case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152

case_text: Minister argued that the tribunal's questioning and statements about the appellant's apparent lack of effort was a sufficient indication to him that his lack of exploration of his being able to go to the Philippines or Ms L's and their daughter's being able to come back to Australia was an issue for the purposes of s 425(1) of the Act. In SZBEL (2006) 228 CLR 512 at 165-166 [47] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that the tribunal's statements or questions during the hearing could sufficiently indicate to an applicant for review that everything he or she said in support of the application was in issue. Such an indication could be given in many ways and no particular formula of words was required. However, the questions put to the applicant for review must, taken as a whole, put him or her on notice of the tribunal's concerns. Their Honours said that if there were specific aspects of an applicant's account that the tribunal considered may be important to the decision and open to doubt, it must at least ask the applicant for review to expand upon those aspects of the account and ask him or her to explain why the account should be accepted: SZBEL 228 CLR at 166. In my opinion, the appellant's argument fails. His Honour was correct to hold that the tribunal had not failed to comply with s 425 of the Act and that this ground should be dismissed. The tribunal sufficiently raised its concerns about the appellant's apparent lack of effort to explore other means of being with Ms L and their daughter. It questioned the appellant directly about his exploration of the possibility of him living in the Philippines. The tribunal made the comment that he had not made much apparent effort to be with his family. And it referred to the fact that he had not seen Ms L for about nine years, was not aware of any enquires that she had made about her coming to Australia and had made no enquiries about his going to the Philippines. The tribunal told him: " It seems to me that you don't really have the intention of living together , given that you have been living apart for 8 years, even though you talk to each other and send photographs to each other and you support her financially. But how can I be satisfied given that if you do have to return to Bangladesh that she will come with you ." (emphasis added) Given the real possibility that if the appellant's claim for a protection visa were rejected, he would have to return either to Bangladesh or travel to the Philippines, his lack of any enquiries over a lengthy period to make arrangements to be with the persons he claimed he loved so much that they would live together as a family, was a matter which the tribunal had fairly raised during the course of the hearing. Moreover, I am of opinion that there was no reason to consider that the tribunal's exploration of this issue was not a legitimate approach open to the tribunal to assess the appellant's claim. The appellant argued that Ms L's evidence to the tribunal of the steps she had taken to come to Australia and the reason she gave it for not telling him about those steps was "information" that formed part of the reason for its rejection of the appellant's claim within the meaning of s 424A(1). He argued that the tribunal took into account his apparent unfamiliarity with the steps undertaken by Ms L to seek residence in Australia in forming the view that their relationship was not of the close kind that he asserted. In that context, he contended that the tribunal committed a jurisdictional error in failing to comply with s 424A in respect of this information.


case_outcome: discussed

case_text: Minister supported the trial judge's finding that the information conveyed by Ms L at the hearing was not part of the reason for the tribunal's decision because it did not undermine the appellant's claim to be a refugee. His Honour made that finding, relying on what was said by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615 [17]. In addition, his Honour held that Ms L's evidence was called at the request of the appellant, and was thus to be taken to have been given by him for the purposes of his application for review within the meaning of the exception in s 424A(3)(b). In SZBYR 235 ALR at 615 [17], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the reason or part of the reason for affirming the decision under review was that the appellant was not a person to whom Australia owed protection obligations under the Convention. In that case, a statutory declaration that did not in terms contain a rejection, denial or undermining of the appellant's claims to refugee status was held not to attract the operation of s 424A(1)(a). Tamberlin, Finn and Besanko JJ applied that reasoning in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 ; (2008) 100 ALD 1 at 7-8 [26] . In that case the Court held that information in an appellant's passport was neutral, and that what undermined his claims was not conveyed by the passport, but by country information. There, the tribunal had used the country information in assessing whether the appellant was of adverse interest to the authorities because he had obtained his passport and was able to leave his country of origin with it. Their Honours, applying SZBYR 235 ALR at 616 [18], said that the relevant "information" within the meaning of s 424A(1) was not to be found in disbeliefs arising from a process of reasoning applied to the evidence. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] , Allsop J said: "Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: the Complete Oxford English Dictionary (2 nd ed, 1991)." And, in SZBYR 235 ALR at 616 [18], the plurality said: "However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation , not the existence of doubts, inconsistencies, or the absence of evidence." (emphasis added) The next question is whether the jurisdictional error I have found entitles the appellant to relief. A grant of constitutional writ relief is discretionary and may be refused if no useful result could ensue from quashing the tribunal's decision and ordering it to perform its duty according to law: SZBYR 235 ALR at 618 [28]-[29]. I am of opinion that the tribunal should have drawn the appellant's attention to the significance it proposed to give to the failure of Ms L to discuss with him the efforts she had made to explore obtaining a visa. The tribunal was conscious of the evidence she had given, including her statement that he may have become too excited had she told him what she was undertaking and then depressed if she failed, as a result of which she decided not to tell him. However, Ms L also gave other accounts of why she did not tell him, which the tribunal had noted in its statement of the evidence. For example, it recorded that Ms L had told it that she had not told the appellant because she did not think it was necessary as she could not get it [the visa] anyway. The question here is whether, had the tribunal written a letter under s 424A(1) or given oral particulars under s 424AA and identified the reason why what Ms L's evidence had conveyed could have caused the tribunal to decide as it did, that would have made any difference to the result.


case_outcome: approved

case_text: VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] Gray J said: "The evidence of the three witnesses was information that the applicant gave for the purpose of the application." His Honour did not refer to the terms of s 426 when arriving at that conclusion. That decision was followed by Gordon J in SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [39] . She also referred to Bennett J's decision in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [23] - [24] . There, Bennett J again referred to the concept of an applicant calling a witness to give oral evidence on his or her behalf as being within the scope of s 424A(3)(b). Bennett J distinguished the contrary construction by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [17] - [22] . In SZECG [2006] FCA 733 at [21] Branson J followed the obiter reasons of Lee and Tamberlin JJ in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [96] - [99] per Lee J, with whose reasons Tamberlin J agreed at [108]. They held that s 424A was engaged where the tribunal relied on alleged inconsistencies between evidence of the applicant's husband and that of the applicant. Branson J doubted that it could be said that the appellant "gave" the information implicit in his father's evidence. She said that the hearing before the tribunal was not an inter parties judicial hearing but formed part of an administrative enquiry. Her Honour observed that the appellant there did not call his father to give evidence but rather advised the tribunal that he wanted it to take evidence from his father". Branson J did not reach a concluded view on the question although she doubted that s 424A(3)(b) disclosed an intention that every piece of information that the tribunal gleaned from the evidence of the witness called at the request of an applicant for review was to be treated as evidence given to the tribunal by that applicant for the purpose of the application: SZECG [2006] FCA 733 at [22] - [23] . None of these authorities construed s 426 or dealt with the fact that an applicant could not "call a witness". I am of the firm opinion that on the proper construction of the Act, information given orally by a witness, other than the applicant for review, cannot be "information" that the applicant gave for the purpose of the application for review within the meaning of the exception of s 424A(3)(b).


case_outcome: cited

case_text: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] , Allsop J said: "Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: the Complete Oxford English Dictionary (2 nd ed, 1991)." And, in SZBYR 235 ALR at 616 [18], the plurality said: "However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation , not the existence of doubts, inconsistencies, or the absence of evidence." (emphasis added)


case_outcome: followed

case_text: Finn and Besanko JJ applied that reasoning in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 ; (2008) 100 ALD 1 at 7-8 [26] . In that case the Court held that information in an appellant's passport was neutral, and that what undermined his claims was not conveyed by the passport, but by country information. There, the tribunal had used the country information in assessing whether the appellant was of adverse interest to the authorities because he had obtained his passport and was able to leave his country of origin with it. Their Honours, applying SZBYR 235 ALR at 616 [18], said that the relevant "information" within the meaning of s 424A(1) was not to be found in disbeliefs arising from a process of reasoning applied to the evidence.


case_title: Leary v Leary [1987] 1 WLR 72

case_text: 62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046.


case_text: 62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046. The Wrigley deponents' claims and contentions are advanced in support of the view that there should be a taxation of Cadbury's costs. I must, however, bear in mind that of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs: Harrison at [22]. Rather a broader brush must be applied than would be appropriate on taxation. The present relevance of the Wrigley claims and contentions is that their existence, unresolved, has brought me to the clear view that I should not exercise the power to order a lump sum under Order 62 rule 4(c) because I am not satisfied that I can do so fairly between the parties, and with sufficient confidence that I would be arriving at an appropriate sum on a logical and reasonable basis, rather than selecting figures at random on the basis of an arbitrary preference for one expert's view over another's. See Sony Entertainment at [199].


case_outcome: applied

case_text: 62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046. The affidavits filed on behalf of Wrigley are directed to matters relevant to that passage from Harrison . They are those of Ian Stanley Pascarl, a partner of Wrigley's solicitors, and John Andrew Balmer, a JB Legal Costing Pty Ltd costs consultant retained by Wrigley. Mr Pascarl instances aspects of the Mahlab assessment of profit costs and disbursements that he considers excessive and unreasonable. He deposes: a detailed bill of costs and disbursements is drawn and served, Wrigley will not be in an informed position to properly and fairly challenge those items. The [Borham affidavit] does not provide any detailed breakdown of each item, and the cost charged for each item, by patent attorney Griffith Hack which charged a total of $220,000 to Cadbury (of which $170,000 is now claimed against Wrigley). Wrigley is entitled to be provided with that information and to vigorously test the need for, and reasonableness of, those charges." Mr Balmer challenges aspects of Ms Young's affidavit. I take just three out of some fifteen of those aspects: he challenges Ms Young's allowance for scientific research and time spent collating documents and a loading for care, skill and attention included in her cost assessment, and says Wrigley is unable to review these allowances without the benefit of a detailed bill, and should not be denied the right to taxation in order to establish and analyse the amounts hidden in the assessment; he says Wrigley needs to be able to question the terms of Cadbury's retainer of Griffith Hack and the nature of the patent attorney support provided, and to rigorously question whether work done and fees charged represent necessary party/party costs; and he claims there is no basis upon which to assume that taxed professional costs may differ by 10% to 15% from the costs calculated in Mahlab's assessment, and says it is for that reason that Cadbury requires a detailed bill in order to decide whether a taxation of Cadbury's costs should be pursued. Mr Balmer also takes issue with an aspect of Ms Borham's affidavit dealing with the retainer of Griffith Hack. The Wrigley deponents' claims and contentions are advanced in support of the view that there should be a taxation of Cadbury's costs. I must, however, bear in mind that of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs: Harrison at [22]. Rather a broader brush must be applied than would be appropriate on taxation. The present relevance of the Wrigley claims and contentions is that their existence, unresolved, has brought me to the clear view that I should not exercise the power to order a lump sum under Order 62 rule 4(c) because I am not satisfied that I can do so fairly between the parties, and with sufficient confidence that I would be arriving at an appropriate sum on a logical and reasonable basis, rather than selecting figures at random on the basis of an arbitrary preference for one expert's view over another's. See Sony Entertainment at [199]. In all but one of the cases collected in the appendix to Cadbury's written submissions the judge who fixed a lump sum was the trial judge who, having heard the evidence and watched the proceeding unfold, was in a much better position than I am to reach informed conclusions about the costs issues that are now in dispute. In the Harrison case, Giles JA, as a member of the Court of Appeal, had sat on an appeal in the matter, and on one later proceeding that had been removed to the Court of Appeal in which the costs order made on the appeal was challenged. His Honour was deputed by the Court of Appeal to hear a lump sum application that followed upon that Court's costs order. Thus his Honour had a similar advantage to that enjoyed by the trial judge in the other cases referred to in the appendix. Cadbury submitted that the following considerations pointed in favour of the award of a lump sum: the delay and expense involved in a taxation; Cadbury's assessments were prepared by an experienced costs consultant; those assessments have been reduced by Ms Young as appears in her affidavit; Ms Young's methodology has not been criticised; and if the matter were to proceed to taxation, the costs of Ms Young's assessments would be thrown away. I accept the first three considerations, but think the remaining two are overstated. In any event, I have taken all those matters into account in exercising my discretion. They have not persuaded me to depart from the view I have expressed at [9]. The appropriate course in this case is for there to be a taxation. Accordingly, in the exercise of my discretion, I decline to specify a lump sum pursuant to order 62 rule 4(c). The motion is dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 4 September 2006 Counsel for the Applicant: A J Ryan Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: G Fitzgerald Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 30 August 2006 Date of Judgment: 4 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1186.html


case_title: Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046


case_text: It is important for those who apply to the Federal Magistrates Court seeking review of decisions of the Refugee Review Tribunal, and who subsequently seek to appeal to this Court, to understand that it is the Tribunal that resolves questions of fact. It is no part of the role of a court conducting judicial review to trespass into the realm of reviewing the merits of an administrative decision the subject of review: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The confined jurisdiction entrusted to the Federal Magistrates Court is unequivocally set forth in s 476 of the Migration Act 1958 (Cth). 10 The Appellant's grievance, however, need not be resolved upon that basis. It may be more directly answered by reference to the findings of the Tribunal. A reading of those reasons for decision denies any conclusion that it did not assess the claims advanced and the evidence relied upon. 11 The Tribunal held a hearing on 28 June 2007 and the now Appellant appeared. The Tribunal's reasons set forth the evidence relied upon by the now Appellant, the questions asked of him at the hearing and his responses. Those reasons also record that an opportunity was sought to provide the Tribunal with further documents and that that opportunity was extended. Those reasons also record that no further documents were in fact provided.


case_text: The problems faced by unrepresented litigants have of course long been recognised: eg, Managing Justice: A Review of the Federal Civil Justice Scheme (Australian Law Reform Commission, Report No 89, 2000) at [5.147] [5.157]. Indeed, regrettably, it would appear that little may have changed in a period extending over a decade since the inception of that inquiry. In Muaby v Minister for Immigration & Multicultural Affairs (Unreported, Federal Court of Australia, Wilcox J, 20 August 1998), Wilcox J observed: The number of applications filed in the New South Wales District Registry for judicial review of decisions of the Refugee Review Tribunal is running this year at a rate more than twice that of last year. It is the experience of my colleagues, as well as myself, that a large proportion of these matters are commenced by a stereotyped form of application that is uninformative and bears little relationship to what the applicant says at the hearing. It seems the filing of an application for review has become an almost routine reaction to the receipt of an adverse decision from the Tribunal. The solution is not to deny a right of judicial review. Experience shows a small proportion of cases have merit, in the sense the Court is satisfied the Tribunal fell into an error of law or failed to observe proper procedures or the like. In my view, the better course is to establish a system whereby people whose applications are refused have assured access to proper interpretation services and independent legal advice. If that were done, the number of applications for judicial review would substantially decrease. Those that proceeded would be better focussed and the grounds of review more helpfully stated. If applicants cannot afford legal advice, as is ordinarily the case, it ought to be provided out of public funds. The cost of doing this would be considerably less than the costs incurred by the Minister under the present system, in instructing a solicitor (and usually briefing counsel) to resist all applications, a substantial number of which have no merit and are ill-prepared. That is to say nothing about the desirability of relieving the Court from the burden of finding hearing dates for cases that should not be in the list at all. The difficulty, it is respectfully considered, is not to be answered merely by the provision of greater access to legal advice. Challenges to decisions of the Refugee Review Tribunal may not be motivated in all cases by a careful consideration of the relevant legal principles and an assessment of the prospects of success. Those challenges, it is suspected, may in some cases be driven more by a determination to remain in Australia for as long as possible, whatever may be the ultimate prospects of success in the courts. And even more disturbing is the potential that some challenges may be pursued by unrepresented litigants who have been given ill-considered advice as to their prospects. 42 The problems posed by unrepresented litigants are not theirs alone. The unrepresented litigant also presents this Court with peculiar problems, and those problems are not helped by repeated applications being brought with grounds of review or appeal which have little, if any, correlation with the facts of a particular case. 43 An Affidavit filed in the proceedings sought a fixed costs order in the sum of $2,400, in the event that the appeal was dismissed. The estimate as to costs did not include such additional costs as would necessarily be incurred by reason of the Court seeking the further assistance of Counsel for the Minister on a number of issues raised during the course of the hearing. Such additional costs were estimated in oral evidence to be a further $750, 75% of which was sought to be added to the fixed costs order otherwise sought -- namely, a further sum of approximately $560.


case_text: That submission was that the second and third grounds were but " pro forma " grounds of appeal. Counsel for the Minister referred the Court to the fact that these two grounds had a disturbing correspondence with those grounds advanced in SZLAH v Minister for Immigration & Citizenship [2007] FCA 1807 and SZINJ v Minister for Immigration & Citizenship [2007] FCA 1742. In the former decision North J, in his Honour's reasons refusing an application for leave to appeal, recorded: [6] On 3 September 2007, the applicant filed an application for leave to appeal and attached a draft notice of appeal to the application. The grounds of appeal there stated were as follows: ... 2. That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not give any consideration, instead the appearance of the applicant was made the issue before the RRT, which in accordance with the law is not required. The appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the handbook of the UNHCR. The real meanings were not taken into the consideration by the RRT & by the learned Court below. In the latter decision, Collier J dismissed an appeal and similarly recorded the grounds before her Honour as follows: [12] The appellant raised the following grounds of appeal: ... 2. That the Appellants submitted the bundle of evidence before the RRT, the RRT did not gave (sic) any consideration, instead the appearance of the (sic) was said to not (sic) plausible, as such the evidence was not taken in to consideration, the appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case.


case_text: On 16 August 2007 the Tribunal affirmed the decision not to grant the visa. That decision of the Tribunal was affirmed by the Federal Magistrates Court on 18 January 2008: SZLHM v Minister for Immigration & Citizenship [2008] FMCA 62. 4 The Appellant now appeals to this Court. He appeared at the hearing of the appeal unrepresented but with the assistance of an interpreter. He had previously filed written submissions, as had the Respondent Minister. At the request of the Court, further submissions were also filed on behalf of the Respondent Minister on 19 May 2008. All submissions have now been considered. 5 The Grounds of Appeal are set forth in the Notice of Appeal (without alteration) as follows: GROUNDS OF APPEAL: (Specify grounds of appeal) 1. That the Learned Federal Magistrate simply dismissed the application by not assessing the applicants claim which are purely based on the Refugee Convention of the religion . The applicant produced the bundle of the evidence , which was not considered by the learned Federal Magistrate. The learned Federal Court committed the legal errors coupled with the jurisdictional errors by not taking the evidence in to account . 2. That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not gave any consideration, the RRT even did admitted the facts and verified the circumstances of the applicant from different sources . The appellant made out a case which really requires the judicial inference of this honorable Court to meet the ends of justice . 3. That the Respondents have failed to assess the claims and the evidence so forwarded by the appellant as per the refugee laws as laid down by the hand book of the UNHCR . The real meanings were not taken in to the consideration by the RRT & by the learned Court below.


case_title: SZINJ v Minister for Immigration & Citizenship [2007] FCA 1742


case_outcome: considered

case_text: If there were to be a more focussed source of advice being proffered to unrepresented litigants, being advice which is merely " pro forma " in nature and divorced from the merits of an individual case, it may be appropriate for costs to be ordered against those providing such advice rather than the unrepresented appellant: SZJJC v Minister for Immigration & Citizenship [2008] FCA 614. Even more fundamental issues may emerge if advice were being provided contrary to legal practitioners' legislation. 40 Reference was also helpfully made by Counsel for the Respondent to ss 486E 486K of the Migration Act 1958 (Cth). Section 486E provides in part that " a person must not encourage another person ... to commence or continue migration litigation in a court if the migration litigation has no reasonable prospects of success ". And s 486F provides an additional and more specific power to order costs against a person who contravenes s 486E. At some stage, and in an appropriate case, consideration may have to be given to invoking that power.


case_outcome: referred to

case_text: The Capital companies contend that the payments in this case did not give rise to a preference because there was never any debtor-creditor relationship between LSE and Capital Finance. It is submitted that that when the dealings between the Capital companies, LSE and the NAB are considered as a whole, there was no debtor-creditor relationship between LSE and Capital Finance at the time of the payments. The Capital companies say that the payments represented a "sale" transaction between NAB and Capital Finance, where NAB agreed to buy out and pay for the equipment and rights which were the property of the Capital companies. It is then submitted that because the true characterisation of the transaction was a "sale," a failure to comply with an obligation to acquire goods or property at a specified price can only give rise to an action for damages: see McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457 at 475; Box Valley Pty Limited v Kidd [2006] NSWCA 26. An action for damages is not a "debt": Jelin Pty Ltd v Johnson (1987) 5 ACLC 463 at 464; Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157 at 159. The Capital companies say that the payments in question were part of the purchase price and were made by NAB on its own account as purchaser of the leased equipment from Capital Finance.


case_title: Box Valley Pty Limited v Kidd [2006] NSWCA 26


case_title: Jelin Pty Ltd v Johnson (1987) 5 ACLC 463


case_title: Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157


case_text: The expression "transaction" is defined in s 9 of the Corporations Act 2001 (Cth) to include the disposition of property, payments made and obligations incurred. The case law indicates that the term "transaction" is a word of wide connotations. A transaction in its totality may include a series of events in a course of dealings initiated by a debtor intended to extinguish the debt: Re Emanuel (No. 14) Pty Ltd (in liq) ; Macks & Anor v Blacklaw & Shadforth Pty Ltd (1997) 147 ALR 281 at 288. The events can occur at different points of time and need not occur simultaneously. The Court must consider the transaction in its entirety so that it can determine the ultimate effect of the transaction.


case_text: In V.R. Dye & Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60 ; [1999] 3 VR 201, Ormiston J at [39] pointed out that to properly characterise a transaction, it is necessary to look at the totality of the business relationship between the parties in order to see whether there is a true preference in favour of a creditor by the insolvent company. The Court will look at what the parties are intending to effectuate and how that was effectuated in part or in whole by the transactions in question: see also Mann v Sangria Pty Ltd (2001) 38 ACSR 307.


case_title: Mann v Sangria Pty Ltd (2001) 38 ACSR 307


case_text: In order for there to be an unfair preference, the statutory language requires that a creditor must receive more from the company in respect of an unsecured debt than that creditor would receive from the company in relation to that debt if the transaction were set aside and the creditor made to prove for the debt in a winding up of the company. The "winding up" as referred to in the statute is the actual winding up, and not a hypothetical winding up or series of windings up as at the date of each payment: see Walsh v Natra Pty Limited [2000] VSCA 60 ; (2000) 1 VR 523. 41 In this case, the unsecured debt owed by LSE to Corporate Finance under the Second Deed was discharged in full as a result of the challenged payments, whereas unsecured debts to other creditors were not reduced. 42 The affidavit of Mr Tolcher of 23 August 2006 shows that Capital would have received substantially less if it had proved in the winding up of LSE as unsecured creditor. He states that the Capital companies will have received as a result of the transactions a net value of $3,751,861.40, whereas if they had proved in the winding up they would have received either $1.345 million or a lesser amount. It is not necessary, having regard to the language of the section, to direct attention to the effect on other creditors: see Walsh at [47] and Sheldrake v Paltoglou [2006] QCA 52 at [9] .


case_title: Sheldrake v Paltoglou [2006] QCA 52

case_text: The affidavit of Mr Tolcher of 23 August 2006 shows that Capital would have received substantially less if it had proved in the winding up of LSE as unsecured creditor. He states that the Capital companies will have received as a result of the transactions a net value of $3,751,861.40, whereas if they had proved in the winding up they would have received either $1.345 million or a lesser amount. It is not necessary, having regard to the language of the section, to direct attention to the effect on other creditors: see Walsh at [47] and Sheldrake v Paltoglou [2006] QCA 52 at [9] .


case_text: Mr Tolcher also relies on the fact that Ms Foreman, who was the addressee of Memoranda from Mr Vendrell, was not called to give evidence. Ms Foreman was a Capital Finance employee who was involved with LSE in relation to the transactions. In my view, the principles in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 and Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62 at [31]-[36] and [41]-[42] are applicable in the present circumstances to reinforce the available inference that officers of Capital Finance had reasonable grounds to suspect insolvency. Cook's Construction is of specific relevance because it considers the operation of s 588FG. Mr Tolcher also points out Mr Joseph, who was the solicitor for the Capital companies as at December 2000, was not called to give evidence in relation to this matter.


case_title: Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62


case_text: have been referred to the penalties imposed in numerous cases. However many were pursuant to the WR Act which provided for significantly lower maximum penalties. The penalties which I have imposed are generally consistent with those imposed by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. The conduct in that case was somewhat more serious than in this. However the penalties for individual breaches were reduced to reflect the overall extent of the misconduct. I will make declarations in terms of paras 48 and 49 of the applicant's submissions as follows: Upon the admissions which the respondents made in the amended defence filed on 7 July 2009 and agreed statement of facts filed on 29 July 2009, it is declared that: (a) On 23 June 2008, [the first respondent] contravened section 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by asking an employer to: (i) terminate its current workplace agreement; and (ii) enter into a new workplace agreement with the CFMEU; (iii) on the basis that if the employer did not do so, the employer would be: (A) banned from building sites across Australia; and (B) subjected to a workplace health and safety audit which would result in the employer spending a significant amount of money, at least $30,000, in that [the first respondent] intended to coerce the employer to terminate its existing workplace agreement and enter into a new workplace agreement with the CFMEU. (b) On 23 June 2008, the CFMEU contravened section 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by virtue of the conduct of its officer, Tim Nesbit, in asking an employer to: (i) terminate its current workplace agreement; and (ii) enter into a new workplace agreement with the CFMEU; (iii) on the basis that if the employer did not do so, the employer would be: (A) banned from building sites across Australia; and (B) subjected to a workplace health and safety audit which would result in the employer spending a significant amount of money, at least $30,000, in that [the first respondent] intended to coerce the employer to terminate its existing workplace agreement and enter into a new workplace agreement with the CFMEU. I order that the first respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $9,000. I further order that the third respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $40,000. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 23 December 2009 Counsel for the Applicant: Mr CJ Murdoch Solicitor for the Applicant: Deacons Counsel for the First and Third Respondents: Mr DR Kent Solicitor for the First and Third Respondents: Hall Payne Lawyers Date of Hearing: 18 September 2009 Date of Judgment: 23 December 2009 Annexure "A" AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1574.html


case_text: This appeal essentially turns on the issue of whether the appellant has been able to establish a jurisdictional error on the part of the Tribunal. Unless a jurisdictional error is established, section 474(1) of the Migration Act 1958 (Cth) ('the Act') provides that, in effect, the decision of the Tribunal is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in to question in any court. It is clear from the decisions of the High Court of Australia that the window for correction of errors in what the Tribunal did is narrow: see Abebe v Commonwealth Re Minister for Immigraiton [1999] HCA 14 ; (1999) 197 CLR 510 at p 534 [50] per Gleeson CJ and McHugh J; Re Minister for Immigraiton and Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at p 409 [7] per McHugh J.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004)140 FCR 572

case_text: The decisions of Full Courts of this Court referred to in his Honour's reasons, namely, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 , show that no jurisdictional error was committed by the Tribunal in failing to give particulars to the appellant of the information contained in the country information to which I have referred.


case_text: In Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at p 506 [76] Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that an administrative decision which involves jurisdictional error is regarded in law as no decision at all. Thus, if there has been jurisdictional error due to, for example, a failure to discharge imperative duties or to observe inviolable limitations or restraints, the decision in question cannot properly be described in the terms used in section 474(2) as a " decision made under this Act ". 10 I have given anxious consideration to the material in the appeal papers and the submissions of the appellant for the purpose of seeing whether I can detect any arguable case of a jurisdictional error. I have also asked counsel for the Minister, pursuant to his duty to the Court, whether there is any basis, in the material before the court, on which an argument that there was a jurisdictional error might be raised other than the matters which I will discuss next. There was not identified by counsel or myself any such error which might be argued to exist. The judge below considered carefully and in detail each basis which the appellant put to him, many of which he also put to me. 11 Before turning to those issues, I should turn to a submission made at the outset of the appeal today by the appellant who said that the learned trial judge was biased because, in effect, he had upheld the appeal or I think, to use the appellant's words, supported what the Tribunal had done. I am not sure whether the appellant intended to connote anything more than he believed that the result was wrong and that the trial judge should not have found, as he did, that the Tribunal's decision revealed no error amenable to correction.


case_title: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_text: The respondents to the adjournment further rely upon the observations of Gyles J in Deputy Commissioner of Taxation v K J Consulting Pty Ltd [2005] FCA 1827. The factors that Gyles J suggests are influential against adjourning an application for a winding-up order are these. Firstly, the fact that the company is not trading; secondly, the undoubted insolvency of the company; thirdly, the composition and attitude of the creditors; and fourthly the recognition that a liquidator has more ability to follow potential breaches of the law than administrators. All of these factors are said to be made out in the present case and suggest strongly that the application for the winding-up order ought not to be adjourned. 41 It seems to me that each of these matters must contextually be considered against the background of whether there is, on the present material, a real prospect of a better outcome under the Deed than in a winding-up or, if the measure of the dividend is similar, whether the dividend can be achieved more quickly under the Deed. Although it seems to me that the circumstances of the relationship between the three entities and the role of Mr Nunn in each of them gives rise to a basis for suggesting that as a practical reality, a circumstance of insolvency may well have arisen earlier than the administrators contend for, there is no doubt that Perry Holdings and Farallon provided loan monies and financial accommodation of substance and that in a winding-up those related party transactions would rank for distribution. If an assumption is made that the full amount of the unrelated, unsecured creditor claims ($1.4M) might be recovered from Mr Nunn or from Perry Holdings or Farallon under s 588V (and assuming no set-off operates), the dividend will be 15.5 cents. Since the dividend under the deed is likely to be 17.9 cents without contest or the need to establish causes of action, the assessment by the administrators is more than 'a mere speculative possibility of a higher return'. 42 The opponents of the adjournment also say that the proposal to establish a deed fund of $300,000.00 should be viewed with scepticism because there is no obvious commercial purpose for establishing the fund and an inference should be drawn that the fund is proposed for the purpose of foreclosing any analysis or scrutiny of the conduct of Mr Nunn, Perry Holdings and Farallon.


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act , which provides as follows: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made ... if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 6 There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal.


case_text: plaintiffs submit that the orders sought in this case correspond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator's justification for entering into the settlement was made under s 479(3) of the Act. The plaintiffs submit that s 479 and s 511 perform similar functions citing Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. However, as Young J pointed out this is not "completely true".


case_text: Court may approve a compromise if one of a number of ways of presenting a claim involves a "debt" claim: Elderslie Finance Corporation Ltd v Newpage (No 6) [2007] FCA 1030 ; (2007) 160 FCR 423 at [40] - [41] . In the present case, one way in which EBD has framed its claim is that payments made by it to EBM upon false invoices were made pursuant to sham transactions, and of no legal effect and that consequently, there is no basis upon which EBM may retain the money paid by EBD. This is a claim for restitution of an amount wrongly paid which is capable of constituting a "debt". Discretion


case_title: QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687


case_title: Re HIH Insurance [2004] NSWSC 5


case_text: Settlement Deed made the direction sought in the present application a condition of the Settlement Deed taking effect is a matter which militates in favour of the Court exercising its discretion to make the orders sought: Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at [42] . The fact that the major creditors of EBD have had the opportunity to consider the proposed settlement, and do not oppose it, is also important. So too is the fact that EBD's liquidators have a limited opportunity to choose between the prospect of pursuing a novel application and the certainty of a settlement. For all these reasons the compromise constituted by the Settlement Deed should be approved pursuant to s 477(2A) of the Act. There should also be a direction that the liquidators of EBD are justified in entering into the Settlement Deed. The order and direction are intended to meet the conditions precedent under clause 2 of the Settlement Deed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 27 October 2009 Counsel for the Plaintiff: Mr J A Thomson Solicitor for the Plaintiff: Mallesons Stephen Jaques Counsel for the Defendant: Ms W Gillan Solicitor for the Defendant: DLA Phillips Fox Date of Hearing: 15 October 2009 Date of Judgment: 27 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1212.html


case_text: The usual obligations, for which Harman v Home Department State Secretary [1983] 1 AC 280 is the leading authority, restrict the use to which a party that receives documents by way of discovery may put them. They are to be used only for the purpose of the litigation. There is no reason why any further restriction should be placed on use of them by the plaintiff. The plaintiff's conduct of the litigation should not be restricted by confining access to the discovered documents in the way suggested by masking parts said to be irrelevant. The plaintiff, as administrator, should be entitled to inspect the documents, along with his legal advisers and experts. 7 It has been necessary for the plaintiff to bring this proceeding and the plaintiff should get the costs of the motion, such costs to be taxed and paid forthwith. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 28 November 2006 Counsel for the Plaintiff: T DiLallo Solicitor for the Plaintiff Russell Kennedy Counsel for the Defendants: P G Lovell Solicitor for the Defendants: Mason Sier Turnball Date of Hearing: 16 November 2006 Date of Judgment: 16 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1637.html


case_text: On 17 September 2001, the appellant joined the Muin and Lie proceedings in the High Court: see: see Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601. Ultimately, his application was remitted to the Federal Court and was refused on 30 April 2004: see S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872 per Emmett J. As the first respondent has not sought to rely on those proceedings as the basis of any estoppel argument, it is unnecessary to discuss them further.


case_title: S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872


case_text: It is plain from a reading of the Tribunal's reasons that it placed no reliance on the date when he started his bus driving business. The Tribunal relied on the fact that the incident that gave rise to the appellant's protection visa application occurred in 1998, which the appellant does not dispute. It was open to the Tribunal, on the evidence before it, to make the findings it did concerning the appellant's eye condition and medical treatment. The appellant did not dispute that he had authorised the Tribunal to speak to his doctor and that he had been invited by the Tribunal to comment on the doctor's evidence. It is clear from the reasons of the Tribunal and the Federal Magistrate that the submissions he made to the Tribunal concerning the discrepancy in dates were the same submissions he made to the Federal Magistrate and to me. The Tribunal considered these submissions. The authorities establish that credit issues and findings of fact are generally matters for the Tribunal alone: see NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 at [2] ; appeal dismissed in [2002] FCAFC 250 ; also W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64] . The Tribunal is not obliged to explain its thought processes to an applicant before making a decision. There is no discernible error in his Honour's judgment below.


case_title: W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679


case_text: In CFMEU v Cole and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, Branson J considered the circumstances which might be taken into account when assessing a penalty under s 298U of the Act. She said at [8]: The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act). (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act. (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct. (d) The consequences of the conduct found to be in contravention of Pt XA of the Act. (e) The need, in the circumstances, for the protection of industrial freedom of association. (f) The need, in the circumstances, for deterrence.


case_text: In CPSU v Telstra Corporation (2001) 108 IR 228, Finkelstein J said at [8] that the objects of imposing a pecuniary penalty may include punishment, deterrence or rehabilitation, or a combination of all three. 16 I do not think in the case of a contravention of s 285E rehabilitation plays any real part. I think punishment plays some part in the purpose for the imposition of a penalty, but I think it plays a lesser part than aspects of deterrence. In my opinion, the principal reason for the imposition of a penalty in relation to a contravention of s 285E of the Act is deterrence. The purpose of the civil penalty is to deter persons, who have been given a right to enter premises by virtue of ss 285B and 285C, from intentionally hindering or obstructing any other employer or employee. In speaking of deterrence, I am speaking of both general and personal deterrence. The purpose of the penalty is to deter the particular person from further contraventions of the section and to deter other like minded persons who might otherwise commit a contravention of s 285E. 17 The Act also seeks to deter persons who hold a permit from contravening s 285E(1) by empowering the Registrar to revoke the contravenor's permit if the Registrar is satisfied that a contravention has occurred: s 285A(3). In considering the appropriate penalty I have taken into account that the finding of a contravention may put the respondent's permit at risk. It was contended by the respondent's counsel that if the respondent lost his permit the respondent may either lose or his job or be forced to take leave during the time when the respondent was without a permit. It was put that the permit was an essential aspect of his employment. However, the respondent's counsel was not able to say that either of those consequences would follow if the respondent were to lose his permit or have it suspended for any length of time. The risk of those events occurring ought to be taken into account but, in the circumstances of this case and in the absence of any evidence from the employer, I do not put great weight upon those risks.


case_text: In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ (with whom Carr J generally agreed) discussed the question of the Court's role on fixing the quantum of penalty in circumstances where the parties had indicated a range within which a civil penalty ought to be imposed. That decision has been more recently considered in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; [2004] ATPR 41 and the Court distilled the proposition which emerged from the reasoning in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285 at [51] : The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.


case_text: In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ (with whom Carr J generally agreed) discussed the question of the Court's role on fixing the quantum of penalty in circumstances where the parties had indicated a range within which a civil penalty ought to be imposed. That decision has been more recently considered in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; [2004] ATPR 41 and the Court distilled the proposition which emerged from the reasoning in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285 at [51] : The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. 12 After discussing a number of authorities at first instance, the Court concluded that there was nothing to warrant a departure from the principles which had been identified in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285. 13 It was appropriate, therefore, for the parties to agree upon a range and submit that range to this Court for its consideration.


case_title: Standen v Feehan [2008] FCA 1009

case_text: I do not intend to recite the facts which I have found and which are contained in my reasons in Standen v Feehan [2008] FCA 1009. Those facts speak for themselves. 19 In considering what ought to be the appropriate penalty, one must have regard to the seriousness of the contravention. The more serious the contravention, the higher the penalty. 20 For the reasons which I have given, I consider that the conduct was serious. The conduct was premeditated and was designed to hinder the contractor and the subcontractor in the carrying out of their work on the day in question. The conduct continued over a relatively long period. The conduct had the consequence that Mr Zito and his employees had to work late into the evening to complete their concreting.


case_text: The effect of this rule in my view is that a party must specifically obtain the leave of the Court to withdraw an admission to which O 22 r 4(2) applies. In this case no such specific leave has been obtained by the respondents. Mr Perran SC relies on the decision of Sackville J in Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 as authority that no leave ought be granted to withdraw admissions in this case. The primary complaint of the applicants in this context relates to paras 5 and 6 of the second further amended defence. 10 On a simple comparison of the two versions of paras 5 and 6, it appears clear that the respondent has, in amending its defence, withdrawn a number of admissions. The relevant paragraphs are as follows: Paragraphs 5 and 6 in the further amended defence filed by the respondent on 28 September 2007 5. With respect to paragraph 24 of the amended statement of claim the respondents: (a) admit that the first respondent and the first applicant agreed as to the amount of the Agreed 1998 Profit Shortfall Amount ( as defined in the amended statement of claim) ; (b) deny that the second respondent agreed to the Agreed 1998 Profit Shortfall Amount on the basis that the second respondent was not present during discussions about the Agreed 1998 Profit Shortfall Amount; (c) admit that the conversation particularised in paragraph 24(a) took place; (d) admit the existence of the letter particularised in paragraph 24(b) , but object thereto on the basis that the letter is not a material fact relevant to the alleged agreement . 6. With respect to paragraph 25 of the amended statement of claim the respondents: (a) admit the Agreed 1998 Profit Shortfall Amount appeared in the books of account of Forbes Australia as a prepayment of rent payable under the Lot 8 Lease; (b) deny that Agreed 1998 Profit Shortfall Amount represented a true entry in the books of account of Forbes Australia on the basis no shortfall existed despite the matters set out herein such that no amount was truly owing pursuant to the agreement referred to therein; (c) further and alternatively- (i) repeat the rely on the matters pleaded in paragraphs 4C and 4D herein; (ii) plead that, in the premises, no obligation arose under the Forbes Guarantee or under the Forbes 8 Lease Guarantee, as alleged or at all. Paragraphs 5 and 6 in the second further amended further amended defence filed 19 October 2007 5. With respect to paragraph 24 of the amended statement of claim the respondents: (a) deny that there was any agreement as to the 1998 profit shortfall "pursuant to the Forbes Guarantee and the Forbes Lot 8 Lease Guarantee", as those agreements did not provide for calculation of, or agreement to, any profit shortfall for the 1998 calendar year or otherwise; admit that the first respondent and the first applicant agreed as to the amount of the Agreed 1998 Profit Shortfall Amount (as defined in the amended statement of claim) ; (b) deny that the second respondent agreed to the Agreed 1998 Profit Shortfall Amount on the basis that the second respondent was not present during discussions about the Agreed 1998 Profit Shortfall Amount; (c) admit that the conversation particularised in paragraph 24(a) took place , but plead that any such agreement as alleged therein is to be set aside because- (i) the first applicant caused the amount of the sales of Forbes Australia in the 1998 calendar year to be reduced by approximately $418,000 by the issue of "credit notes", which ought to have been recorded as sales by Forbes Australia for the 1998 calendar year, or included by way adjustment to the profit result for the 1998 calendar year; (ii) the first applicant knew, or ought to have known, of the matters pleaded in subparagraph (i) above; (iii) by reason of the first respondent's agreement in the course of the conversation that the amount of the shortfall of the Profit Guarantee for the 1998 calendar year was $127,284.00, when in truth and in fact there was no shortfall of the Profit Guarantee for the 1998 calendar year, the first applicant knew, or ought to have known, that the first applicant was unaware of the matters pleaded in subparagraph (i) above; (iv) in the premises, it would be unconscionable to permit any agreement to create any liability in respect of the alleged, and non-existent, 1998 profit shortfall; (v) further and alternatively- (A) Forbes Australia failed, in contravention of s 286 of the Corporations Law and, subsequently, s 286 of the Corporations Act , properly and adequately to maintain its financial records for the 1998 calendar year; (B) accordingly, the respondents have been denied any proper opportunity to assess- (1) the validity and accuracy of any accounts of Forbes Australia for the 1998 calendar year; or (2) the full amount of the sales made by Forbes Australia for the 1998 calendar year; (C) the present proceeding is, accordingly, an abuse of process; (d) admit the existence of the letter particularised in paragraph 24(b), but object thereto on the basis that the letter is not a material fact relevant to the alleged agreement. 6. With respect to paragraph 25 of the amended statement of claim the respondents: (a) do not admit the Agreed 1998 Profit Shortfall Amount appeared in the books of account of Forbes Australia as a prepayment of rent payable under the Lot 8 Lease , because- (i) Forbes Australia failed, in contravention of s 286 of the Corporations Law and, subsequently, s 286 of the Corporations Act , properly and adequately to maintain its financial records for the 1999 calendar year; (ii) accordingly, the respondents have been denied any proper opportunity to assess whether or not the alleged entry was a proper entry in Forbes Australia's book of accounts; (b) deny , in any event, that Agreed 1998 Profit Shortfall Amount represented a true entry in the books of account of Forbes Australia on the basis no shortfall existed despite the matters set out herein such and that , accordingly, no amount was truly owing pursuant to the agreement referred to therein; (c) further and alternatively- (i) repeat and rely on the matters pleaded in paragraphs 4B, 4C, 4D, 4F and 5 herein; (ii) plead that, in the premises, no obligation arose under the Forbes Guarantee or under the Lot 8 Lease Guarantee, as alleged or at all. 11 The basis of the applicants' complaint is most obviously illustrated by a simple comparison between the two versions of these paragraphs in that, for example, whereas in the further amended defence filed 28 September 2007 in each of paras 5(a) and 6(a) the respondent "admits" the fact contained therein, in the second further amended defence filed 19 October 2007 in each of paras 5(a) and 6(a) the respondent "denies" (para 5(a)) or "does not admit" (para 6(a)) the relevant facts. Prima facie , this does appear to constitute a withdrawal of admissions.


case_outcome: related

case_text: I note that: • One of the reasons I ordered the hearing dates vacated was because I accepted the view taken by the new solicitor for the respondents that, in light of developments following the hearing of 26 September 2007, a second further amended defence would need to be filed and served ( Forbes Engineering (Asia) Pte Limited v Mark Forbes [2007] FCA 1598 at [19] ). • The orders of 18 October 2007, which accepted that leave to amend the respondents' further amended defence had been given pursuant to O 13 r 3, and directed that a second further amended defence be filed within a short time frame, were made in light of those reasons. • I accept the submission of the respondents, and it is not in dispute, that the legal representatives for the applicants had been in possession of a copy of the proposed second further amended defence since the morning of 18 October 2007, but no objection was made by the legal representatives when I made the relevant orders, including the order of which complaint is now made, on the afternoon of 18 October 2007. 7 However, notwithstanding the absence of objection by the legal representatives of the applicants on 18 October 2007 when directions were being given, it is now clear that they had not had a proper opportunity to consider the contents of the proposed second further amended defence. Further, I accept that Mr Jones for the applicants had anticipated that he would have an opportunity at a later date to deal with this proposal and any application for leave to file. 8 In addition to this, the possibility that the second further amended defence contains withdrawals of admissions made in earlier versions of this pleading raises a different issue. Whereas the general position with respect to amendment of pleadings is dealt with in O 13 r 3 and O 22 r 4 Federal Court Rules specifically deals with withdrawals of admissions. In this case the applicants particularly rely on O 22 r 4(2), which provides: Sub-rule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.


case_outcome: distinguished

case_text: for NSX submits that even if the directors did not, within the twenty one day period, call the general meeting, they completed the performance of the s 249D duty of calling a meeting when the notices of the meeting were sent to shareholders on 27 April 2009. Counsel relies on Re Ariadne Australia Ltd [1991] 2 Qd R 377 (Ariadne). I accept that following 17 April 2009 it remained within the power of the directors to convene a general meeting of NSX on 27 May 2009. This is because cl 10.2 of NSX's constitution provided: The Directors may convene a general meeting of the Company whenever they think fit and must convene a meeting when requested by Members in accordance with the Corporations Act . I do not understand NSX to contend that its directors did "convene" (as distinct from "call") the general meeting scheduled for 27 May 2009 any earlier than when the notices of general meeting were dispatched on 27 April 2009. (As noted earlier, NSX distinguishes between "call" and "convene", submitting that the directors "called" the meeting on 17 April 2009.) In any event, since I have rejected the supposed distinction between "call" and "convene", in my view the directors did not convene the meeting prior to 27 April 2009. Ariadne is distinguishable. In that case, decided on s 241 of the Companies (Queensland) Code , a shareholder, having requisitioned a meeting that the directors had failed to convene within the 21 day period, sought an injunction restraining them from convening the meeting following the expiry of that period. The application was dismissed. However, in that case the requisitionist had not exercised the default power to convene the meeting himself. Cooper J said (at 380) that he did not construe s 241 as prohibiting the directors "from discharging, albeit belatedly the duty cast upon them by s.241(1), and a duty which is ongoing in terms of Article 40 of the Articles of Association". Article 40 is not set out in the reported judgment. I assume that it gave the directors a general power to convene meetings as cl 10.2 of NSX's constitution does. It is doubtful that his Honour was saying that s 241(1) directly imposed an obligation on the directors that continued to operate after expiry of the 21 day period. It may be, however, that by reason of their general duties as directors they were obliged in the circumstances of that case to convene the meeting notwithstanding the expiry of that period. In the present case, once the defendants issued their own notice of meeting on 18 April 2009, the directors ceased to be under a duty of any kind themselves to convene a competing meeting, notwithstanding their undoubted power to do so under cl 10.2. It has not been suggested that there was any good reason for the directors to exercise their cl 10.2 power to call, or complete the calling of, a meeting by sending out the notice of meeting on 27 April 2009. After all, by Monday 20 April 2009 they knew that the defendants had themselves called a meeting to consider the resolutions identical to those which the directors were proposing to have considered at any meeting to be called by them. In the result, it is not shown that the Court should make any order having the effect of facilitating the holding of the meeting on 27 May 2009. The fourth defendant submitted that the directors have acted oppressively toward the members generally, and the defendants in particular, and that an order should be made under s 233(1)(c) of the Act to the effect that the meeting fixed for 27 May 2009 shall not proceed. So far as the evidence reveals, the directors acted in good faith, believing on legal advice that they had "called" a general meeting on 17 April 2009. I have no hesitation in rejecting the suggestion of oppression. There is no cross claim by the defendants and they have not suggested a form of order or a source of power (other than s 233(1)(c) referred to above) for the making of an order in relation to the meeting presently called by the directors for 27 May 2009. I will allow the parties an opportunity to consider these reasons and the question whether an order against the defendants is required. The application should be dismissed. [On 22 May 2009 when the order of dismissal was made, counsel for NSX sought an opportunity to make submissions on costs, and directions were made to that end. Subsequently by consent the Court ordered that the plaintiff pay the defendants' costs.] I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 1 June 2009 Counsel for the Plaintiff: Mr J K Kirk Solicitor for the Plaintiff: Blake Dawson The First Defendant appeared in person Solicitor for the Fourth Defendant: Mr B McNab of Aldgate Lawyers The Fifth Defendant appeared in person Date of Hearing: 19 May 2009 Date of Judgment: 22 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/584.html


case_text: passing, I note that in my view in determining for the purposes of ss 249D and 249E what "the directors" did, there is to be included anything that they did through the Company Secretary acting as their agent. Any suggestion that it is only what they did personally that is to be taken into account must be rejected. Accordingly, for present purposes, the directors notified the ASX on 17 April 2009 and the directors sent out the notices of meeting on 27 April 2009. It is not to the point that it can be said, for the different purpose of distinguishing between what the directors of a company and the company's secretary respectively did, that the directors "called" a meeting and the company secretary then sent out the notices of it: cf Vawdon v South Sydney Junior R.L. Club [1975-1976] CLC p40-248 at 28,499. The making of the distinction in such terms for that purpose does not, to my mind, indicate an underlying general assumption that notification does not form part of the calling of a meeting. Dictionaries The transitive verb "to call" in relation to a meeting, assembly or gathering is defined in The New Shorter Oxford English Dictionary as "[t]o convoke, summon", and in the online Oxford English Dictionary as "[t]o convoke, convene, summon (a meeting or assembly)." The transitive verb "to call" is defined in the Macquarie Dictionary , relevantly, as "to convoke or convene, as a meeting or assembly".


case_text: In order to establish practical unfairness, it must be shown that a person has been given an expectation by the Minister "as to a procedural step to be taken", which was not taken so that it may be said that a legitimate expectation held was disappointed (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [36] per Gleeson CJ). 18 Neither IFT or any of its members or, indeed, The Wilderness Society Inc., can show it or they were misled by the Minister. The subjective expectation held by opponents of the proposed action was generated by the RPDC process. While the Minister's predecessor agreed on assessment through the RPDC jointly with Tasmania, nothing the Minister did contributed to the demise of the RPDC. Further, the number and nature of the environmental matters relevant to the Minister's decision on approval are narrower than those dealt with by the RPDC. Even in that respect, the evidence of IFT is very general. There is no evidence of what precise material would have been put to the Minister had he decided on a longer period for "comment" than 20 business days. For example, Ms Christina Holmdahl referred to "detailed expert reports" on "flora and fauna and social and economic issues including but not only the impact on tourism". 19 The kind of material which IFT wished to put to the Minister, if there was more time, largely relates to matters which are relevant to Tasmania's assessment process, rather than the Minister's. The same can be said of the matters identified by Mr Paul Oosting at [59] of his affidavit dated 16 May 2007 in the TWS proceeding, with the exception of "marine impacts (including environmental impacts and particular species impacts)", "threatened species, as it relates to the site of the pulp mill", "social impacts" and "economic impacts". The limited nature of the matters which could be addressed with respect to the controlling provisions, combined with the limited nature of the evidence that could be put forward in respect of them, does not make it clear that the 20 business day time limit for comment amounts to a denial of procedural fairness in the circumstances. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 August 2007 Counsel for the Applicant: Dr K Hanscombe SC with Ms F Gordon Solicitors for the Applicant: Coadys Counsel for the First Respondent: Dr M Perry QC with Mr G Hill Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G Uren QC with Mr T Walker Solicitors for the Second Respondent: Freehills Dates of Hearing: 4-6, 9-10 July 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1179.html


case_text: In the TWS proceeding, I held that s 131AA(7) of the EPBC Act is a complete statement of the Minister's obligation to provide procedural fairness in relation to his decision to approve, for the purposes of a controlling provision, the taking of an action and any conditions attaching to approval. If that is not correct and the obligation is wider, it is one that must be considered in the context of the EPBC Act and in the context of the facts and circumstances before the Minister (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [26] ). 10 That the EPBC Act has provisions dealing with steps to be taken before a decision on approval is made suggests that the EPBC Act makes careful provision for when, and to what extent, comment from interested persons and/or the public is required. 11 Under s 74(3) of the EPBC Act, as soon as practicable after receiving a referral of a proposal to take an action, the Minister must cause to be published on the internet the referral and "an invitation for anyone to give the Minister comments within 10 business days" on whether the action is a controlled action. In making a controlled action decision under s 75, the Minister is required by s 75(1A) to consider the comments received in response to such an invitation, as long as they are received within the time specified. Under s 75(5), the Minister is obliged to make the controlled action decision within 20 business days after receiving the referral.


case_text: This proceeding was heard at the same time as The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 (TWS proceeding). These reasons for judgment are to be read together with the reasons for judgment published in the TWS proceeding. Terms defined in the reasons for judgment in the TWS proceeding have the same meaning in these reasons for judgment. 2 The grounds of review relied on in this proceeding overlap substantially with the grounds relied on in the TWS proceeding. There is a difference between the grounds in the applications dealing with the allegation that the Minister took into account Gunns' commercial imperatives in making the 2007 assessment approach decision. 3 Ground nine of the grounds of review in this proceeding states that the 2007 assessment approach decision is invalid or is not authorised by the EPBC Act because the Minister took into account an irrelevant consideration. Ground 10 in the TWS proceeding alleges that the 2007 assessment approach decision involved an improper exercise of power in that it was made for a purpose, or included a purpose, other than that for which the power was conferred. I rejected that submission in the TWS proceeding.


case_text: The Taxpayer submitted that if the incentive fees were, in fact, partial advances of Manager's Fees to become payable in the future, then, in determining whether they comprised income received in the 2001 year, the decision of the High Court in Arthur Murray (NSW) Pty Ltd v Federal Commissioner of Taxation [1965] HCA 58 ; (1965) 114 CLR 314 should be applied. The effect of that decision was said to be that amounts received in one year, to be earned in a subsequent year, should not be treated for tax purposes as income received in the year of receipt. They should rather be treated as being received in the year in which they are eventually earned. 43 Arthur Murray was a company which conducted ballroom dancing lessons. It sold courses of tuition, usually consisting of 5, 15 or 30 hours to be taken by appointment within a year, payment often being made in advance, either in a lump sum or by instalments, with a variable discount for immediate payment. There was no contractual right to a refund in the event that a course was not completed. In practice, refunds were sometimes given. In the company's books fees were credited, upon receipt, to an account-styled "Unearned Deposits Untaught Lessons Account". As lessons were taught, amounts were transferred from that account to an account-styled "Earned Tuition Account". The company prepared its income tax on the footing that fees received in advance of tuition formed no part of its assessable income at the moment of receipt, but became income as and when earned by the giving of the tuition. 44 At 318, the Court (Barwick CJ, Kitto and Taylor JJ) said: 'As Dixon J observed in Carden's Case ... : "Speaking generally, in the assessment of income the object is to discover what gains have during the period of account come home to the taxpayer in a realized or immediately realizable form" ... The word "gains" is not here used in the sense of the net profits of the business, for the topic under discussion is assessable income, that is to say gross income. But neither is it synonymous with "receipts". It refers to amounts which have not only been received but have "come home" to the taxpayer; and that must surely involve, if the word "income" is to convey the notion it expresses in the practical affairs of business life, not only that the amounts received are unaffected by legal restrictions, as by reason of a trust or charge in favour of the payer not only that they have been received beneficially but that the situation has been reached in which they may properly be counted as gains completely made, so that there is neither legal nor business unsoundness in regarding them without qualification as income derived. The ultimate enquiry in either kind of case, of course, must be whether that which has taken place, be it the earning or the receipt, is enough by itself to satisfy the general understanding among practical business people of what constitutes a derivation of income. A conclusion as to what that understanding is may be assisted by considering standard accountancy methods, for they have been evolved in the business community for the very purpose of reflecting received opinions as to the sound view to take of particular kinds of items.' 46 To my mind the facts in Arthur Murray differ from the present facts in substantial respects. Firstly, in that case, as far as can be seen from the report, all services to be provided in consideration of receipt of the relevant fees were to be provided subsequent to payment. In other words, there was no suggestion that any part of the remuneration had been earned in advance of such payment. In the present case it is clear that a significant part of the Taxpayer's function (for which it was to be remunerated) was performed in locating a potential lender and facilitating the loan transaction although, of course, some duties remained to be performed by way of management of the loan after it was made. Thus some part of the consideration for the Manager's Fee had been earned prior to payment of each incentive fee. There is no evidence which demonstrates any basis for apportioning the Manager's Fee as between such preliminary work and the subsequent management of each loan. Whilst in Arthur Murray , the upfront payment must have been for the tuition, it cannot be said that in the present case, the Manager's Fees were only payable in consideration of the Taxpayer's managing the loan after it was made. It is quite possible that the reduced amount of the Manager's Fee fairly represented the proportion of the total fee attributable to such management. 47 Secondly, in Arthur Murray , there was evidence of an accounting nature, suggesting that it was consistent with good business practice that amounts paid in advance of services to be provided not be credited to any revenue account until the services had been rendered. There is no such evidence in the present case, although there is evidence which suggests that both the Taxpayer and the Bank treated the relevant amounts as having been paid by way of commission, with no suggestion that they were by way of loan. In the business which the Taxpayer acquired in the 2005-2006 tax years, the incentive fees were treated in a different way, but no attempt has been made to demonstrate that such treatment was more appropriate, from a business point of view, than was that adopted by the Taxpayer in its return and accepted by the Commissioner. 48 The Taxpayer bears the ultimate onus of proof. It asserts that the incentive fees should be treated as unearned in the year in which they were received simply because some management duties remained to be performed over the first five years of each loan. However there is no evidence as to how the Manager's Fees should be apportioned amongst the duties which were to be performed by the Taxpayer. It might be argued that as subcl 7.1 of the Deed contemplated monthly payments of the Manager's Fee, this suggests that each monthly fee related to the work to be performed in that month. However that would be an unrealistic approach. Firstly, it would fail to recognize the fact that a substantial part of the overall work performed by the Taxpayer was in identifying the borrower and facilitating the loan. Part only was attributable to subsequent management. Secondly, such an approach would overlook the fact that however the Manager's Fee was characterized in the Deed, the parties conducted themselves upon the basis that there should be an advance payment of part of it. 49 The Taxpayer has not demonstrated that it had not, prior to payment of each incentive fee, earned that part of the Manager's Fee which it represented. The evidence is simply silent on that point. In those circumstances, accepting that the incentive fee was an advance of part of the Manager's Fees, the Taxpayer's appeal must fail.


case_text: In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222.


case_title: Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86


case_text: In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222. 32 However, the critical question is whether the knowledge of Mr Lindwall and Ms Schweikert should be imputed to other lawyers at BDW. In Red Earth at [34] Ryan J said: "It is now well established that the knowledge of a solicitor joining a new firm should not automatically be imputed or attributed to other lawyers or employees at that firm (see Re a Firm of Solicitors [1992] QB 959 at 973, per Staughton LJ; Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98, per Ipp J at 110-111; Newman v Phillips Fox (1999) 21 WAR 309, per Steytler J; Bolkiah (supra) at 235). As Lord Millett said in Bolkiah , whether a particular individual is in possession of confidential information is a question of fact to be proved or inferred from the circumstances of the case: ( Bolkiah at 235. See also the observation of Steytler J in Newman v Phillips Fox (supra) at 317). 33 Applying that principle, and assuming the onus is on BDW, I am satisfied that no relevant information was passed on to anyone at BDW. The detailed evidence both from Mr Lindwall and Ms Schweirkert and from solicitors at BDW, the veracity of which was not challenged, enables that conclusion to be safely drawn. The circumstances point the same way. A large and reputable firm like BDW would be aware of the obvious potential conflict when a solicitor previously acting on the other side of litigation has joined them. This would be clear, notwithstanding that Corrs had ceased acting for Arkaroola some six months earlier. So there was all the more reason to take positive steps, such as notifying the former client of Mr Lindwall and going out of their way to ensure that he had nothing to do with any matters relating to that client. 34 As events have turned out, Mr Lindwall and Ms Schweikert left BDW before the present Federal Court litigation commenced so the risk of even accidental communication of relevant information hereafter can be ignored.


case_title: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501


case_text: I will assume for present purposes that Mr Salfinger has made out a case with sufficient particularity that confidential information concerning his affairs and those of Arkaroola passed into the possession of Mr Lindwall and Ms Schweirkert when they were at Corrs. Such confidential information would extend to what Gillard J in Yunghanns v Elfic Ltd (Supreme Court of Victoria, unreported, 3 July 1998) has characterised as the "getting to know you" factors. His Honour said at 10-11: "In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the 'getting to know you' factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client." See also Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78 at [37]-[44].


case_title: Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222


case_title: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)


case_text: On 7 October 2005 Bennett J dismissed the application for leave to appeal: SZFIO v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1449. 9. An application for review of the delegate's decision was lodged in the Federal Magistrates Court by the applicant on 26 October 2005. That is the application which is the subject of the second order made by the Magistrate. 10. On 1 December 2005 the respondent issued the notice of motion to which I have previously referred to have that proceeding dismissed.