magistrates Court followed. On this occasion, the Appellant was unsuccessful. On 27 May 2009, the Federal Magistrates Court dismissed the Appellant's application for judicial review: see SZIFJ v Minister for Immigration [2009] FMCA 501.


case_outcome: applied

case_text: that regard it should not be assumed that these grounds also can be advanced as of right. On behalf of the Minister it was highlighted, correctly, with respect, that, not having been bases of challenge in the Federal Magistrates Court to the second Tribunal's decision, leave to raise these grounds was necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgement in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main area for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.


case_title: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1


case_outcome: followed

case_text: basis upon which the second Tribunal decision was challenged before the Federal Magistrates Court was apprehended bias on the part of the Tribunal. In this Court that ground is not repeated in the notice of appeal. Rather the notice of appeal contains two grounds which are as follows: His Honour erred in failing to find that the Second Respondent failed to take into account relevant considerations. Particulars (a) The Second Respondent failed to consider whether or not the Appellant, by reason of his status as a repatriated asylum seeker, member of the ethnic majority belonged to a particular social group for the purposes of the Convention. His Honour, bound by authorities of this Court, erred in failing to find that the Second Respondent breached section 424AA of the Migration Act and in failing to find that the Second Respondent's breach of section 424AA gave rise to jurisdictional error. Particulars (a) The Appellant asserts that a number of matters decided by this Court were wrongly decided in relation to this point, including, but not limited to SZLXI v Minister for Immigration [2008] FCA 1270 and SZLWI v Minister for Immigration [2008] FCA 1330. As to ground 2, there are decisions of judges of this Court in respect of s 424AA which hold that the extending of an oral invitation to provide information in response to particulars furnished by the Tribunal is permissive, rather than a matter of obligation. See SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 ; (2008) 103 ALD 589 ; and SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 ; (2008) 171 FCR 134. The ground of appeal invites me not to follow those decisions. I would only do that if I were persuaded that they are clearly wrong. On its face, the language of s 424AA is eloquent in the contrast between the use of the word "may" in para (a), and the use of the word "must" in para (b). As a matter of construction, it seems to me that para (a) of s 424AA is, indeed, permissive. I am not persuaded, on the basis of that examination, that either of the decisions mentioned should not be followed.


case_title: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 ; (2008) 171 FCR 134


case_text: Optus accepts that its disclosure of the Alchemy Paper in unmasked form to the applicants waived any client legal privilege that otherwise would have existed in respect of the communication contained in the Alchemy Paper itself. However, Optus says that: • the waiver is limited to that particular communication and does not extend to the legal advice referred to in the Alchemy Paper, in respect of which privilege has been specifically claimed; • the test to apply in determining whether privilege in the legal advice has been waived is that stated in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, at [29], as follows: ' What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large '; • the fact that the 'gist' of the legal advice was disclosed to the applicants (as Mr Bannon SC, on behalf of Optus, concedes) is not determinative of the question of waiver, because considerations of fairness need to be taken into account; and • since Optus has not sought to rely upon the legal advice in the proceedings in any way, there is no unfairness in seeking to maintain privilege in that advice. 11 Mr Bannon argued energetically that the common law test of waiver applies in the circumstances of this case, notwithstanding the provisions of s 122 of the Evidence Act 1995 (Cth). I am content to deal with the application to set aside the notice to produce on the basis that, as Optus contends, common law principles apply. 12 On that basis, however, it seems to me that Optus has waived privilege in the legal advice referred to in the Alchemy Paper. The waiver has come about because Optus has voluntarily disclosed the gist or conclusion of the legal advice recorded in the document identified in the Alchemy Paper. 15 Gyles J noted that the primary Judge in Bennett v CEO had correctly identified the decision in Mann v Carnell as providing guidance as to the law to be applied. However, Gyles J considered that the test had been misunderstood, at least in part. His Honour said this (at [68]): ' The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. ' 17 Mr Bannon submitted that the comments made by Gyles J in the last sentence of the passage extracted in par 15, above, should be regarded as qualifying the scope of the principle applied by his Honour. However, Gyles J specifically stated that Mann v Carnell had not implicitly overruled the line of authority upon which he relied in reaching the conclusion expressed in [65] of his judgment (see par 14, above). His Honour pointed out that the question in Mann v Carnell was whether a particular kind of limited disclosure had waived client legal privilege. He considered that the reasoning in that case cast no doubt on the principles to be applied where disclosure is made by one party to a dispute to the other party, in the absence of any special arrangements as to confidence (at [66]).


case_text: In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101, legal representatives of the Australian Customs Service ('Customs') stated that they had given advice to Customs that a particular regulation did not prohibit all public comment by an officer on matters of public administration. Gyles J, with whom Tamberlin J agreed, considered that the primary Judge had erred in drawing a distinction between the conclusion expressed in legal advice, on the one hand, and the reasons for that conclusion, on the other. This distinction had led the primary judge to the incorrect holding that disclosure of the conclusion did not involve disclosure of the reasons (at [62]). 14 Gyles J referred to a number of authorities supporting the proposition that a party who expresses a particular legal conclusion and asserts that it has received legal advice endorsing that view, will be taken to have waived privilege in the legal advice. Gyles J expressed agreement with this reasoning (at [65]): ' The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure. ' 16 In agreeing with the analysis of Gyles J, Tamberlin J observed (at [6]) that the position in the case before the Full Court may have been different if the legal advisors to Customs had simply asserted that the client had taken legal advice and had adopted a particular position having considered that advice. Tamberlin J pointed out that in these circumstances, the substance of the advice is not disclosed, but only the fact that some advice had been given and had been considered. His Honour went on: 'However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion.' Later in the judgment, his Honour observed (at [14]): ' Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived. '


case_text: The principle stated in Bennett v CEO, was applied by Sundberg J in Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299. In that case, the Commissioner produced, in response to an application under the Freedom of Information Act 1982 (Cth), an audit report. The audit report stated that the Commissioner would be relying upon certain specific grounds 'supported by ... opinions obtained from counsel.' Sundberg J held (at [49]) that: 'The conduct of the [Commissioner] in twice providing to the applicant an Audit Report that discloses the "gist" or "substance" of the privileged Audit Report documents is inconsistent with the maintenance of legal professional privilege over those documents and thus effects a waiver of the privilege. ' 19 I should add that I have not been invited to examine the legal advice in order to determine whether it deals with discrete issues, other than those in respect of which the Alchemy Paper records the conclusion reached. Mr Sheahan SC, on behalf of the applicants, accepted that if Optus claims that privilege in parts of the legal advice has not been waived because those parts relate to discrete issues, it may be appropriate for Optus to have an opportunity to test that claim. However, in that event, given my role in the substantive proceedings, it will be necessary for another Judge to inspect the legal advice in order to rule on Optus' claims. 20 For the reasons I have given , subject to what is said in the previous paragraph, I consider that any privilege in the legal advice referred to in the Alchemy Paper has been waived by Optus. The waiver, in my view, extends to legal advice on any of the issues identified in par 5, above. Accordingly, Optus' motion must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 3 April 2006 Counsel for the sixteenth and twenty-second respondents: Mr A Bannon SC with Mr M Leeming and Mr J Hewitt Solicitors for the sixteenth and twenty-second respondents: Atanaskovic Hartnell Counsel for the applicants: Mr J Sheahan SC with Mr M Darke Solicitors for the applicants: Freehills Date of hearing: 30 March 2006 Date of judgment: 3 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/348.html


case_text: Moreover, if the provisions of Part C of the POSA are ambiguous, so that they could be construed either as I consider them to read or as BP contends, then the ambiguity should be resolved in favour of the guarantors, because of the rule that their liability is strictissimi juris: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 561 per Mason ACJ, Wilson, Brennan and Dawson JJ. And this principle is also relevant in the construction of the indemnity in cl C4.1: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at 433-437 [17] - [23] esp at 437 [23] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.


case_title: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549


case_text: Cotton and Bowen LJJ came to the same conclusion (see 31 Ch D at 593). Cotton LJ said that the costs which a mortgagee could recover as an incident of the ordinary relationship with a mortgagor and surety included costs of proceedings, whether by action or otherwise, to recover the mortgage debt or any part of it. These, he said '... are costs relating to the mortgage debt, though not to the mortgage security ...'. Earlier, in Cotterell v Stratton (1872) LR 8 Ch App 295 at 302 Lord Selborne LC had treated a mortgage as having an implied contractual term entitling the mortgagee to those costs (see the explanation by the English Court of Appeal in Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 184-F).


case_outcome: considered

case_text: The costs which BP properly incurred in respect of its position as a party to the POSA ought be recoverable by it. That includes costs incurred by BP to the extent it acted reasonably in ascertaining or defending its rights under the POSA (cp: National Provincial Bank of England v Games (1886) 31 Ch D 582 at 592 per Cotton LJ applying Lord Cottenham LC in Dryden v Frost (1838) 3 My & Cr 670 at 675 [40 ER 1084 at 1086]). Thus, as Lord Cottenham LC pointed out in Dryden v Frost (1838) 3 My & Cr 670 at 676 [40 ER 1084 at 1087] if a mortgagee asserts a right to which the Court finds it was not entitled, those costs are not necessarily nor properly incurred in asserting a right which the mortgage gave the mortgagee. In other words, the mortgagee cannot recover costs arising from a mistake as to its rights or from an attempt to obtain something to which it is not entitled. Nor can a trustee recover costs incurred in fighting a doubtful case when he or she ought first to have sought the direction of the Court before continuing: Dagnell v Freedman & Co [1993] 1 WLR 388 at 396E-H per Lord Browne-Wilkinson. And, in determining whether costs have been reasonably and properly incurred, it is relevant to consider whether they bear a reasonable relationship to the value and importance of the subject matter in issue ( Skalkos v T&S Recoveries Pty Ltd [2004] NSWCA 281 ; (2004) 65 NSWLR 151 at 153 [8] per Ipp JA).


case_text: In Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86-87 Lord Dunedin said that the question as to whether a term is a penalty is one of construction of the contract, judged at the time of its formation and not at the time of breach. The High Court regarded this as expressing the current law (222 ALR at 308-309 [10]-[12]). Therefore the argument as to whether the deed of option was a penalty, as a matter of law, had nothing to do with whether Ringrow was in default under or in breach of the POSA. 65 The issue concerning whether the deed of option was a penalty and the construction of the arrangements between BP and the applicants did not arise out of or from any default or breach. It arose as a question of law, being the construction of the arrangements at the time they were made. It follows that BP cannot recover the costs of that issue under cll A14.2(f) or A16.9(a) of the POSA.


case_text: A Full Court of this Court, in Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1998) 84 ALR 734 (see at 735 cl 5), construed a standard form clause in a mortgage entitling a mortgagee to all its costs and expenses including costs between solicitor and own client incurred by the mortgagee in consequence of or on account of any default on the part of the mortgagor or incurred by the mortgagee for the preservation or in any manner in reference to the security. The Full Court followed what Street J had said (see 84 ALR at 741). Sheppard and Foster JJ noted that whatever might be the ambit of the rule, the question there was the proper construction of an express clause in the mortgage contract (84 ALR at 742).


case_text: It has never been suggested that a contractual right to costs in mortgages or trust instruments is affected by an estoppel of this kind. There would be obvious inconvenience were that to be the case. And, as McLelland J said in Elders Trustees & Executors Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 at 9209: 'A contractual stipulation as to how costs of future litigation are to be borne as between the parties is not vitiated by an inconsistent order for costs in that litigation.' 86 Again, cases involving costs under mortgages and trusts provide analogical assistance in characterizing the nature and extent of BP's contractual entitlement to its costs under cll A14.2(f) and 16.9(a) of the POSA. In Elders Trustees & Executor to Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 at 9208-9209 McLelland J said that '... "properly" means reasonably and in good faith'. As he said, the analogy with a trustee cannot be pressed too far. That is because equity allows a trustee more than party/party costs to exonerate him or her from expenses incurred in administering the estate (cf: Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 246 [49] and In re Beddoe; Downes v Cottam [1893] 1 Ch 547 at 555, 558, 562; Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 184-185).


case_outcome: discussed

case_text: Cotton and Bowen LJJ came to the same conclusion (see 31 Ch D at 593). Cotton LJ said that the costs which a mortgagee could recover as an incident of the ordinary relationship with a mortgagor and surety included costs of proceedings, whether by action or otherwise, to recover the mortgage debt or any part of it. These, he said '... are costs relating to the mortgage debt, though not to the mortgage security ...'. Earlier, in Cotterell v Stratton (1872) LR 8 Ch App 295 at 302 Lord Selborne LC had treated a mortgage as having an implied contractual term entitling the mortgagee to those costs (see the explanation by the English Court of Appeal in Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 184-F). 80 Again, in Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171, the English Court of Appeal gave a wide construction to a clause in a mortgage which entitled the mortgagee to recover costs which would not be allowable on a party and party or solicitor own client taxation by the court: see also In re Adelphi Hotel (Brighton) Ltd; District Bank Ltd v Adelphi Hotel (Brighton) Ltd [1953] 1 WLR 955 per Vaisey J. 86 Again, cases involving costs under mortgages and trusts provide analogical assistance in characterizing the nature and extent of BP's contractual entitlement to its costs under cll A14.2(f) and 16.9(a) of the POSA. In Elders Trustees & Executor to Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205 at 9208-9209 McLelland J said that '... "properly" means reasonably and in good faith'. As he said, the analogy with a trustee cannot be pressed too far. That is because equity allows a trustee more than party/party costs to exonerate him or her from expenses incurred in administering the estate (cf: Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 246 [49] and In re Beddoe; Downes v Cottam [1893] 1 Ch 547 at 555, 558, 562; Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 184-185).


case_text: In McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 ; (2000) 203 CLR 579 at 589 [22] , Gleeson CJ said: 'Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.' This statement was applied in Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522 at 528-529 by Gleeson CJ, McHugh, Gummow and Kirby JJ. And in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181 at 188[11] Gleeson CJ, Gummow and Hayne JJ said: 'Interpretation of a written contract involves, as Lord Hoffmann has put it ( Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 ; [1998] 1 WLR 896 at 912; [1997] UKHL 28 ; [1998] 1 All ER 98 at 114. See also the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350-352, and of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 259): "the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract." That knowledge may include matters of law, ...'


case_text: In Maher v Network Finance Ltd (1986) 4 NSWLR 694 at 697G-698A, McHugh JA (with whom Kirby P and Priestley JA agreed) said that a mortgagee who had succeeded in obtaining a curial order for costs had an independent right of action under the mortgage contract to require the mortgagor to pay its costs of taking the proceedings. McHugh JA pointed out that a person may be answerable for legal costs as a result of contractual or statutory obligations as well as by a curial order. 75 Thus, the making of the costs orders created a curial obligation to pay costs in Ringrow and the guarantors. In addition, the POSA created a contractual liability which was separate and apart from that adjudicated by Hely J, the Full Court and the High Court, except for the pre-litigation costs which were agreed and fixed by Hely J in the final orders which he made.


case_title: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 ; (2000) 203 CLR 579


case_text: Although the POSA did not create the relation of mortgagor, mortgagee and surety between Ringrow, BP, and the guarantors, the following observation by Fry LJ in National Provincial Bank of England v Games (1886) 31 Ch D 582 at 595 is apposite to the operation of cl A16.9(a). He held that an equitable mortgagee was entitled to recover, as money chargeable against the mortgaged property, its costs of seeking to enforce a promissory note given by a surety. Fry LJ said: 'A mortgagee is a creditor, he has also a security for the debt, and whether he is trying to get his money from the mortgagor, or from a surety, or out of the mortgaged property, he is trying to enforce his rights as mortgagee .' (emphasis added) 82 The costs which BP properly incurred in respect of its position as a party to the POSA ought be recoverable by it. That includes costs incurred by BP to the extent it acted reasonably in ascertaining or defending its rights under the POSA (cp: National Provincial Bank of England v Games (1886) 31 Ch D 582 at 592 per Cotton LJ applying Lord Cottenham LC in Dryden v Frost (1838) 3 My & Cr 670 at 675 [40 ER 1084 at 1086]). Thus, as Lord Cottenham LC pointed out in Dryden v Frost (1838) 3 My & Cr 670 at 676 [40 ER 1084 at 1087] if a mortgagee asserts a right to which the Court finds it was not entitled, those costs are not necessarily nor properly incurred in asserting a right which the mortgage gave the mortgagee. In other words, the mortgagee cannot recover costs arising from a mistake as to its rights or from an attempt to obtain something to which it is not entitled. Nor can a trustee recover costs incurred in fighting a doubtful case when he or she ought first to have sought the direction of the Court before continuing: Dagnell v Freedman & Co [1993] 1 WLR 388 at 396E-H per Lord Browne-Wilkinson. And, in determining whether costs have been reasonably and properly incurred, it is relevant to consider whether they bear a reasonable relationship to the value and importance of the subject matter in issue ( Skalkos v T&S Recoveries Pty Ltd [2004] NSWCA 281 ; (2004) 65 NSWLR 151 at 153 [8] per Ipp JA).


case_text: In Pan Australia Shipping Pty Ltd v The Ship 'Comandate' (No 2) [2006] FCA 1112 at [102] - [113] I examined the authorities on the meaning of the expressions 'arising out of' and 'arising from' in arbitration clauses in the context of whether disputes arose out of or from the relevant contract. As Lord Sumner observed in Produce Brokers Co Ltd v Olympia Oil and Coke Co Ltd [1916] 1 AC 314 at 328 the words are less precise than they look. He said that in strictness disputes arise not out of a contract but out of conflicting views taken by the parties to the contract. But, he said that the jurisdiction which the submission to arbitration confers is wide. 56 In contrast, here, the words 'arising out of' and 'arising from' in cll A14.2(f) and A16.9(a) are used with reference to an event so as to fix a liability on Ringrow. The event, of course, is a default under or breach of the POSA. Many costs could arise out of defaults by Ringrow under the POSA within cl A14.2(f). However, the POSA expressly recognized that the deed of option would be entered into by Ringrow and BP, yet, cl A14.2(f) does not refer to that deed. 57 I do not derive much assistance from the cases which were cited on the meanings of 'arising out of' or 'arising from'. Words in any particular contract, other than in standard form contracts used in, for example, international transactions, when construed by one court cannot be determinative of the construction of other words used in other contracts. It has not been suggested that the words employed in the POSA, the subject of cll A14.2 and A16.9, have been the subject of other judicial consideration.


case_text: In Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589 Gibbs CJ, Mason and Aickin JJ held that an estoppel arose to prevent a party claiming under a contractual indemnity after it had sought indemnity or contribution from a joint tortfeasor based on a statutory right and recovered only a proportion of its loss by way of contribution. The reason why the estoppel arose in that case was because the party who relied upon the contractual right could not obtain a judgment which was inconsistent with the partial recovery allowed under the statutory cause of action in the earlier proceedings. 41 Gibbs CJ, Mason and Aickin JJ said (at 147 CLR at 602-603) that there would be no estoppel unless it appeared that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. They said that generally speaking it would be unreasonable not to plead a defence, if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceedings. But they said that in that respect, there are a variety of circumstances, some referred to in earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding when it wished to litigate that issue in other proceedings. They gave as examples the expense, importance of the particular issue, and motives extraneous to the actual litigation and referred to illustrations given by the Supreme Court of the United States in Cromwell v County of Sac 94 US 351 (1876) at 356-357. 42 In a case like the present, a judgment given on BP's contractual claim for costs would not be capable of conflicting with the Court orders for costs. The curial entitlement for costs is, as the authorities considered in answering question 6 show, a different right to that provided by a contract. And, the contractual right is conditioned by the implied qualification in those authorities that what is recoverable are costs 'properly incurred'. Nor is there any inconsistency likely to arise between a curial award of costs, either on a party/party basis, and a contractual entitlement on a higher scale. Of course, had BP been denied an order for costs or been ordered to pay Ringrow's costs, a claim under the POSA by BP would be met by a defence that the costs claimed had not been 'properly incurred'. 43 For these reasons, no estoppel operates to prevent BP making the contractual claim.


case_text: In Potter v Dickenson [1905] HCA 26 ; (1905) 2 CLR 668 at 678-679 Griffith CJ (with whom Barton and O'Connor JJ agreed) said that in a court of law the term 'costs' included not only payments for proceedings in court, and other matters which can only be done by a solicitor, but also payments out-of-pocket, such as for court fees, and for securing the attendance of witnesses. He said that it included: '... all the necessary expenses of a party in establishing his case. When we speak of costs between solicitor and client, another distinction comes in between profit costs and out of pocket costs. As far as the client is concerned they are all out-of-pocket costs, but he will only be allowed to recover from the other party the proper charges incurred in establishing his case.'


case_title: Re Shanahan (1941) 58 WN (NSW) 132

case_text: In Re Shanahan (1941) 58 WN (NSW) 132 at 134 Street J said that the general rule was that, without any express stipulation or agreement, a mortgagee is entitled to recover from the mortgagor all costs reasonably and properly incurred by him in relation to its security. He said that that right accrued to the mortgagee as a legal incident annexed to the relationship of mortgagor and mortgagee and was available for the protection of the latter both in its personal capacity as a creditor and also in respect of its proprietary rights over the secured property. He held that only those costs which were recoverable by a mortgagee which were 'properly payable on a party and party taxation, and this is the general rule where litigation is undertaken by the mortgagee for the protection of his security: In re Queen's Hotel Co Cardiff Ltd [1900] 1 Ch 793 (see 58 WN (NSW) at 135). 78 Justice Street went on to hold that the relevant contractual provision in Re Shanahan (1941) 58 WN (NSW) 132 provided a wider entitlement to the mortgagee than the position at general law. The contract gave the mortgagee an entitlement to all costs and expenses in addition to those for which the mortgagor might have been liable at law or in equity to pay to the mortgagee. 79 Accordingly, Street J held that the mortgagor had undertaken to indemnify the mortgagee in respect of any expenditure which the latter might have incurred in their capacity as mortgagee and in relation to the secured debt. This, he said, imposed an obligation on the mortgagor 'to pay all costs which would be payable by the mortgagees to their own solicitor, and such costs, if properly payable on 'a solicitor and his own client taxation'. Thus costs which were unjustifiably or vexatiously incurred by the mortgagee so as to impose an unwarrantable burden on the mortgagor would not fall under the clause. And the taxing officer had a discretion to disallow some costs even though they might be payable by the mortgagees to their own solicitors, but the relevant clauses were to be construed widely (58 WN (NSW) at 136).


case_text: An appeal by the dealers and guarantors to the Full Court of this Court (Beaumont, Conti and Crennan JJ) was dismissed with costs ( Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32) as was their further appeal to the High Court ( Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306). The Lansvale site was reconveyed by Ringrow to BP earlier this year.


case_text: An appeal by the dealers and guarantors to the Full Court of this Court (Beaumont, Conti and Crennan JJ) was dismissed with costs ( Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32) as was their further appeal to the High Court ( Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306). The Lansvale site was reconveyed by Ringrow to BP earlier this year. 52 But, once the validity of the termination was established, as Hely J found, the deed of option was not a means of providing BP with any form of compensation monetary or otherwise in respect of a breach of the POSA (203 ALR at 305 [109]) applying Forestry Commission (NSW) v Steffanetto [1976] HCA 3 ; (1976) 133 CLR 507 at 515 per Barwick CJ, 519 per Mason J, see too Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306 at 311 [21] . When Ringrow and the other applicants brought their appeals, the sole issue was whether the deed of option was unenforceable by BP because it was a penalty. The cumulative imposition of the option on the liquidated damages clause in the POSA was also alleged to be penal (222 ALR at 312 [25]). 53 Justice Hely did not make an order for specific performance of the option. He said that was because that might have had an unintended effect of preventing Ringrow from challenging the valuation process which the option provided for fixing the price payable by BP on its exercise (203 ALR at 317 [159]; 222 ALR at 308 [6]). I was informed by the parties that BP did not press for such an order at the final hearing. However, his Honour's observations highlighted that enforcement of rights under the option was not the same as enforcement of other rights under the POSA. 54 Even so, BP contended that but for Ringrow's defaults and breaches of the POSA, it would not have been involved in the need to litigate the issue of penalties on the two appeals. BP argued that Ringrow's defaults under and breaches of the POSA were a cause of its costs on the penalties issue before not just Hely J but also in the appeals.


case_text: After delivering the principal judgment, Hely J required the parties to make submissions as to the form of relief. He delivered a further judgment on the form of final orders ( Ringrow Pty Ltd v BP Australia Pty Ltd [2003] FCA 1466). At that time, the only issue was how the quantum of the order for costs should be determined in default of agreement, between the parties. BP had sought orders that the applicant in each proceeding pay its costs (including those incurred in the Supreme Court of New South Wales before the matters were transferred to this Court) either in an amount to be agreed, or in default of an agreement in an amount to be determined by a suitably qualified costs assessor. Alternatively, BP sought a direction under O 62 r 12 of the Federal Court Rules and that the costs be assessed by the taxing officer in accordance with ss 208F and 208G of the Legal Profession Act 1987 (NSW) and alternatively an order pursuant to O 62 r 5 that the costs of the Supreme Court proceedings be determined by the Supreme Court ([2003] FCA 1466 [2]-[3]). 21 Justice Hely rejected BP's applications for the assessment of costs on anything other than the ordinary operation of the rules of this Court in respect of both the Supreme Court part of the proceedings and the balance conducted in this Court. He held that in the interests of efficiency there should be only one quantification exercise and that BP was entitled to receive its taxed costs of the proceedings pursuant to O 62 r 4 ([2003] FCA 1466 at [13]-[14]). Hely J referred to evidence that BP's actual costs of the proceedings were nearly $1 million and that it could expect, if its costs were taxed pursuant to this Court's rules, to recover about $500,000 but would be likely to recover about $750,000 if an assessment were made pursuant to the Legal Profession Act 1987 (NSW) ([2003] FCA 1466 at [11]). 23 The critical issue in the proceedings before Hely J (apart from the issue of the validity of the termination of the POSA which was later conceded before Hely J), and the proceedings on appeal, was whether the dealers and guarantors were correct in their claims that the liquidated damages clause and the rights which BP had under the deed of option amounted to penalties and were therefore unenforceable. 24 In the argument before me, the substantial issue was whether costs involved in proceedings before Hely J and the appeals concerning the legal characteristics of the option could be said to arise out of any default by Ringrow under the POSA (cl A14.2(f)) or to be costs or expenses incurred by BP in exercising or enforcing any of BP's powers, rights or remedies under the POSA or otherwise arising from a breach of the POSA by Ringrow (cl A16.9(a)). 25 Justice Hely had held that while there were separate agreements, including the deed of option, between BP and each dealer and the respective guarantors, there was one overall arrangement between the respective groups of parties for the sale of the relevant service station site and the exclusive supply and sale of BP petroleum products to the dealer on that site. Justice Hely considered the totality of the transaction indicated that each option to repurchase the service station site was restitutionary in nature and was given as part of the vendor and purchaser arrangements: '... rather than as a price to be paid in terrorem in the event of a breach of the POSA .... The determination of a POSA provides an occasion for the exercise by BP of the options, but the options are not themselves "the result of the default or the price to be paid for it". ... Of course, the entitlement to exercise the option was dependent upon termination of the POSA rather than upon commission of a breach of the POSA.' (203 ALR at 304 [107]-[108]) (his Honour's emphasis) 26 He held that the deed of option was not a means of providing BP with any form of compensation in respect of a breach of the POSA (203 ALR at 305 [109]). Hely J went on to find that the dealers' breaches of the POSA relied on by BP to justify the termination, were deliberate, calculated, constant and secretive and such as to disentitle them to any equitable relief (203 ALR at 316 [152]-[156]). 27 In the Full Court, the dealers and guarantors argued that the provisions of the option requiring a retransfer of the Lansvale and other service station sites amounted to a penalty (see e.g. 209 ALR at 36 [18], 38-43 [21]-[24] where Beaumont J set out the summary of the argument). The joint judgment of the High Court said that the case before Hely J '... turned upon the law concerning penalties' (222 ALR at 308 [9]). The dealers and guarantors had argued that the word ' terminated' in cl 1.2(a) of the option deed referred only to termination for breach (222 ALR at 310 [17]) and that that could occur for trivial matters as well as substantial ones so that, in effect, the option constituted a penalty. The High Court rejected all arguments that the option deed was a penalty (222 ALR at 311 [20]). The High Court did not need to consider whether cl 1.2(a) of the option deed could enable the option to be exercised if the POSA were terminated for breach under cl A13.2.1 or that the option could be exercised and the POSA were terminated on grounds other than breach under cl A13.2.2. And, their Honours said it was not necessary to deal with various contentions of BP to the effect that the doctrine of penalties was incapable of applying to the circumstances of the case, for example, on the basis (which Hely J used as set out above) that the breach was not the cause, but merely the occasion, for the option to be triggered (222 ALR at 315 [36]). 28 Ringrow argued that the word 'default' in cl A14.2(f) was used in the context of a breach which was capable of rectification by the dealer. It said that this followed from a consideration of the right of termination given under cl A13, to which the reasons of the High Court also referred. Thus, in cl A13.1, if either a dealer or BP failed to pay money due to the other under the POSA and that default were not totally rectified within 30 days after written notice of the default were given by the dealer or BP (as the case required), the party giving notice was entitled to terminate the POSA immediately or at any time after that by giving written notice of termination to the party in default. Clause A13.2 which Hely J held BP had validly utilized, provided that if the dealer breached certain provisions of the POSA, including cl A4.16 (which dealt with sale of non BP petroleum products), and the default were capable of rectification but was not totally rectified within 30 days after written notice of both the default and what was needed to remedy it were given to the dealer, BP was entitled to terminate the POSA at any time thereafter by giving a written notice of termination to the dealer. BP also had a right to terminate the POSA if it reasonably believed for any reason, the existence of certain matters, and this was so whether or not the dealer had breached any provision of the POSA (cl A13.2.2). For example, BP could terminate the POSA under cl A13.2.2 by giving not less than 30 days written notice of termination to the dealer if the site were no longer suitable as a retail fuel outlet operated under BP's trademarks. 29 Ringrow argued that these differing provisions for termination affected the construction of the term 'default' in cl A14.2(f). It said that construction which Hely J had arrived at (which the High Court found it not necessary to consider) that the rights to exercise the options were not themselves the result of the default or the price to be paid for it (203 ALR at 304 [107]) showed that the litigation concerning the validity of the deed of option was not capable of being characterized as 'arising out of ... any default by [Ringrow] under [the POSA]' (cl A14.2(f)). Ringrow argued that the same reasoning applied to cl A16.9(a) so that so much of the costs incurred by BP involved in dealing with the validity of the option deed which it now seeks to recover did not arise from a breach of the POSA by Ringrow. 32 Ringrow points to the fact that under its written demand, BP recited that it had incurred legal costs on account of the proceedings before Hely J and the appeals 'and its exercise of the [deed of] Option. Those costs arose out of Ringrow's default under the POSAs'. BP has not segregated the costs it claims into categories so as to identify the discrete costs of enforcing: • its rights under the option; • the individual proceedings and appeals (and the costs in each referable to the option) . 33 BP argued that because Ringrow put in issue whether the deed of option constituted a penalty for breach of the POSA and connected that argument to BP's rights under SC 1.2(b) and (e), BP's costs of enforcement of the deed of option or its rights thereunder were caught by either cll A14.2(f) or A16.9(a). Significantly, SC 1.2(e) identifies the deed of option as a separate agreement and provides that if the POSA is terminated and BP has exercised its right to acquire the Lansvale site under the deed of option, then liquidated damages would not be payable to BP under the POSA. 34 BP argued that the breaches of the POSA committed by Ringrow led directly to the termination of the POSA and the triggering of the option. It argued that but for those breaches the POSA would not have been terminated and BP would not have attempted to exercise the option because of the defaults. BP identified the defaults as the effective cause of the sequence of events it put in motion, including its attempt to exercise and enforce the option. It argued that it had no choice but to defend the proceedings at each level of trial and appeal if it wished to exercise and enforce the rights which had accrued to it as a consequence of the breach by Ringrow of the POSA. 38 Ringrow argued that an estoppel arose because Hely J, on BP's application, made orders under cll A14.2(f) and A16.9(a) for the payment of costs and expenses incurred by BP prior to the commencement of the proceedings before him. Ringrow also said an estoppel arose from the making of the costs orders pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) as part of the final orders made by Hely J and in each appeal. 46 The proceedings before Hely J necessarily required his Honour to determine the validity of BP's termination of the POSA. Until his Honour made final orders on 15 December 2003 which declared that the termination of the POSA was valid, BP was entitled to prosecute the proceedings before Hely J in aid of enforcing, by a curial decision, the legal efficacy of its act of termination. Moreover, that termination, on his findings, indisputably arose out of or from a default by Ringrow under the POSA and a breach of the POSA by it within the meaning of both cll A14.2(f) and A16.9(a). 47 But once Hely J made the final orders declaring BP's termination of the POSA valid and effective, Ringrow accepted that position and withdrew it from the controversy which it pursued on appeal to the Full Court and the High Court. That issue was whether the deed of option or its enforcement amounted to a penalty. 48 Leaving aside any unperformed obligations under the POSA, such as the payment by Ringrow and the guarantors of any amounts due to BP, including for costs, once Hely J made the final orders, BP and Ringrow were not contesting issues to do with Ringrow's defaults under or breaches of the POSA. The rights in contest in the two appeals were solely to do with the deed of option and whether BP's exercise of its rights under that option amounted to a penalty imposed on Ringrow for its established defaults under or breaches of the POSA. 49 Critically, however, no order made in either of the appeals was sought or could have affected the provisions of, or powers, rights or remedies of the parties contained in the POSA. The POSA had been terminated and the termination was never the subject of the appellate contests. What was then at issue was whether the objective fact of the termination of the POSA gave BP enforceable rights under the separate and independent deed of option. Ringrow's resistance to BP's exercise of the option was a breach of the deed of option. 50 BP argued the costs of it enforcing the option arose indirectly from, and were caused by, Ringrow's defaults under and breaches of the POSA which led to its termination so that its rights to costs under cll A14.2(f) and or A16.9(a) were enlivened. As I have found, that argument should be accepted in respect of the proceedings before Hely J, where the issue of the validity of BP's termination of the POSA required resolution. Ringrow's case before his Honour combined an attack on the validity of the termination (until the belated and qualified concession) and the enforceability of the option. BP had to establish the validity of the termination which it did by Hely J making of the final orders. Hely J made detailed findings of Ringrow's and the other dealer's defaults under and breaches of the POSAs. He had to do so to dispose of Ringrow's qualification to its concession about the validity of the termination of the POSAs. That qualification referred to the possible operation of s 16 of the Petroleum Retail Marketing Franchise Act 1980 (Cth) (203 ALR at 298 [80]) which Hely J found did not avail Ringrow or the other dealers (203 ALR at 317-318 [161]-[171]. That finding was integral to his Honour's decision to make the final declarations of the validity of the termination of the POSAs (203 ALR at 318 [171]). 51 Ringrow and the other applicants contested the validity and enforceability of the termination of the POSAs throughout the trial before Hely J. Because of that BP must be entitled to recover its costs of those proceedings under cll A14.2(f) and A16.9(a). There was no bright line between the argument on the issue of penalty and the other issues before Hely J which would allow, as a matter of common sense or law, some division of the costs payable under the clauses by reference to issues. A critical reason why Ringrow argued that the option was not enforceable before Hely J was that the POSA had not been terminated.


case_text: In Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82 at 97B-C, Cole J held at general law a mortgagee is only entitled to recover party/party costs under its mortgage contract in the absence of a contractual basis which had the effect of widening the entitlement. He followed Hodgson J in AGC (Advances) Ltd v West (1984) 5 NSWLR 301 at 304, as a matter of comity, in coming to that conclusion. 87 In other contexts, such as a right of a trustee in bankruptcy to recover costs, the word 'properly' has been held to mean work reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Bankruptcy Act 1966 (Cth) conformably with the trustee's duty to perform the work with reasonable care and skill and in an efficient and economical way ( Adsett v Berlouis (1992) 37 FCR 201 at 212 per Northrop, Wilcox and Cooper JJ). But the limits on what a trustee may recover as 'properly' incurred have become somewhat unsettled in recent years as Ormiston JA demonstrated in Nolan v Collie [2003] VSCA 39 ; (2003) 7 VR 287 at 303-308 [44] - [53] . However, it is unnecessary to explore this question further because I agree with the view expressed by Cole J in Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82 at 96E-97A. He said that while the discussion in the cases was helpful, the question in a case like the present is one of the construction of a particular contract, in this case, in the form of the POSA. As he said, a mortgagee does not enter into a mortgage assuming that default will occur. However, it takes steps to protect itself against the possibility that default will occur. If it does, a mortgagee will, or may, incur additional costs, charges and expenses both internally and to third parties. It is to guard against the exposure to such costs that a mortgagee, or in a case such as the present, BP, provides contractually for the payment of costs. Justice Cole held that if as a result of default, the lender incurs such costs they would fall within an expression such as 'all other costs of the lender' arising 'from default' under the securities and would also amount to being 'costs and expenses of default'. Obviously, the contract there was in different words and was entered into in different circumstances from the POSA in the present dispute.


case_title: Skalkos v T&S Recoveries Pty Ltd [2004] NSWCA 281 ; (2004) 65 NSWLR 151


case_title: Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522


case_outcome: referred to

case_text: Because the respondent must exclude delegateship and membership as a reason for termination, normally sworn evidence denying any such reason is necessary and, in most cases, an explanation of the real reason for dismissal consistent with the absence of delegateship or membership as a reason is, in a practical sense, also necessary. An instructive example of the interaction between the two categories of evidence and the consequence of partial acceptance only of the explanations proffered may be seen in Maritime Union of Australia & Ors v Geraldton Port Authority & Ors [1999] FCA 899 ; (1999) 93 FCR 34 esp at [313], [325], [332], [338], [339], [345], [350] and [351]. 30 Where more than one person contributes to a decision to dismiss it may be necessary to lead appropriate evidence from each such person. In the present case, for reasons which appear later, it was necessary for Ms Hobbs and Mr Grbic, in particular, to persuade me that neither delegateship nor membership was a reason for the dismissal of the applicants. 31 The respondents did not contend that the applicants had failed to make out any element of their own case. Properly, in the circumstances, the respondent accepted that the onus fell to it to displace the legislative presumption arising from s 809 of the WR Act. The case therefore centred on this issue. 32 The respondent's case was based on two foundations: first, an explicit denial from relevant decision makers that the retrenchment of either of the applicants was for the reason that he was a delegate or member of an industrial organisation; and, secondly, an explanation of the 'real reason' for dismissal. 33 The real reason, on the respondent's case, was that on 27 September 2006 the process followed to select persons, including the applicants, to be retrenched was:- • pay regard to volunteers but refuse to release any volunteer whose skills were important to retain; • thereafter select the least skilled employees to make up the numbers required to be retrenched.


case_outcome: distinguished

case_text: Faced with the emerging difficulty of the unexplained coincidence between Mr Zafiriou's table and the identity of those actually selected for retrenchment, counsel for the respondent urged upon me that Mr Zafiriou's evidence, referred to earlier, about the representative sample explained how it was not impossible that a selection could be made which corresponded with the final outcome. It was submitted that I should avoid dabbling in probability theory or statistical analysis. The submission was, in the circumstances, not surprising. It was a legitimate attempt to quarantine the area of greatest danger for the respondent's case. I was referred in support of the submission to R v GK [2001] NSWCCA 413 ; (2001) 53 NSWLR 317 and, in particular, to observations by Mason P in [24] to [28] at pages 323-4. 106 I do not find the passages cited by counsel to be of much assistance in the present case although they touch upon an interesting aspect of the requirements of proof, particularly in criminal trials. 107 R v GK was a case concerning evidence in relation to DNA analysis. The two specific questions in the case concerned whether a trial judge had been correct to leave to a jury expert evidence about paternity index and relative chance of paternity. In the result the New South Wales Court of Criminal Appeal found that the trial judge had erred in not allowing the first category of evidence to be put before the jury but had correctly concluded that evidence in the second category should be kept from the jury. There are interesting discussions of the reason for the rejection of Bayes Theorem and of the 'prosecutor's fallacy'. Underpinning discourse in this area is a concern that juries may not understand the non-inclusionary nature of statistical evidence, particularly DNA statistics. 108 In the present case the problem for the respondent is in persuading me that the striking concurrence between the calculations in Mr Zafiriou's table and the selection of those who were ultimately retrenched (or almost retrenched) should have no bearing upon my conclusion whether the respondent has displaced the legislative presumption. 109 Counsel for the applicants suggested that common sense denied the likelihood of such a close correspondence as a pure coincidence. I agree. I cannot accept the submission that I should simply put the matter aside and am bound to accept the bland assertions from Mr Grbic and Mr Zafiriou that it was just coincidence. 110 One possible view of the procedure required under clause 22 of the Certified Agreement is that redundancy packages should normally be available to volunteers unless their retrenchment may legitimately be denied by a real need to retain their individual skills. Accommodating the wishes of the volunteers also has benefits for those who risk being retrenched in their place. 111 The exception to accommodating the wishes of volunteers depends upon a value judgement about the 'skills required to maintain the company's future commercial viability' (clause 22). Similarly, in the event that compulsory retrenchments are required, the judgement to be made concerns 'skills required to maintain the company's future viability' (clause 22).


case_outcome: affirmed

case_text: is an appeal against a judgment of a Federal Magistrate, delivered on 8 May 2009 ( SZMZH v Minister for Immigration and Citizenship [2009] FMCA 445) , in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ( the Tribunal ), which was made on 20 October 2008 and handed down on 6 November 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant protection visas to the appellants. The appellants are husband and wife and are citizens of India. They arrived in Australia on 15 March 2008. On 17 April 2008, they lodged an Application for Protection Visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the Application for Protection Visas on 30 June 2008. On 21 July 2008, the appellants applied to the Tribunal for a review of that decision. Before the Tribunal, the first appellant, who is the wife and to whom I shall hereafter refer as the appellant , claimed to have a well-founded fear of persecution arising from her activities with the SEWA Bharat, the All India Federation of Self-Employed Women's Associations, for whom she had undertaken voluntary work in her home town. She claimed that she became known as an activist for women's rights after playing a role in the introduction of minimum wages into some factories in her local area. She claimed that she had participated in many strikes and protests against factory owners throughout 2007. She claimed that she had been approached by workers from the ATLAS Company to lead them for the purpose of "doing something for them," and, in response to this request, she organised meetings of local women with a view to arranging protests and strikes. She claimed that one of the women who attended the meetings informed the ATLAS Company of their plans and that, as a result, on 31 January 2008, as she was leaving her home to attend a rally, she was approached by a hired gang (called goondas) who threatened her and assaulted her by hitting her in the face. In her written materials, the appellant claimed that, as a result of this attack, she fainted and was hospitalised for nearly a month. She claimed that she feared for her life and left India for Australia with the assistance of her husband who was in Taiwan at the time. She claimed to fear harm in India from hired thugs as a result of her industrial and political activities on behalf of women workers, and also claimed that she could not relocate elsewhere in India. The Tribunal had serious reservations about the appellant's veracity and was not satisfied that the appellant was a witness of truth. In coming to this conclusion, the Tribunal referred to significant discrepancies in the appellant's evidence. Examples of these were her inconsistent statements as to the year in which the January attack took place; her differing accounts of how long she had been hospitalised after the January attack; and the unsatisfactory and inconsistent accounts of the extent to which she was involved in protests against factories and, in particular, against ATLAS Company. The Tribunal noted that the letters submitted by the appellant in support of her claims were general and vague and did not provide any significant or detailed information regarding her claims. In the end, the Tribunal rejected all of the appellant's core claims, including that she had ever been a member of SEWA Bharat, that she had become known as an activist for women's rights, that she had participated in protests, and that she had been attacked in the manner and in the circumstances alleged by her. The Tribunal concluded that the appellant would not experience serious harm should she return to India. Indeed, the Tribunal found that, having regard to independent country information, the appellant would be able to avail herself of adequate state protection were she to return to India. Furthermore, the Tribunal found that the appellant could relocate elsewhere in India in order to avoid harm, should she so desire. The Tribunal concluded that, since the appellant's husband's only basis for seeking protection was to rely upon the appellant's claims, he too was not a person to whom Australia owed protection obligations.


case_text: far as actual bias is concerned, I do not think that such a charge has been made out in this case. In order for such a conclusion to be reached by this Court, there would have to be much more by way of evidence than is presently before me. The reasons of the Tribunal, taken on their own, do not betray actual bias on the part of the Tribunal. As the Federal Magistrate said at [16] of his reasons: The applicant has done no more than make the allegation. She has provided no indication of how these difficult hurdles to establishing that allegation may be overcome. The "difficult hurdles" referred to by the Magistrate were those cited by him from the judgment of Lander J in Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877. For the above reasons, there is no error apparent in the decision of the Tribunal or in the approach taken by the Federal Magistrate in reviewing that decision. For these reasons, I propose to dismiss the appeal with costs. The first respondent has sought a fixed sum costs order. The amount which is claimed ($3,470.00) is reasonable. The appellants made no submissions against the making of such an order. Accordingly, I order that the costs of the first respondent be fixed in the amount of $3,470.00. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 19 August 2009 The Appellants appeared in person Counsel for the First Respondent: Ms L Clegg Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submitted save as to costs Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/905.html


case_text: speaking, the Tribunal is under no duty to inquire or to investigate claims imposed upon it (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 ; (2004) 78 ALJR 92). Such a duty will only arise in rare cases. Those cases will be where it is very obvious that material is readily available which is centrally relevant to the decision to be made (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170). As I have already said, nothing in the materials before me suggests that such a course of investigation should have been undertaken by the Tribunal in the present case.


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_text: respondent said that given the power to administer an oath or affirmation (s 52(4)), the fact that the obligation to answer questions is subject to only limited excuses (s 52(6) and s 53) and the right to legal representation (s 52(3)) a power in the ABC Commissioner to regulate and control an examination must be implied. That conclusion was, said the respondent, supported by the decision of the Full Court of this Court in Australian Securities Commission v Bell (1991) 32 FCR 517 (' Bell '). In Bell , an inspector was conducting an examination in the course of an investigation by the Australian Securities Commission ('the Commission') and he made an order that an examinee not be represented by a particular legal practitioner. The order was made on the basis that the legal practitioner had appeared for a number of examinees and the legal practitioner's firm had been involved in the preparation of a prospectus which might be under consideration in the course of the investigation. The Australian Securities Commission Act 1989 (Cth) contained provisions to the effect that an examinee may have legal representation (s 23(1)) , that an examination was to be in private (s 22(1)) , that the inspector could determine who was to be present at the examination (s 22(1)) , and provisions dealing with the inspector's powers to control the conduct of a legal representative at an examination (s 23(2)). The decisions in A, B and D and Bell were referred to with approval by the Queensland Court of Appeal in Re Whiting [1994] 1 Qd R 561. A firm of solicitors was acting for a police officer who was the subject of a complaint under the Criminal Justice Act 1989 (Qld) and for three police officers who were witnesses in the proceeding. The Chairman of the Criminal Justice Commission ruled that the same legal representative would not be authorised by the Commission to represent both the potential witnesses and the officer against whom the complaint was made. An application to the Supreme Court challenging the order was dismissed. In Stockbridge v Ogilvie (1993) 43 FCR 244, French J followed Bell and in the course of his reasons said (at 254): 'Where one lawyer seeks to represent a number of examinees in the same investigation, it may be thought that there is a risk that without consciously intending any impropriety that lawyer might divulge to one examinee what has passed in the examination of another. The extension of a restriction to all members of a given firm may be controversial: see Wood v National Companies & Securities Commission (1990) 2 WAR 176. However there are matters of judgment and assessment involved. It is of course, not the role of the ASC to supervise the lawyer-client relationships of those who appear before it in s 19 examinations. It is only where a conflict of interest has some actual or potential impact on the investigative process that a direction based on such a concern would be within power.' In Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers. The statutory provisions in this case are very general. They may be contrasted with the quite detailed provisions under consideration in cases such as A, B and D and Bell . Nevertheless, I think it is clear that the ABC Commissioner must have the power to regulate and control the conduct of proceedings before him. He can determine when and where an examination will be held and, providing a proper basis exists, he can regulate and control how the examination is to proceed and who may be present. He is charged with the function of conducting an investigation into suspected unlawful conduct and may bring proceedings for a civil penalty in relation to that conduct. He must be taken to have by implication the power to make orders or give directions which will ensure the integrity of the investigation and, to a point, its effectiveness. In my opinion, he has the power to exclude a particular legal practitioner from acting or appearing for an examinee at an examination. It is appropriate for me to consider whether, insofar as the direction is within power, there was a proper basis to exercise the power. The test as formulated in A, B and D is whether the decision-maker 'concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute' (at 448). In Bell , Lockhart J said that he favoured a test which presented a slightly higher barrier of 'will or is likely to' prejudice the investigation, although he went on to say that 'the difference in practical application will depend on judicial approach to the facts of the particular case' (at 522). In my respectful opinion, although there is something to be said for a test which presents a slightly higher barrier, the weight of authority is in favour of the test of 'will or may' prejudice the investigation and it is that test which I will apply.


case_text: first question is whether examinations under s 52 of the Act are to be conducted in private. I did not understand the applicant to suggest that the examinations are not to be conducted in private. In my opinion, they are to be conducted in private. In Constantine v Trade Practices Commissioner (1994) 48 FCR 141 (' Constantine ') a person (the applicant) was served with a notice pursuant to s 155(1)(c) of the Trade Practices Act 1974 (Cth) requiring him to give evidence about matters specified in the notice and to produce documents. He was permitted to have legal representation within certain limits. However, as a condition of that permission the applicant's legal representative was required to give certain undertakings as to non-disclosure. That condition was challenged by the applicant. Jenkinson J first considered whether examinations pursuant to a notice under s 155(1)(c) of the Trade Practices Act 1974 (Cth) were private. He held that they were private. He said (at 146-147): 'The authorities on which Mr Merkel relied as favouring privacy in the conduct of investigations into suspected contraventions of the law are concerned with prohibition of the investigator's inclination to proceed in public, not with prohibition of disclosure by those examined of what has occurred during the examination: see Hearts of Oak Assurance Co Ltd v Attorney-General [1932] AC 392; Re Pergamon Press Ltd [1971] Ch 388 at 400, 404; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435. In the latter case Needham J observed (at 445): "There is much to be said for the proposition that the inspector [investigating the affairs of several companies under Pt VIA of the Companies Act 1961 (NSW)] is bound to observe the confidences of the witnesses whom he examines; none of those cases has anything to say about the right of the witness to disclose what the inspector said to him and what he said to the inspector." However, observance of the confidences of the witnesses requires privacy of their examination. My conclusion is that an examination pursuant to a notice under s 155(1)(c) served for the purpose of investigating whether a contravention of the Act has occurred is required to be held in private. A clear legislative intention is to be discerned in the provisions of the Act, particularly in Pt VI and s 163 that the Commission should have the function of taking and authorising curial proceedings, civil and criminal, in respect of contraventions of the Act. Exercise in public of the investigative powers conferred by s 155 on the Commission, to enable it to determine whether or not a contravention has occurred and to procure means of proving in a curial proceeding that a contravention has occurred, is so likely to be inimical to the effectiveness of the investigation and to interests of those who are the subjects of investigation, both witnesses and those suspected of contravention, that the requirement of privacy may be seen to have been intended by the legislature, notwithstanding that the requirement is not explicitly stated in the Act: cf Hearts of Oak Assurance Co Ltd v Attorney-General (supra) at 401. Whatever may be the position of the person who is examined on oath or affirmation, there is authority for the conclusion that his legal representative, present during a private investigative examination, may lawfully be required by the investigator to undertake not for a certain time to disclose to others what has been disclosed to the legal representative during the examination. Re London and Northern Bank Ltd [1902] 2 Ch D 73 was a case in which a solicitor was held by the Court of Appeal to have been rightly required, as a condition of his being permitted to represent a witness under private investigative examination by the liquidator in a winding-up, to undertake to the Registrar conducting the examination not to disclose to others information required at the examination. The solicitor was employed by a firm which was acting for a company then engaged in litigation with the company in liquidation and that circumstance was noticed by the members of the Court as justifying the Registrar's requirement.' In this case the requirement that an examination be held in private arises by implication rather than by reason of an express provision. I do not think that that is a ground upon which to distinguish what the Full Court said in Bankers Trust and I agree with what Jenkinson J said in Constantine (at 148): 'Whether the legislative requirement of examination in private be expressly given or laboriously found, the necessary implications must in my opinion be the same.' Having decided that an examination must be conducted in private and that an ABC Commissioner has the power to make a non-disclosure direction, I now address the question whether the ABC Commissioner has the power to direct that an examinee not be represented at an examination by a particular legal practitioner. The right to legal representation is an important right and may well have been implied in this case even in the absence of s 52(3) of the Act ( Constantine per Jenkinson J (at 150)). It seems to me that having regard to the relevant statutory provisions and the authorities which I will now discuss, the ABC Commissioner has such a power.


case_text: Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers.


case_text: reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday & Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.


case_title: Hearts of Oak Assurance Company Limited v Attorney-General [1932] AC 392

case_text: first question is whether examinations under s 52 of the Act are to be conducted in private. I did not understand the applicant to suggest that the examinations are not to be conducted in private. In my opinion, they are to be conducted in private. In Constantine v Trade Practices Commissioner (1994) 48 FCR 141 (' Constantine ') a person (the applicant) was served with a notice pursuant to s 155(1)(c) of the Trade Practices Act 1974 (Cth) requiring him to give evidence about matters specified in the notice and to produce documents. He was permitted to have legal representation within certain limits. However, as a condition of that permission the applicant's legal representative was required to give certain undertakings as to non-disclosure. That condition was challenged by the applicant. Jenkinson J first considered whether examinations pursuant to a notice under s 155(1)(c) of the Trade Practices Act 1974 (Cth) were private. He held that they were private. He said (at 146-147): 'The authorities on which Mr Merkel relied as favouring privacy in the conduct of investigations into suspected contraventions of the law are concerned with prohibition of the investigator's inclination to proceed in public, not with prohibition of disclosure by those examined of what has occurred during the examination: see Hearts of Oak Assurance Co Ltd v Attorney-General [1932] AC 392; Re Pergamon Press Ltd [1971] Ch 388 at 400, 404; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435. In the latter case Needham J observed (at 445): "There is much to be said for the proposition that the inspector [investigating the affairs of several companies under Pt VIA of the Companies Act 1961 (NSW)] is bound to observe the confidences of the witnesses whom he examines; none of those cases has anything to say about the right of the witness to disclose what the inspector said to him and what he said to the inspector." However, observance of the confidences of the witnesses requires privacy of their examination. My conclusion is that an examination pursuant to a notice under s 155(1)(c) served for the purpose of investigating whether a contravention of the Act has occurred is required to be held in private. A clear legislative intention is to be discerned in the provisions of the Act, particularly in Pt VI and s 163 that the Commission should have the function of taking and authorising curial proceedings, civil and criminal, in respect of contraventions of the Act. Exercise in public of the investigative powers conferred by s 155 on the Commission, to enable it to determine whether or not a contravention has occurred and to procure means of proving in a curial proceeding that a contravention has occurred, is so likely to be inimical to the effectiveness of the investigation and to interests of those who are the subjects of investigation, both witnesses and those suspected of contravention, that the requirement of privacy may be seen to have been intended by the legislature, notwithstanding that the requirement is not explicitly stated in the Act: cf Hearts of Oak Assurance Co Ltd v Attorney-General (supra) at 401. Whatever may be the position of the person who is examined on oath or affirmation, there is authority for the conclusion that his legal representative, present during a private investigative examination, may lawfully be required by the investigator to undertake not for a certain time to disclose to others what has been disclosed to the legal representative during the examination. Re London and Northern Bank Ltd [1902] 2 Ch D 73 was a case in which a solicitor was held by the Court of Appeal to have been rightly required, as a condition of his being permitted to represent a witness under private investigative examination by the liquidator in a winding-up, to undertake to the Registrar conducting the examination not to disclose to others information required at the examination. The solicitor was employed by a firm which was acting for a company then engaged in litigation with the company in liquidation and that circumstance was noticed by the members of the Court as justifying the Registrar's requirement.' The question is one of the intention of Parliament and that intention is to be discerned from the provisions of the Act: Hearts of Oak Assurance Co Ltd v Attorney-General [1932] AC 392. In my opinion, an examination under s 52 is to be conducted in private. Privacy or confidentiality is necessary to ensure the effectiveness of an examination and of an investigation which may lead to the ABC Commissioner instituting proceedings for a contravention of the Act and the recovery of a civil penalty. As I have said, the obligation on (among others) an ABC Commissioner or a Deputy ABC Commissioner to preserve the confidentiality of information obtained under the Act is a strict one and subject to criminal penalties for breach and it is subject to clearly defined exceptions in s 65(3) of the Act. The second question is whether the ABC Commissioner has the power to make a non-disclosure direction. Again, I did not understand the applicant to suggest that the ABC Commissioner did not have the power to make a non-disclosure direction. In my opinion, the ABC Commissioner has such a power.


case_text: was no suggestion that Ms Boots would knowingly disclose confidential information to the applicant. Nevertheless, the respondent considered that to permit the same legal representative to appear for the applicant will or may prejudice the investigation. The essence of the respondent's reasons is set out above (at [26]). I have read the written notice issued to B and the record of his examination and I am satisfied that there is a proper basis for the respondent's conclusion that the applicant's examination will be 'virtually identical' to the subject matter of the examination of B. This is not a case like that which was before Mansfield J in Hogan v Australian Crime Commission (2005) 154 A Crim R 336 where the evidence did not disclose the nature of the previous examination. Mansfield J said (at 347): 'But the risk of such disclosure does not arise by assertion. It must arise on material known to the examiner. Here, I have found the examiner had no relevant knowledge, other than the counsel having previously appeared at an examination by another examiner of another person in the same special investigation. The nature of the former examinee or of the evidence that person gave or of the questions that person was asked was not known.' In this case once one concludes that the risk of inadvertent disclosure is a sufficient basis for a direction (as it is on the authorities) the conclusion that there was a proper basis for a direction preventing Ms Boots from acting or appearing for the applicant at his examination is inevitable. The respondent had the power to make a direction that Ms Boots not act or appear for the applicant at the examination and there was a proper basis for the exercise of the discretion to make such a direction. However, the direction actually made by the respondent went further than this, and, to the extent that it did, it is beyond power. In view of those conclusions I will hear the parties as to the appropriate orders and on the question of costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 12 October 2006 Counsel for the Applicant: M Gibian Solicitor for the Applicant: Gibson & Gibson Counsel for the Respondent: T Southall QC, with T Jacobs Solicitor for the Respondent: Australian Government Solicitor (Victoria) Date of Hearing: 19 June 2006 Date of Judgment: 12 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1334.html


case_title: Medical Board of SA v N, JRP (2006) 93 SASR 546


case_text: National Companies and Securities Commission v Bankers Trust Australian Ltd (1989) 24 FCR 217 (' Bankers Trust ') a person who appeared before the National Companies and Securities Commission during the course of an investigation was required not to discuss the evidence given with any person other than his legal counsel. A similar direction was given to his legal counsel. Those directions were challenged on the basis (inter alia) that there was no power to make them. The Full Court of this Court held that there was power to make a non-disclosure direction, but a majority held that the particular order was beyond power because it went beyond the period in respect of which the Commission's implied power to prohibit disclosure could reasonably operate. Only the general question of power is relevant here. There were express statutory provisions to the effect that the Commission could direct that the hearing take place in private and give directions as to the persons who may be present at a private hearing. Lockhart J noted those provisions and said that the power to maintain the privacy of the evidence was a necessary element in the private hearing itself. His Honour said (at 221): 'It may appear odd that a like power was not vested in terms in the Commission when hearings commence as private hearings. In my opinion the answer is not that there is a lacuna in the legislation, but that the power of the Commission to conduct a hearing in private pursuant to s 36 and the express power conferred by s 36(5) to determine who should be present carries with it as an integral element of such a hearing the power to give directions preventing or restricting the publication of evidence given before it or of matters contained in documents lodged with it; otherwise the power to hold hearings in private would be of little value. The essence of a private hearing before the Commission is that what takes place is in private and, therefore, by definition and of necessity not open or accessible to the public.' In this case the requirement that an examination be held in private arises by implication rather than by reason of an express provision. I do not think that that is a ground upon which to distinguish what the Full Court said in Bankers Trust and I agree with what Jenkinson J said in Constantine (at 148): 'Whether the legislative requirement of examination in private be expressly given or laboriously found, the necessary implications must in my opinion be the same.'