case_text: In the United Kingdom, the distinction between the 'value' of an asset and its 'state' or 'nature' was drawn in Aberdeen Construction Group Ltd v Commissioners of Inland Revenue (1978) 52 TC 281 which was concerned, in part, with para 4(1)(b) of Sch 6 to the Finance Act 1965 (UK). 57 Section 160ZH(3)(c), which was introduced into the Act later in time is in similar, but not identical, terms to this UK provision. The taxpayer did point out that the first limb of the UK provision requires that expenditure be incurred on the asset, but I do not regard that a difference determinative of the issue before me and the way I consider the s 160ZH(3)(c) should be interpreted. 58 Under paragraph 4(1)(b) of Sch 6 of the UK provision, one of the sums allowable as a deduction in the computation of the gain accruing to a person on the disposal of an asset was: (b) the amount of any expenditure wholly and exclusively incurred on the asset by him or on his behalf for the purpose of enhancing the value of the asset, being expenditure reflected in the state or nature of the asset at the time of the disposal ... 59 In construing paragraph 4(1)(b), UK courts have indicated that the state or nature of a share does not include its value. In Aberdeen Construction 52 TC 281, Lord President Emslie found that expenditure by the taxpayer in the form of loans to a company that were later waived was not the kind of expenditure to which paragraph 4(1)(b) was directed and the paragraph was therefore not applicable. However, the Lord President went on to state (at 290): In any event, by no reasonable stretch of the imagination is it possible to classify the making of the loans or their waiver as expenditure wholly and exclusively incurred "on" the shares and I find it impossible to say that either were reflected in the state or nature of the shares which were sold. The waiver of the loans may well have enhanced their value but what para 4(1)(b) is looking for is, as the result of relevant expenditure, an identifiable change for the better in the state or nature of the asset, and this must be a change distinct from the enhancement of value. 60 Lord Avonside said that the loan 'may have enhanced [the share's] value in so far as it might give [the company] working capital helpful to its trading. When the loan was waived the shares remained in their state and nature unchanged' (at 294). 61 This issue was not considered by the House of Lords when the matter went on appeal, although the appeal was successful. 63 The Commissioner before me relied upon above passages in the UK authorities, and particularly the last sentence in Fenston's case. On the other hand, the taxpayer submitted that the UK authorities have no precedential value, either because in the case of Aberdeen the actual decision relied on was overturned by the House of Lords, and in the case of Fenston , the comments relied upon were clearly dicta. The taxpayer also contended that the dicta relied upon by the Commissioner before me in the above passages was wrong. 66 The comments therein relied upon by the Commissioner do support the approach to the concepts of 'value', and 'state or nature' included within similar legislation which accord with my own view of the operation of s 160ZH(3)(c). It may not have been strictly correct to refer (as was done by the Lord President in Aberdeen ) to 'an identifiable change', or a 'change distinct from the enhancement of value'. The UK provision, like s 160ZH(3)(c) does not specifically talk in terms of 'change', only the need for the expenditure being reflected in the state or nature of the asset. However, the clear approach taken by the UK authorities is to treat 'value' as a concept falling outside the concept of 'state or nature' in similarly worded legislation dealing with the same subject matter. 67 Finally, in the taxpayer's submission, excluding the capital contribution from the cost base of the NMUK shares would give rise to an anomalous result. Payments into shareholders' funds may take a variety of forms, including the purchase of shares, the payment of calls on shares, and as here, by the making of capital contributions. It was contended that to allow some of these payments to be taken into account in determining cost base, but not others (being the capital contribution), is not capable of rational explanation. 68 The Commissioner responded to this submission by contending that the exclusion of the capital expenditure of ₤42.912 million from the reduced cost base of the shares does not give rise to an anomalous result. It may be that the amount would have been part of the cost base if it had taken some other form. However, the way in which a company raises capital can take many forms, each with different taxing consequences. Moreover, it was submitted that the provision is not specific to cost base in respect of shares, but to assets generally. The way in which the taxpayer here determined to contribute capital to NMSLAL should not dictate the proper construction of the section because the taxpayer may have been able to secure the expenditure as part of the cost base if it had been done differently.


case_outcome: cited

case_text: At the outset, I reject the Commissioner's submission that I should elevate the UK decisions or the dicta contained therein to decisions or dicta which I should presume the Commonwealth Legislature treated as correct and adopted in relation to the meaning of the words now under consideration in s 160ZH(3)(c): see, eg, Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 , at [282]-[283]; and PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241, 251.


case_outcome: considered

case_text: It is then convenient at this point to consider the notion of a share. A share was described by Williams J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 156: In Borland's Trustee v. Steel Bros. & Co. Ltd. (1901) 1 Ch. 279, at p 288, Farwell J., in a passage which Lord Russell of Killowen in Inland Revenue Commissioners v. Crossman (1937) A.C. 26 , at p 66 described as an accurate exposition of the nature of a share, stated that a share is the interest of a shareholder in the company measured by a sum of money for the purpose of liability in the first place and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders inter se in accordance with ... the Companies Act ... a share is an interest measured by a sum of money and made up of various rights contained in the contract, including the right to a sum of money of a more or less amount. (emphasis in original) More recently, the joint judgment of McHugh, Gummow, Hayne and Callinan JJ in Pilmer v Duke Group Limited (in Liquidation) [2001] HCA 31 ; (2001) 207 CLR 165 , 179 cited the statement of Farwell J as the classic description of a share. However, their Honours went on to say that 'the reference to measuring the interest of a shareholder in a company by a sum of money is no longer apt under present corporations law in Australia following the abolition of the concept of par value and of authorised capital' (at [19]). 46 More specifically, a share comprises 'a congeries of rights in personam ' ( Archibald Howie [1948] HCA 28 ; 77 CLR 143 at 154 per Dixon J) which includes the right to participate in dividends, the right to participate in a distribution of assets upon a winding up, and the right to receive capital upon a reduction of capital by the company: Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd [1995] FCA 1106 ; (1995) 56 FCR 236 at 255.


case_text: It may be said that these aspects contribute to the economic content of a share. Some commentators make mention of the 'economic' character of a share. For example, Professor R Pennington in (1989) 10 Company Lawyer 140 concluded that 'they are a species of intangible movable property which comprise a collection of rights and obligations relating to an interest in a company of an economic and proprietary character, but not constituting a debt'. After all, a share is a fractional part of the capital, and thus confers upon the shareholder a certain 'interest' to a proportionate part of the assets of the corporation whether by way of dividend or of distribution of assets in winding up (see Bradbury v English Sewing Cotton Company Ltd [1923] AC 744 , 767 per Lord Wrenbury), and that that 'interest' might come to represent in value far more than the original capital which had been contributed (see Ord Forrest Pty Ltd v Federal Commissioner of Taxation [1974] HCA 57 ; (1974) 130 CLR 124 , 132 and 133 per Stephen J). 48 It was on the basis of these bundle of rights in personam , the taxpayer submitted that capital expenditure in relation to shares will be 'reflected' in the 'state or nature' of the shares where the amount of the contribution increases shareholders' equity thereby increasing their value, and the amount of the contribution remains available for return to the shareholders pursuant to the rights attaching to the shares. 49 In the present case, the payment of the capital contribution to shareholders' funds of NMSLAL was made for the purpose of, and to the extent of [sterling]42.912 million had the effect of, increasing the embedded value of NMSLAL and the embedded value of NMUK, and thus, the value of the shares in NMUK. The benefit of the contribution to the extent of [sterling]42.912 million remained reflected in the value of shares in NMUK at the time of their disposal. Moreover, after April 1993 and until the date of sale, the amount of the contribution to the extent of [sterling]42.912 million remained in existence and was available to be returned to the shareholders' funds of NMSLAL, and distributed as capital to NMUK and by NMUK to the taxpayer pursuant to the rights attaching to the shares. This is how, as it was argued by the taxpayer, the capital contribution was reflected in the 'state or nature' of the shares in the context of s 160ZH(3)(c). 50 I was taken to a number of dictionary definitions of the words 'state', 'nature' and 'value'. Relevantly, the first definition given by the Macquarie Dictionary (4 th ed) for 'state' is 'the condition of a person or thing, as with respect to circumstances or attributes'. The definition of 'nature' relevantly refers to 'the particular combination of qualities belonging to a person or thing by birth or constitution', referring to the inherent qualities of a person or thing. 'Value' is relevantly defined as 'material or monetary worth, as in traffic or sale' and 'the worth of a thing as measured by the amount of other things for which it can be exchanged, or as estimated in terms of a medium of exchange'.


case_title: Esso Australia Resources Ltd v Commissioner of Taxation 1998) [1998] FCA 1655 ; 83 FCR 511

case_text: One is reminded by these submissions of the comments of Black CJ and Sundberg J in Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 , 518-19: In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament. ... [w]e are unable to conclude that the operation of ss 118 and 119 on a literal reading does not conform to the legislative purpose. 70 I do not accept that any anomaly arises from the construction pressed by the Commissioner in this case. I accept the submissions of the Commissioner that the taxpayer, having chosen a particular way in which to organise its affairs, must then be bound by any fiscal consequences that follow, and this does not lead to an anomaly, but arises because of the application of the legislative provision to the facts. 71 In light of the above reasons, the application should be dismissed with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 10 December 2008 Counsel for the Applicant: G J Davies QC, S H P Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: J Davies SC, P Nicholas Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 October 2008 Date of Judgment: 10 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1871.html


case_title: Falconer v Pederson [1974] VR 185

case_text: Whilst a useful reference, one should be careful not to be restricted by dictionary definitions and one should look at the context in which each word appears in s 160ZH(3)(c) and the context in which s 160ZH(3)(c) itself appears: see, eg, Falconer v Pederson [1974] VR 185 , 187. 52 I have already attempted to explain that context. Looking at the context in which the concept 'state or nature' is used in s 160ZH(3)(c) referable to a share, I do not consider that concept includes a share's value. As I have said, s 160ZH(3)(c) in my view, clearly distinguishes the concept of 'value', with 'state' or 'nature'. I do not mean by this to treat the term 'state or nature' as a composite phrase, but I do consider it appropriate to view both words in the context in which they appear alongside 'value' as found in the first limb of s 160ZH(3)(c). Undoubtedly, a share as an item of property differs from property such as land in that a share's characteristics are fixed primarily by the obligations and rights in the contract between company and shareholder. In the case of land, as the example in the Explanatory Memorandum would indicate, 'value' would not be included within the concepts of 'state' or 'nature'. Similarly, in the case of a share 'value' is not included within the concepts of 'state' or 'nature'. 53 Even by just considering the words 'state' or 'nature' themselves, I am also of the view that it cannot be said in relation to a share as an item of property, which may be bought and sold, that 'value' forms any part of the nature or state of that form of asset. The 'nature' of a share refers to the bundle of rights (and obligations) attaching to a share, as described previously, being the inherent qualities of a share. Those rights exist, and may be exercised, irrespective of their value. The 'state' of a share does not refer to its 'value', but refers to other matters, such as whether a share is fully paid up or not. The value of a share does not affect the 'state' of a share, if one focuses on the particular condition of a share as an item of property.


case_text: It is then convenient at this point to consider the notion of a share. A share was described by Williams J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 156: In Borland's Trustee v. Steel Bros. & Co. Ltd. (1901) 1 Ch. 279, at p 288, Farwell J., in a passage which Lord Russell of Killowen in Inland Revenue Commissioners v. Crossman (1937) A.C. 26 , at p 66 described as an accurate exposition of the nature of a share, stated that a share is the interest of a shareholder in the company measured by a sum of money for the purpose of liability in the first place and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders inter se in accordance with ... the Companies Act ... a share is an interest measured by a sum of money and made up of various rights contained in the contract, including the right to a sum of money of a more or less amount. (emphasis in original) More recently, the joint judgment of McHugh, Gummow, Hayne and Callinan JJ in Pilmer v Duke Group Limited (in Liquidation) [2001] HCA 31 ; (2001) 207 CLR 165 , 179 cited the statement of Farwell J as the classic description of a share. However, their Honours went on to say that 'the reference to measuring the interest of a shareholder in a company by a sum of money is no longer apt under present corporations law in Australia following the abolition of the concept of par value and of authorised capital' (at [19]).


case_title: PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241


case_text: Both parties, in support of their own constructions, referred to the Explanatory Memorandum to the Income Tax Assessment Amendment (Capital Gains) Bill 1986 (Cth) which inserted s 160ZH(3)(c) into the Act. I note that care must be taken in the use of an explanatory memorandum: see, eg, Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74 ; (1986) 68 ALR 416 , 420. 42 The Explanatory Memorandum stated (although in this text referring to 160ZH(1)(c) which is in the same terms as s 160ZH(3)(c)): An example of the type of expenditure which may be included in the cost base to a taxpayer of an asset under paragraph (c) would be expenditure incurred on the extension of a building. Generally, expenditure on rates, interest and repairs will not fall within the cost base of the asset as these items of expenditure may be classed as expenses of a revenue nature and not of a capital nature. Note that expenditure incurred in enhancing the value of the asset must be reflected in the state or nature of the asset at the time of disposal. For example, if a carport is erected adjacent to an income-producing property but at a later stage is dismantled and a garage erected, the expenditure incurred in erecting the carport would be disregarded in calculating the cost base of the property as it is no longer reflected in the state or nature of the asset. Similarly, paragraph (c) is designed to exclude from the cost base any expenditure incurred for the purpose of enhancing the value of the asset by way of improvements which have wasted away prior to disposal. 43 In considering the competing submissions on the construction of s 160ZH(3)(c), the Explanatory Memorandum provides little assistance, although it does indicate an approach to the intended operation of the provision in relation to tangible assets. The example given of the type of capital expenditure covered by s 160ZH(3)(c) is that of expenditure incurred to erect a carport adjacent to an income-producing building. The example continues that if the carport were to be subsequently dismantled prior to sale, the expenditure would be disregarded as it would not be reflected in the state or nature of the asset at the time of the sale. Such an example is not easily translatable to intangible property such as shares as the example assigns physical characteristics to 'state or nature'. The example does indicate, however, that any physical changes brought about by the expenditure must continue and must not have dissipated prior to disposal of the asset, for a taxpayer to take advantage of the provision.


case_text: I have considered the issue for determination without reference to any direct authority on s 160ZH(1)(c). The phrase 'reflected in the state or nature of the asset' has not been authoritatively considered by Australian courts. The only consideration of the phrase, appears in Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 1304 ; (2004) 58 ATR 1172 , in which Member G A Barton considered the identical phrase as found in ss 160ZH(1)(c) and (2)(c) of the Act. Member Barton found that the taxpayer was not entitled to include capital expenditure by way of incentive payments in the cost base of the shares in calculating the capital gain on the sale of those shares, as they were not reflected in the 'state or nature' of the shares at the time of disposal. There was no dispute that the incentive payments constituted expenditure of a capital nature. Member Barton concluded, however, that (at [43]): The Tribunal finds that none of the rights that constituted the applicant's shares in the proprietary company and, subsequently, in the new company, was reflective of the incentive payments. There was no evidence before the Tribunal on which it could find that the applicant's shares in the proprietary company or in the new company, constituted a class of shares reflecting the amount of the incentive payments because they included a special or additional right attributable to such payments. The fact that the issued shares in the new company were listed on the boards of the London and Australian stock markets did not make the state or nature of the applicant's shares reflective of the amount of the incentive payments. The state or nature of the applicant's shares in the new company was indistinguishable from that of other issued shares in the new company. The Tribunal rejects the proposition that any causal link between the incentive payments and the listing of the issued shares in the new company makes the state or nature of the applicant's shares in that company reflective of the amount of the incentive payments for the purposes of ss 160 ZH(1)(c) and (2)(c) of the ITAA 1936. So the Tribunal finds that the state or nature of the applicant's shares in the proprietary company did not reflect the amount of the incentive payment when they were exchanged for shares in the new company, and the state or nature of the shares in the new company did not reflect that amount when the applicant disposed of them. In the light of this finding it is unnecessary for the Tribunal to consider whether the incentive payment was incurred for the purpose of enhancing the value of the applicant's shares in the proprietary company and in the new company and whether the indexed cost base of the trustee's shares in the new company included any part of the incentive payment.


case_text: More specifically, a share comprises 'a congeries of rights in personam ' ( Archibald Howie [1948] HCA 28 ; 77 CLR 143 at 154 per Dixon J) which includes the right to participate in dividends, the right to participate in a distribution of assets upon a winding up, and the right to receive capital upon a reduction of capital by the company: Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd [1995] FCA 1106 ; (1995) 56 FCR 236 at 255.


case_text: In The Trustees of the FD Fenston Will Trusts v The Commissioners of Her Majesty's Revenue and Customs (unreported, Special Commissioners, 7 February 2007), the Special Commissioners considered s 38(1)(b) of the Taxation of Chargeable Gains Act 1992 (UK) which likewise contains the phrase 'reflected in the state or nature of the asset'. The expenditure in this case was made by the trustees as capital contributions to a company in which they held shares. Those shares were the relevant assets. The appellants submitted that the shares increased in value following the expenditure and the expenditure was therefore reflected in the state or nature of the shares at that time, continuing through to the time of disposal. However, the Special Commissioners found at [23] that state or nature could not be equated with value: It is clear from the provision that Parliament did not intend that all expenditure incurred for the purpose of enhancing the value of an asset should be deductible in computing capital gains. Only such expenditure as would be reflected in the "state and nature of the asset at the time of the disposal" was to be allowed. Further, "state and nature" for these purposes must be something other than merely the value of the asset otherwise this phrase would add nothing to the immediately preceding words. In this case the Capital Contributions did not result in any increase in the number of shares in issue, or result in any change in the rights or restrictions attaching to the shares. The only effect of the Capital Contributions was to increase the surplus of the company which would increase the amount available for distribution to shareholders, and therefore presumably the value of the shares. We do not consider this sufficient for the expenditure on the Capital Contributions to be reflected in the state and nature of the shares, either at the time the expenditure was incurred or at any time subsequently. (emphasis added) 63 The Commissioner before me relied upon above passages in the UK authorities, and particularly the last sentence in Fenston's case. On the other hand, the taxpayer submitted that the UK authorities have no precedential value, either because in the case of Aberdeen the actual decision relied on was overturned by the House of Lords, and in the case of Fenston , the comments relied upon were clearly dicta. The taxpayer also contended that the dicta relied upon by the Commissioner before me in the above passages was wrong.


case_outcome: referred to

case_text: The question of impecuniosity, of course, is always a relevant factor for a person who is unrepresented and who happens to be in those circumstances. However, the authorities are clear that impecuniosity itself is not a basis on which a party is relieved of the obligation to prosecute his application diligently: Ferdinands v The Chief of Army [2003] FCAFC 10 at [36] . Moreover, the failure of the applicant to obtain a solicitor or counsel who satisfies what he says is a test of honesty and decency cannot be a ground for or an excuse for the applicant failing to bring the application within the time prescribed by the High Court Rules . In the end, I think it not unfair to say that no real explanation has been given for the delay, notwithstanding that this proceeding was commenced more than two years ago. 25 The applicant has been convicted in the Adelaide Magistrates Court and by a Defence Force Magistrate. The thrust of the applicant's complaints is that Brigadier Appleton wrongly took into account those convictions and the circumstances surrounding those convictions. Rather, Brigadier Appleton should have, it is asserted, ignored the convictions because the convictions ought to be set aside. 26 The proceeding which was commenced in the High Court is patently an abuse of process in that it seeks by the application for the issue of the constitutional writs to set aside a conviction in the Adelaide Magistrates Court and a conviction by a Defence Force Magistrate.


case_title: Gallo v Dawson (1990) 93 ALR 479

case_text: Both Mr Ferdinands and Dr Bleby, who appeared for the respondents, referred me to Gallo v Dawson (1990) 93 ALR 479. In Gallo v Dawson 93 ALR 479 , McHugh J set out discussing the then High Court Rules relating to an extension of time at 480: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 21 I accept, of course, that all of those matters are relevant. Those matters were all referred to by McHugh J in Gallo v Dawson 93 ALR 479. But they are, I think, of less importance than the two primary issues which must be determined. The primary issues are first, the explanation for the delay and secondly, the prospects of the applicant succeeding on the substantive application. 22 The applicant has filed four affidavits in support of the application for an extension of time. In an affidavit sworn on 4 May 2007, he says: 55. With regard to Extension of Time matters, I say that time should be and will be extended until I can find a legal practitioner that is honest and decent and can step forward and assist the High Court of Australia in these matters of fraud and racial hatred of employees in the Department of Defence. 23 In his last affidavit, which was sworn on 30 October 2007, he asserts that he believes that he has acted within a reasonable time. He says in that affidavit that the delay has been caused by: 38. ... [E]xtreme poverty and hardship and trying to get the respondents to actively engage in serious issues such as professional misconduct, process corruption and hate crimes without using the courts.


case_text: In Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 , McHugh J was concerned with an application for the issue of the writs of certiorari and mandamus in circumstances where the application was 11 months out of time for the issue of certiorari and 15 months out of time for the issue of mandamus, a similar delay to the period in this proceeding. 18 McHugh J said that the grant of an extension of time is not automatic whether the substantive application is for constitutional relief or by way of an appeal. He said (at [13]): A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration. 19 McHugh J said that he needed to take into account the explanation for the delay and, where the application is for an extension of time, the prospects of the application succeeding.


case_title: Lamb v Ariss [2006] FMCA 510

case_text: On 13 April 2006, the Magistrate discharged the mandatory injunction and related orders on the ground that the applicant's solicitor had failed to act with the requisite candour when seeking an order ex parte: see Lamb v Ariss [2006] FMCA 510 (the Magistrate's reasons). 3 The applicant applies for leave to appeal, if it be required, from the discharge of the mandatory injunction. (A notice of appeal has been filed.) The applicant also moves the Court for a stay of the proceeding before the Magistrate pending the hearing and determination of the appeal. 4 Three issues arise for determination by me: (a) whether leave to appeal is required; (b) if leave is required, whether leave should be granted; and (c) if no leave is required or, if leave is required, leave is granted, whether the applicant is entitled to the stay.


case_text: The Magistrate's reasons bear repetition to some extent: "31. In my view, it is perfectly clear from a reading of the transcript of the Registrar's examination which took place on 22 December 2005 that the bankrupt had stated a belief that the jewellery was given to her as a gift and, as she described it, "They were mine." But also it is equally clear that she immediately proceeded to say "But but they weren't" and that "They were owned by Sira Properties". Elsewhere in the material, it is clear that the bankrupt confirmed that on the previous occasion when she gave evidence, the evidence was to the effect that the jewellery might be the property of Sira Properties. 32. Whilst the court is prepared to make due allowance for the fact that when the application was made before this court on 23 December 2005 the transcript of the previous day's examination was not available, the fact remains that both senior counsel and Mr King were present both on 22 December 2005 before the Registrar and before this court upon the hearing of the urgent ex parte application on 23 December 2005." The Magistrate then quoted from Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-682 and Milcap Publishing Group AB v Coranto Corporation Pty Ltd (1995) 32 IPR 34 at 36. He went on to say: 40. In my view, the making of ex parte orders by any court is a significant and serious process to be undertaken, and it should be undertaken with due care. Applying [Thomas A Edison] to the present case, it is clear in my view having regard to a comparison between the first King affidavit [(ie the affidavit described at [8])] and in particular paragraph 11 thereof [(ie the paragraph where what is set out in the first sentence at [8](g) appears)] and the limited extract of the evidence of the bankrupt that the court was not at the ex parte hearing provided with all the evidence which was then known to either the deponent and/or his client , and indeed counsel who appeared both before this court and the s.81 examination. 41. For a bankrupt's evidence to be limited in the way it is sought to be limited in the first King affidavit, in my view can only result in the court being misled. It is the responsibility of parties seeking to make an ex parte application, to bring to the notice of the court all facts material to the determination of the right to that order and I accept that it is no excuse for any party to indicate that he or she was not aware of the importance of the material. 42. As indicated by the High Court in [Thomas A Edison], uberrima fides is required. If a party induces a court to act in the absence of another party, and in doing so fails in its obligation, in my view, to paraphrase the words of the High Court, unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. 43. It seems logical to me and irresistible that if the bankrupt or indeed if the First Respondent had been present upon the hearing of the application by this court on 23 December 2005, then the complete extract of the bankrupt's evidence would have been referred to along with other extracts during the course of the examination before the Registrar, indicating that a concession was made by the bankrupt that the jewellery was owned by the Second Respondent, even though the bankrupt believed the jewellery had been a gift and that it belonged to her or, to use her words, was "mine". ... 48. The decision to proceed on an ex parte basis is a significant decision which should not be regarded as a decision to be taken lightly by legal practitioners. In this instance, the proceedings commenced arguably on the wrong form, failed to seek substantive relief, and more significantly relied upon what I find to be inadequate and misleading affidavit evidence in relation to the full extent of the evidence given concerning a crucial issue of significance to the court's deliberation, based upon the bankruptcy evidence of the previous day's section 81 examination. 49. Having embarked upon the ex parte urgent application, then the Applicant does so at the Applicant's peril. The duty to act with utmost good faith is a significant duty, and for the reasons stated I am satisfied in this instance that that duty has not been discharged. In my view it follows that the orders made by the court on 23 December 2005 should therefore be discharged. 50. That leaves the question of whether the court should in the circumstances grant leave to the Applicant to now amend the [FMCA] application retrospectively, to replicate the orders sought as interim orders in that part of the [FMCA] application referring to final orders. In my view, in the exercise of the discretion, whilst the court from a practical point of view may be tempted to permit the amendment, it would seem to be unfair and contrary to the interests of justice to permit an Applicant who has failed to exercise the utmost good faith in bringing an ex parte application to then convert that application, flawed as it clearly has been found to be, to an application for substantive relief. In my view the proper course is to refuse the application to amend and to simply dismiss the [FMCA] application and otherwise discharge the orders made by the court on 23 December 2005." (The emphasis is mine.) 26 The applicant also contended that the Magistrate erred when he said at para 40 of his reasons (see the second passage quoted at [12]) that "the court was not ... provided with all the evidence which was then known to either the deponent and/or his client". (The emphasis is mine.) His Honour posited and said he would apply the tests found in Thomas A Edison and Milcap Publishing . A fair reading of his reasons discloses that, notwithstanding the language of para 40, the Magistrate correctly applied those tests. At para 35, his Honour said that the respondents had contended that a comparison between Mr King's affidavit and the transcript of the bankrupt's second examination showed that the court "was clearly misled in relation to what could be described as a crucial issue" leading to the granting of the mandatory injunction. The "crucial issue" to which his Honour referred is that highlighted at [23]: that the bankrupt had conceded that she did not own the jewellery in question. The Magistrate's reference to "all the evidence" was a reference to all the evidence going to the "crucial issue". The comparison shows that the concession was not disclosed by Mr King's affidavit. The Magistrate's reference to "all the evidence then known " (emphasis added) shows that the Magistrate was engaging in the comparison. That is further shown by his statements that the material before him on 23 December 2005 was: • "incomplete and ... had the effect of misleading the court in relation to the true state of the evidence which had been given by the bankrupt on the previous day " (para 44); and • "inadequate and misleading ... in relation to the full extent of the evidence given concerning a crucial issue of significance to the court's deliberation , based upon the ... evidence of the previous day's ... examination " (para 48). (The emphases are mine.) Further, the Magistrate said at para 43 that: "It seems logical to me and irresistible that if the bankrupt or indeed if the First Respondent had been present upon the hearing of the application by this court on 23 December 2005, then the complete extract of the bankrupt's evidence would have been referred to along with other extracts during the course of the examination before the Registrar, indicating that a concession was made by the bankrupt that the jewellery was owned by the Second Respondent, even though the bankrupt believed the jewellery had been a gift and that it belonged to her or, to use her words, was 'mine'." In each of the two paras preceding the one I have just quoted, the Magistrate said that the obligation of a party seeking an order ex parte was to bring forward all material facts. Clearly, the Magistrate was of the opinion that all material evidence on the crucial issue equated with all the evidence on the crucial issue. He was correct in that opinion.


case_outcome: followed

case_text: The Magistrate's reasons bear repetition to some extent: "31. In my view, it is perfectly clear from a reading of the transcript of the Registrar's examination which took place on 22 December 2005 that the bankrupt had stated a belief that the jewellery was given to her as a gift and, as she described it, "They were mine." But also it is equally clear that she immediately proceeded to say "But but they weren't" and that "They were owned by Sira Properties". Elsewhere in the material, it is clear that the bankrupt confirmed that on the previous occasion when she gave evidence, the evidence was to the effect that the jewellery might be the property of Sira Properties. 32. Whilst the court is prepared to make due allowance for the fact that when the application was made before this court on 23 December 2005 the transcript of the previous day's examination was not available, the fact remains that both senior counsel and Mr King were present both on 22 December 2005 before the Registrar and before this court upon the hearing of the urgent ex parte application on 23 December 2005." The Magistrate then quoted from Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-682 and Milcap Publishing Group AB v Coranto Corporation Pty Ltd (1995) 32 IPR 34 at 36. He went on to say: 40. In my view, the making of ex parte orders by any court is a significant and serious process to be undertaken, and it should be undertaken with due care. Applying [Thomas A Edison] to the present case, it is clear in my view having regard to a comparison between the first King affidavit [(ie the affidavit described at [8])] and in particular paragraph 11 thereof [(ie the paragraph where what is set out in the first sentence at [8](g) appears)] and the limited extract of the evidence of the bankrupt that the court was not at the ex parte hearing provided with all the evidence which was then known to either the deponent and/or his client , and indeed counsel who appeared both before this court and the s.81 examination. 41. For a bankrupt's evidence to be limited in the way it is sought to be limited in the first King affidavit, in my view can only result in the court being misled. It is the responsibility of parties seeking to make an ex parte application, to bring to the notice of the court all facts material to the determination of the right to that order and I accept that it is no excuse for any party to indicate that he or she was not aware of the importance of the material. 42. As indicated by the High Court in [Thomas A Edison], uberrima fides is required. If a party induces a court to act in the absence of another party, and in doing so fails in its obligation, in my view, to paraphrase the words of the High Court, unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. 43. It seems logical to me and irresistible that if the bankrupt or indeed if the First Respondent had been present upon the hearing of the application by this court on 23 December 2005, then the complete extract of the bankrupt's evidence would have been referred to along with other extracts during the course of the examination before the Registrar, indicating that a concession was made by the bankrupt that the jewellery was owned by the Second Respondent, even though the bankrupt believed the jewellery had been a gift and that it belonged to her or, to use her words, was "mine". ... 48. The decision to proceed on an ex parte basis is a significant decision which should not be regarded as a decision to be taken lightly by legal practitioners. In this instance, the proceedings commenced arguably on the wrong form, failed to seek substantive relief, and more significantly relied upon what I find to be inadequate and misleading affidavit evidence in relation to the full extent of the evidence given concerning a crucial issue of significance to the court's deliberation, based upon the bankruptcy evidence of the previous day's section 81 examination. 49. Having embarked upon the ex parte urgent application, then the Applicant does so at the Applicant's peril. The duty to act with utmost good faith is a significant duty, and for the reasons stated I am satisfied in this instance that that duty has not been discharged. In my view it follows that the orders made by the court on 23 December 2005 should therefore be discharged. 50. That leaves the question of whether the court should in the circumstances grant leave to the Applicant to now amend the [FMCA] application retrospectively, to replicate the orders sought as interim orders in that part of the [FMCA] application referring to final orders. In my view, in the exercise of the discretion, whilst the court from a practical point of view may be tempted to permit the amendment, it would seem to be unfair and contrary to the interests of justice to permit an Applicant who has failed to exercise the utmost good faith in bringing an ex parte application to then convert that application, flawed as it clearly has been found to be, to an application for substantive relief. In my view the proper course is to refuse the application to amend and to simply dismiss the [FMCA] application and otherwise discharge the orders made by the court on 23 December 2005." (The emphasis is mine.) 24 In Milcap Publishing , Davies J said at 35: "When an ex parte order is sought, the person seeking the order must be frank and disclose to the court all the matters which, if put before the court, might have an effect upon the court's decision. The facts that should be disclosed go both to matters of liability and matters of discretion. If a fact is material in that it would be a matter to be taken into account by a court in the making of the decision to grant an injunction or in the formulation of an order that is to be made, it is a matter that ought to be disclosed." (The emphasis is mine.) I think it clear that that test has been satisfied. A reasonable person in the Magistrate's position would have taken into account what the bankrupt was in fact saying at her second examination in deciding whether or not to grant the mandatory injunction. Undoubtedly, that information might have affected that decision. 25 The applicant contended that the Court should apply the test in Re South Downs Packers . In that case, Connolly J said at 566 that "[a] non-disclosure will not be material unless it be likely to influence the court in acceding to the application". (The emphasis is mine.) Though I prefer to follow Milcap Publishing as it is a decision of this Court, the application of the test in Re South Downs Packers would not lead to a different result. 26 The applicant also contended that the Magistrate erred when he said at para 40 of his reasons (see the second passage quoted at [12]) that "the court was not ... provided with all the evidence which was then known to either the deponent and/or his client". (The emphasis is mine.) His Honour posited and said he would apply the tests found in Thomas A Edison and Milcap Publishing . A fair reading of his reasons discloses that, notwithstanding the language of para 40, the Magistrate correctly applied those tests. At para 35, his Honour said that the respondents had contended that a comparison between Mr King's affidavit and the transcript of the bankrupt's second examination showed that the court "was clearly misled in relation to what could be described as a crucial issue" leading to the granting of the mandatory injunction. The "crucial issue" to which his Honour referred is that highlighted at [23]: that the bankrupt had conceded that she did not own the jewellery in question. The Magistrate's reference to "all the evidence" was a reference to all the evidence going to the "crucial issue". The comparison shows that the concession was not disclosed by Mr King's affidavit. The Magistrate's reference to "all the evidence then known " (emphasis added) shows that the Magistrate was engaging in the comparison. That is further shown by his statements that the material before him on 23 December 2005 was: • "incomplete and ... had the effect of misleading the court in relation to the true state of the evidence which had been given by the bankrupt on the previous day " (para 44); and • "inadequate and misleading ... in relation to the full extent of the evidence given concerning a crucial issue of significance to the court's deliberation , based upon the ... evidence of the previous day's ... examination " (para 48). (The emphases are mine.) Further, the Magistrate said at para 43 that: "It seems logical to me and irresistible that if the bankrupt or indeed if the First Respondent had been present upon the hearing of the application by this court on 23 December 2005, then the complete extract of the bankrupt's evidence would have been referred to along with other extracts during the course of the examination before the Registrar, indicating that a concession was made by the bankrupt that the jewellery was owned by the Second Respondent, even though the bankrupt believed the jewellery had been a gift and that it belonged to her or, to use her words, was 'mine'." In each of the two paras preceding the one I have just quoted, the Magistrate said that the obligation of a party seeking an order ex parte was to bring forward all material facts. Clearly, the Magistrate was of the opinion that all material evidence on the crucial issue equated with all the evidence on the crucial issue. He was correct in that opinion.


case_outcome: applied

case_text: The Magistrate's orders of 13 April 2006 are interlocutory. They do not finally determine the rights of the parties. See Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213.


case_outcome: distinguished

case_text: Further, the fact that the Magistrate determined that there should be an assessment of damages to be paid pursuant to the undertaking does not support the contention that leave is not required. The applicant relied on the decision of the Full Court in City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 173-175 as authority for that proposition. I cannot see how City of Camberwell can be so relied upon. In that case, the trial judge, by agreement with the parties, decided liability before assessing damages. He decided that the defendant was indeed liable to the plaintiff. Though he did not make orders to that effect, a "judgment" that "the issues of liability raised by the [defendant] are not to be resolved in favour of the [defendant] and it is appropriate therefore to turn to the issues between the parties as to damages" was authenticated. Marks and Gobbo JJ (Fullagar J dissenting) said at 174-175 that: "The circumstances are, in our opinion, analogous to those in Hall [v Busst [1960] HCA 84 ; (1960) 104 CLR 206] and such that it may fairly be said that the determination of the learned [trial] judge was intended as a judgment for [the plaintiff] for damages to be assessed and that therefore it is final, if not, a determination as to liability to pay damages which is final. Thus the appeal is as of right from 'a determination' within the meaning of s 10(2) of the Supreme Court Act 1986 (Vic)." Needless to say, the circumstances in this case are quite different to those in City of Camberwell . Further, the assessment of damages in this case results not from a decision on the merits as to liability (as in City of Camberwell ) but automatically upon the discharge of the mandatory injunction which was granted upon the giving of the undertaking.


case_text: The question whether leave to appeal should be granted falls to be determined according to the criteria set down by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. First, whether the impugned decision is attended with sufficient doubt to warrant its reconsideration. Secondly, whether substantial injustice would result if leave were not granted, supposing that the impugned decision was wrong. 21 The applicant, by his submissions, contends that: "9. ... The proposition that [the second respondent] and/or Mr Ariss could have been expected to contend for, if present before the [Federal Magistrates] Court, namely, that they or one of them was the true owner of the jewellery, was clearly articulated as was the basis upon which they might seek to rely to establish such a claim: (a) there was express disclosure that [the second respondent] and Mr Ariss were persons named as insureds in relation to the jewellery; (b) there was express disclosure that the bankrupt gave evidence that when she asked her husband (ie, Mr Ariss) for the jewellery, he said the jewellery was the property of [the second respondent] and that she could not have it; (c) there was express disclosure that when the husband had been examined pursuant to s81 of the Bankruptcy Act , he asserted that he had given certain items of the jewellery to one or both of this daughters, consistent with ownership of the jewellery by him or [the second respondent]; (d) there was express disclosure that the bankrupt expressed the opinion that some of the house contents, the subject of the same policy of insurance, might be owned by [the second respondent] although, like the jewellery, such items of contents were not disclosed as an asset in the balance sheet of [the second respondent]. 10. In order to determine whether or not there was 'material' non-disclosure, it is necessary to have regard to the evidence of the bankrupt as a whole. It is asserted that the fact she had earlier given evidence contrary to the proposition the jewellery was hers was not disclosed. What the transcript of the evidence given by the bankrupt on 22 December 2005 discloses is that she did on occasion give contrary evidence. That is, on occasion she gave evidence that she thought that the jewellery was either that of Mr Ariss or [the second respondent]. However, what is critical is that she was examined as to why she might hold to that view. She said in evidence that she held that view for two reasons, namely: (a) because those persons were named as insureds in relation to the jewellery; and (b) her husband had told her that the jewellery was the property of [the second respondent] or of himself. Both considerations which had led [the bankrupt] to on occasion state that the jewellery might be the property of [the second respondent] or of Mr Ariss were disclosed on the ex parte application, as was the fact there was evidence consistent with such potential claims. 11. The cases establish that, on an application made ex parte, there must be disclosure of material facts. The material facts which were required to be disclosed here were: (a) that [the second respondent] and Mr Ariss were persons who were named as persons having an insured interest in relation to the jewellery. This was disclosed in the King ... affidavit and the relevant insurance documents were exhibited; (b) that Mr Ariss, currently the sole director of [the second respondent], held the view that the jewellery in question was either his or [the second respondent's]. This was also disclosed. 12. The best evidence that Mr Ariss and/or [the second respondent] would claim to be the owners of the jewellery, and the basis of that claim, was before the Federal Magistrates Court. There was direct evidence, of which the Court was informed, that Mr Ariss asserted the jewellery was his or [the second respondent's] and, on that basis, refused to return it to his wife. In those circumstances, the fact there was additional evidence from the bankrupt that, on the basis of the insureds' interest and on the basis of what her husband told her, she believed that the jewellery may be his or [the second respondent's] jewellery, was not material. ... ... 17. The King ... affidavit disclosed that [the second respondent] or Mr Ariss would assert an entitlement to the jewellery. The ... Magistrate knew that was the case they would make and knew there was documentary evidence in support of that case, at least as to an arguable insurable interest, notwithstanding none of the jewellery appeared on the balance sheet of [the second respondent]." 28 The Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration. I do not think it necessary to go on to consider whether substantial injustice would result if leave were not granted, supposing that the Magistrate's decision was wrong. The two limbs of the test in Décor Corporation cannot be considered in isolation from one another: see Décor Corporation at 398-399. The prospect that an appeal, if leave were granted, would be successful is so remote that it would be artificial to suppose that the decision below is wrong. See Applicant VMAO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 427 at [22] .


case_text: The proposition in the first sentence of para 11 in the passage quoted at [21] is correct. A party seeking an order ex parte must disclose all material facts. However, as Campbell CJ said in Re South Downs Packers Pty Ltd [1984] 2 Qd R 559 (Full Court) at 560: "What is material in any case depends, in the first instance, upon the nature of the case sought to be made out and, to that end, must be viewed in the context of all the relevant circumstances." 23 The applicant has taken far too narrow a view of what constituted material facts that should have been disclosed to the Magistrate. His submissions quoted at [21] are, to a large extent, beside the point. A reasonable person in the Magistrate's position who had the benefit of the transcript of the bankrupt's second examination (or an accurate summary thereof) would readily discern that the bankrupt was saying that though she did not own the jewellery in question, and that it was owned by the second respondent , she thought she was "emotionally" or, indeed, morally entitled to it. Mr King's affidavit did not disclose this to the Magistrate. That was a serious omission for an affidavit that purported to give an accurate account of the evidence given by the bankrupt at her second examination. Nor was that omission rectified before the Magistrate. 25 The applicant contended that the Court should apply the test in Re South Downs Packers . In that case, Connolly J said at 566 that "[a] non-disclosure will not be material unless it be likely to influence the court in acceding to the application". (The emphasis is mine.) Though I prefer to follow Milcap Publishing as it is a decision of this Court, the application of the test in Re South Downs Packers would not lead to a different result.


case_title: Re Bayliss (1987) 15 FCR 167

case_text: Finally, the notice of appeal referred to at [3] says that the Magistrate erred in "failing to have regard to, or to apply, the decision in Re Bayliss (1987) 15 FCR 167 to which he was referred, to the case before him". Though the applicant's submissions mention Re Bayliss , the applicant's counsel did not mention it before me. In any case, I cannot see how Re Bayliss could have advanced the applicant's case as it stands for a proposition of a highly general nature. I can see no circumstance in this case that makes that proposition of especial significance.


case_text: The Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration. I do not think it necessary to go on to consider whether substantial injustice would result if leave were not granted, supposing that the Magistrate's decision was wrong. The two limbs of the test in Décor Corporation cannot be considered in isolation from one another: see Décor Corporation at 398-399. The prospect that an appeal, if leave were granted, would be successful is so remote that it would be artificial to suppose that the decision below is wrong. See Applicant VMAO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 427 at [22] .


case_text: Further, if I am incorrect and the Magistrate's orders of 13 April 2006 are final rather than interlocutory, I would nonetheless refuse to grant a stay. For the same reasons that I refused to grant leave to appeal, I would hold that the applicant has not demonstrated "a reason or an appropriate case to warrant the exercise of the discretion in his favour": Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 2 NSWLR 685 (Full Court) at 694 (and see Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87 at [13] per French J) or that he has a serious case to be tried and that the balance of convenience favours the granting of the stay: Stirling Harbour Services at [15].


case_title: Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87


case_text: As far as Ground 1 is concerned, which is the allegation of bias on the part of the Tribunal, it needs to be remembered that this ground was not argued in the proceedings before the learned Federal Magistrate. Such an allegation must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507. Rarely will bias on the part of the Tribunal be apparent from the written reasons only (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358).


case_text: In oral submissions before me today, the appellant has repeated his contention that the decisions of the delegate, the Tribunal and the learned Federal Magistrate were not fair and did not fairly reflect the merits of his claims. This is a complaint which amounts to the seeking of a merits review of the decisions and, in particular, the decision of the Federal Magistrate and cannot be pursued in this Court on an application such as that presently before me (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 ; (2000) 74 ALJR 405 per McHugh J at [67]). 20 I have come to the view that the appellant has not made out a case for overturning the Federal Magistrate's decision or for judicial review of the Tribunal's decision.


case_text: In the present case, there was nothing in the material which is before me which indicates bias. Furthermore, there is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the question of determining the application for review (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ; (2001) 75 ALJR 982 at [27] [32]). 23 Ground 1 has not been made out. 24 Ground 2 and Ground 3 should be considered together. There is no particularity to the grounds, as specified in the Notice of Appeal, no evidence to support them and no submissions which justify them. For these reasons, these grounds also cannot succeed.


case_title: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358


case_title: Abebe v Commonwealth (1999) 197 CLR 510

case_text: finding of the Tribunal in this regard was open to it on the evidence. The weight the Tribunal gives to any piece of evidence is a matter for it to decide and there is no scope for judicial review simply because another decision-maker might give greater or lesser weight to a particular matter: see Abebe v Commonwealth (1999) 197 CLR 510 at 580 and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440. The Court may not engage in fact-finding about the merits of the appellant's case.


case_text: my view his Honour was correct. The findings of the Tribunal were open to it on the evidence before it. This ground invites the Court to undertake a review of the fact finding of the Tribunal. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever to support a finding made or inference drawn by the Tribunal: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. It can not be established that there was no basis for the Tribunal finding. Rather the Tribunal carefully considered the appellant's evidence before arriving at a conclusion, albeit adverse to the appellant. It is well-established that it is no part of the function of the court, in dealing with judicial review of an administrative decision, to engage in fact-finding about the merits of the appellants' case: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The Court must be wary of turning a review of the Tribunal's decision into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.


case_text: weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13].


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_text: is an appeal against a judgment of a Federal Magistrate delivered on 18 March 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 9 April 2008: see MZXNQ v Minister for Immigration and Citizenship [2009] FMCA 197. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. The appellant is a citizen of Sri Lanka. The appellant entered Australia on 3 February 1999 on a Student visa. On 12 August 2002 he lodged an application for a protection visa with the (now) Department of Immigration and Citizenship. The appellant claimed that he had a well-founded fear of persecution on the basis of his political opinion due to his involvement with the People's Alliance ("PA"). The appellant claimed that he supported a PA candidate ("the candidate"), organised the local youth wing of the PA, and attended protests against the United National Party ("UNP"). He claimed that, as a result of his involvement, he was subjected to a number of incidents of persecution from supporters of the UNP. He claimed that he was assaulted by a mob when attending an anti-UNP protest in 1994 and that people later came with weapons to his aunt's house where he was living in hiding and inquired about him. He further claimed that, in June 1994, he was assaulted by a gang, which resulted in him sustaining an injury to his arm and requiring treatment in hospital. He said that the candidate he supported advised him to leave the country because he was being targeted by the UNP.


case_title: NAHI v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 10

case_text: my view his Honour was correct. The findings of the Tribunal were open to it on the evidence before it. This ground invites the Court to undertake a review of the fact finding of the Tribunal. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever to support a finding made or inference drawn by the Tribunal: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. It can not be established that there was no basis for the Tribunal finding. Rather the Tribunal carefully considered the appellant's evidence before arriving at a conclusion, albeit adverse to the appellant. It is well-established that it is no part of the function of the court, in dealing with judicial review of an administrative decision, to engage in fact-finding about the merits of the appellants' case: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The Court must be wary of turning a review of the Tribunal's decision into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. The weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13]. In any case, even if it could be established that the Tribunal made an error of fact by relying on incorrect country information, this would not amount to a jurisdictional error: see NAHI at [10]. The findings of the Tribunal regarding the politicians in Sri Lanka, which was based on the DFAT report, were open to it on the evidence before it. There is no apparent error in the Tribunal's reliance on this report. The fourth ground is not made out. GROUND 5 The Tribunal's conclusion that the appellant was not telling the truth about his involvement in the PA youth groups was based on its erroneous conclusions in Grounds 1 through 4 above.


case_text: finding of the Tribunal in this regard was open to it on the evidence. The weight the Tribunal gives to any piece of evidence is a matter for it to decide and there is no scope for judicial review simply because another decision-maker might give greater or lesser weight to a particular matter: see Abebe v Commonwealth (1999) 197 CLR 510 at 580 and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440. The Court may not engage in fact-finding about the merits of the appellant's case. The weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13].


case_text: Telstra contended that the preparation and publication of the report making findings of a breach of s 17 of the Act gave rise to an obligation on the part of Mr Smith to afford procedural fairness to Telstra. Telstra argued that a person has the right to be heard prior to an administrative decision-maker making a decision which adversely affects the legal rights or legitimate expectations of a person (referring to Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598). Telstra submitted that it was not given any, or adequate, opportunity to provide information and make submissions in respect of matters critical to the decision that it breached s 17 of the Act. Specifically, Telstra argued that, despite a direct request, it was not given notice of the adverse findings before the report was published, nor was Telstra given notice of, or an opportunity to respond to, the matters underlying the findings.


case_text: It is not in all cases a pre-requisite for the according of procedural fairness that a draft of a report containing adverse findings be given for comment to the person the subject of the adverse findings: see, eg, Hoffman La Roche v Trade Secretary [1975] AC 295 at 369; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 590-91; Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35 ; (2003) 196 ALR 692 , at 713-14.


case_text: Telstra relied upon principle adopted in Brinsmead v Commissioner, Tweed Shire Council Public Inquiry (2007) 69 NSWLR 438, 443 to the effect that 'the statutory power to inquire and report is not in the absence of clear words to be read as extending the power to make a finding of criminal guilt or other improper conduct' (at [17]). 93 Accepting this principle, and accepting that the finding that Telstra breached s 17 is equivalent to 'improper conduct', I consider that in the context of the legislative scheme, Mr Smith could find and conclude, as he did, that Telstra breached s 17 of the Act, and include that conclusion in the report. This is for the simple reason that s 41 of the Act empowers an investigator to conduct an investigation concerning a breach or possible breach of the Act, and the report of that investigation (in the case where the investigator considers there to be a breach) must necessarily include his conclusion from conducting the investigation. This seems to me to be the clearest indication, without more, that an investigator is not only empowered to so conclude, but is under a duty to include in his or her report any conclusion reached as to breach, or possible breach, of the Act. 94 Further, I do not accept Telstra's assertion that there was no material available to Mr Smith capable of satisfying him that there was a breach of s 17. There was such material available and Mr Smith properly took it into account.


case_title: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576


case_text: Telstra also referred to the decision of Cummins J in Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 103 in support of the contention that Mr Smith was obliged to state with particularity the reasonably practicable steps that should have been undertaken by Telstra. 72 The purpose of the requirement for reasons in this case, Telstra argued, was to enable the person the subject of an adverse finding to be informed of the basis for the reaching of the conclusion that s 17 of the Act had been breached and to enable a Court on review to determine if proper principle has been applied in reaching such a conclusion. Telstra then contended that this obligation necessarily required Mr Smith to set out the relevant evidence, material findings of fact and conclusions, and his reasons for making the relevant findings of fact and conclusions. 73 Telstra contended that in this case the investigator asserted that Telstra breached s 17 of the Act but gave no reasons to permit an understanding as to how the conclusion was reached. In particular, the investigator asserted the existence of each of the essential elements required to be established for a breach of s 17 but gave no reasons to justify such findings. There were no reasons given for the findings that the incident occurred at a workplace , under the control of Telstra, that the incident occurred as a result of Telstra's undertaking and that there were reasonably practicable measures that were available to Telstra. There was, it was said, on the face of the report, an obvious and fundamental failure to comply with s 53(2) of the Act. 74 It was submitted that the legislature chose to make the provision of reasons for any conclusions in a report a mandatory requirement for a valid report. The type of response required by s 53(4) of the Act, particularly when read in light of the objects of the Act as specified in s 3(b) of the Act regarding encouraging and assisting persons to comply with their obligations under the Act, required the provision of proper reasons. 75 Telstra contended that the finding that Telstra breached s 17 was a serious one. If the legislature required the investigator to make such a finding, it would be hardly surprising that the legislature would require the investigator to record the evidence relied on, and the reasons giving rise to a finding that each element of s 17 was breached and was established by the evidence. 76 Moreover, it was contended by Telstra that the requirement that the investigator expose his reasons for such a serious finding and the investigator's failure to do so supports the contention of Telstra that not only did the investigator fail to comply with s 53(2), he erred in law by failing to address and make findings about matters essential to the consideration of whether a breach of s 17 had occurred. 77 I start from the proposition that the obligation to give reasons is to be assessed in light of the statutory context in which the obligation appears. Section 53(2)(a) of the Act provides that the report prepared by the investigator must include the investigator's conclusions from conducting the investigation and the reasons for those conclusions. I accept that, by reason of the application of s 25D of the Acts Interpretation Act 1901 (Cth), s 53(2)(a) is to be construed as requiring an investigator to set out his or her material findings of facts and to refer to the evidence on which those findings are based. 81 As I have alluded to previously, the investigator's role must be looked at in the overall context of the regulation of occupational health and safety issues as provided for in the Act. An investigator's report is not to be seen as a final and binding determination of whether an employer has breached, or is in possible breach of, s 17 of the Act. The investigator does not need to go through the exercise indicated by Cummins J in Esso [2001] VSC 103. Esso involved a trial process leading to a potential fine, which obviously required particularisation of each element of the alleged offence said to have been committed by the defendant. However, this does not mean that the report did not need to include 'conclusions' which could properly inform the employer of the investigator's view, but rather, that the obligation to include the conclusions is to be viewed in light of the objective of the giving of the report. The report is certainly not to be equated with the particulars of a criminal offence.


case_text: English authorities concerning the meaning of a "workplace" were said by Telstra to also reflect the view that the nature of a premises may change, depending upon the use applied to it from time to time. In Gill v Donald Humberstone & Co Ltd [1963] 3 AII ER 180, Lord Evershed considered that a working place must be a place where work was set to take place for an appreciably continuous period of time (at 188). In other cases, working place or workplace has been held to be a place where work is being done. 31 In this proceeding, the question is whether the pit and pit lid are at all times a workplace of Telstra for the purposes of the Act. There seemed no dispute that a pit is capable of being a workplace and that the pit lid could be a 'structure' or 'part' of the pit.


case_title: Hoffman La Roche v Trade Secretary [1975] AC 295


case_text: Further, in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 , Walton J Vice President applied Boral Elevators and held: 304 The decision of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) is a case in point on the flexible, transient nature of employers' places of work and effectively endorses the comment of Fisher P, quoted above, that the emphasis of the Act always seems upon the place where work is being done. From time to time the defendant performed maintenance and repair work on an inclinator, but employees of the defendant were not at the premises either at the time of the accident or between the times specified in the summons. The sole question for the Court was whether the inclinator was the defendant's place of work within the meaning of s 16. Maidment J held that it was not, on the basis that the Act was not directed at general product liability, and did not require employers such as (for example) boat repairers to ensure the safety of the end product of their work as a boat, as opposed to as a place of work. However, his Honour considered that during maintenance, the inclinator would have been the employer's place of work (at page 9): Thus it is with an employer engaged in lift maintenance. Under s 16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they were at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s. 16 is confined to the periods during which maintenance work is being conducted.


case_text: Justice Maidment referred to the decision of Fisher CJ in Inspector Clarke v WL Meinhardt & Partners Pty Ltd (unreported, Fisher CJ, 30 June 1992) concerning prosecutions under ss 15 and 16 of the NSW Act. In Meinhardt , a defendant employer had designed a safety support system, the purpose of which was to safely incorporate a historical façade into a new building on the same construction site. A different party had constructed the system. The façade collapsed. Two of the defendant employer's workers were on site at the time of the collapse, inspecting integral elements of the support system. The defendant employer submitted that its own office was its place of work, rather than the construction site. Chief Justice Fisher rejected that submission and said (at 11): I consider the phrase 'at work' in s 15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving a site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties cast upon him by the Act.


case_text: It is established principle that, in the case of a statutory power, the statutory context will be of central importance in determining the content of procedural fairness: see, eg, Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 , 444; Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550 , 584-85; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 , 503-504; and National Companies & Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296 , 326.


case_text: Looking at the words of s 5 of the Act, the pit is a premises 'in which' the prescribed employees work. The words of the definition say that the place must be somewhere 'in which' Commonwealth employees work. A pit primarily used to access and maintain telecommunications infrastructure is a place 'in which' such employees work, in the sense that it is not a private place, nor a place disconnected with the work of such employees. The ordinary meaning of the words used in the definition of 'workplace' supports this construction, and to depart from this ordinary meaning can only be justified if to do so would be in accordance with a purposive construction: see, eg, Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at [235] per Dawson J. 39 Telstra does point particularly to one object of the Act in aid of its purposive construction, namely to protect persons only arising from the activities of the employees at work. One must be careful of the use to be made of objects clauses in legislation: see Pearce & Geddes, Statutory Interpretation in Australia , (2006) (6 th ed) at [4.42]. However, in my view, this object is achieved by giving practical content to s 17 of the Act, not in the reading of the definition of 'workplace' as contended by Telstra. For instance, as the authorities relied on by Telstra indicate, the legislation there referred to does not require an employer to ensure that the product of the work is devoid of hazard. In my view, this is not because of a restricted meaning being given to the definition of 'workplace', but arises out of the scope of the obligations cast upon any defendant employer by s 17. 40 It is important to recall that definitions found in legislation are not to be treated as substantive provisions they are there as an aid to construction of the operative parts of the legislation. Consequently, the operation of any legislation must be viewed upon an examination of the substantive provisions themselves, interpreted in context and according to the defined sense of the words found therein.


case_text: In any event, as I have indicated, an obligation to make 'material' findings of fact means those findings which the decision-maker considers material, rather than factual findings which are subsequently argued were 'necessary' or 'objectively' material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [10] , [33]-[34], [68]. If there is no finding expressed on a particular question of fact, such an omission might expose a decision-maker to attack on other grounds (for example, ignoring relevant material, taking into account irrelevant considerations, misunderstanding the nature of the task), but it will not be a breach of the statutory obligation to give reasons: Yusuf at [10], [37] and [69]. 83 Therefore, the relevant question to ask here is whether Mr Smith, in the report, set out his conclusions, the reasons for the conclusions and the findings of fact which he considered material, and referred to the evidence on which those findings were based. 84 In my view, the reasons provided by Mr Smith rationally related to the evidence found during the investigation and are comprehensible in themselves. The report did set out Mr Smith's conclusions, the reasons for the conclusions and the findings of fact which he considered material, and the evidence on which these findings were based.


case_title: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475


case_title: National Companies & Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296


case_text: Telstra submitted that if the investigator was entitled to make a finding of a breach of s 17 of the Act, and if he turned his mind to the correct legal test in respect of the elements of a breach of s 17, he nevertheless failed to comply with s 53(2) of the Act, because he failed to provide reasons for concluding that s 17 had been breached. Therefore, according to Telstra, the report was 'a purported report and a nullity': see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , 388-91 at [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ.


case_text: Accepting that procedural fairness must be accorded, the respondents contended that in the making of the report under s 53 of the Act, procedural fairness was afforded to Telstra. The respondents contended that throughout the process Telstra was legally represented, and took every opportunity it could to put arguments and submissions to Mr Smith and to Comcare. It was argued by the respondents that Telstra advanced its case in correspondence from its lawyers as early as 20 December 2006. Mr Smith made it clear Telstra was free to make any submissions it considered appropriate. Further, the respondents contended that Telstra's solicitors re-stated Telstra's contentions about the matter on 16 January 2007 and 30 October 2007. The level of communication, it was said, throughout the investigation made it clear that Telstra had more than a reasonable opportunity to be heard about whether it was in breach of s 17 of the Act. There was, it was contended, no 'practical injustice' to Telstra, which is the gravaman of denial of procedural fairness: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , 13-14 at [37]. 49 I consider that Telstra's complaint of lack of procedural fairness, and the other matters raised, are properly answered by recognising the scheme of the Act.


case_title: Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396


case_text: Telstra also relied upon passages where, after referring to Boral Elevators, the Full Bench of the NSW Industrial Court in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRC 133 said: 40 On 3 September, the appellant had no employees at the site and the appellant did not enter or leave the site on that day. 41 The respondent contended that the work of the appellant continued on the site on 3 September 1998 even though he was not physically present, because his plans were still being used to construct the footings. 42 As Fisher CJ observed in respect of s 15(1) of the OH&S Act, in Inspector Clarke v W.L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 & 1213 of 1990, 30 June 1992) the phrase "at work" has temporal connotations. Similarly, in our view, in respect of the duty under s 16(1), it is necessary to determine the temporal obligations on 3 September 1998 of the appellant. The legislation does not require the appellant to ensure the product of his work, his advice, directions and drawings, were devoid of hazard. No actual work was being performed or "being done" in the conduct of his undertaking at the site. In other words, the appellant was not giving advice, giving directions, or making drawings. The OH&S Act is directed to workplaces and does not impose an obligation to ensure that the product of that work is free from hazard: Boral Elevators . Clearly, the site was the builder's place of work, but there was no evidence before his Honour of a continuance of the work of the appellant. The obligation falls upon the prosecutor to demonstrate that the elements of s 16 have been proved unless there is a clear admission which there was not in this case. 43 In Boral Elevators , Maidment J found that the obligation cast upon the defendant by s 16(1) was confined to the periods during which maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work within the sense of s 16 of the Act. 44 We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1).


case_text: I do not have before me a situation where the decision-maker had undertaken to provide an opportunity for comment prior to making an adverse decision: see, eg, Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 ; (2002) 123 FCR 23 ; and WAJH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 935.


case_text: In the case of WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 , Schmidt J rejected the contention that a gas pipeline installed by an employer, which it may need to return to for maintenance, was at all times the 'place of work' of the employer. His Honour concluded at [168]: The mere fact that part of the defendant's gas reticulation system there lay in the ground, cannot be sufficient to make it at all times the defendant's place of work. Nor could the fact that at one time, the defendant had there performed work on the pipes, thereafter make that place the defendant's place of work. If that were the test, inevitably the result would be that anywhere that the defendant had at any time ever laid pipes or other parts of its system, would always remain thereafter the defendant's place of work, with ongoing obligations under s 16 of the Act resulting. 29 His Honour considered the legislation and its objects, the Minister's Second Reading speech, and the authorities concluding at [173]: I am satisfied that the situation which here arises for consideration is akin to those dealt with by Fisher P, Peterson and Maidment JJ. It seems to me that unless the defendant is present at a particular location, doing work on its gas reticulation system, or perhaps having someone else perform such work, as for example when contractors were engaged to install the goldline pipe for the defendant, when, on the evidence it appeared also to have its own employees present at least at some times, such a pipe and the ground in which it lies, is not the defendant's place of work. Section 16 of the Act is concerned with safety, while non-employees are present at an employer's place of work. It is not concerned with ensuring that the product of such work thereafter remains free from hazard. It follows that this location was only the defendant's place of work on 10 November and not thereafter, when I have found that non-employees were exposed to the risk here in question. 34 Take also the case of AGL Gas Networks [2003] NSWIRComm 370 which is similarly distinguishable. The pipeline existed, once constructed, for the sole purpose of conveying utilities such as gas or water. Unlike a pit and pit lid, it had a purpose other than that of being a dedicated and specific workplace of a particular employer. That distinction underpins why the pipeline was not, at all times, a workplace. It was only a workplace of the construction company while under construction, and only a workplace of the particular employer engaged to undertake maintenance when the pipeline was being repaired or upgraded. No part of the pipeline was at all times a dedicated place for employees to attend for work. 35 Therefore, in the above examples, and in the operation of the Act, it may be that a particular place may not be a workplace at all times, or on all occasions, for the purposes of the Act. Nevertheless, such places become workplaces, where they otherwise are not, upon a particular activity taking place; that is, where a particular employer engages employees to undertake an employment activity, such as a lift maintenance company using its employees to repair a lift in a hotel. 36 However, as I have already indicated, this is not the situation here with Telstra, which at all times owns (and controls) the pit and pit lid, and which has created the pit and pit lid for the primary purpose of permitting its employees to carry out Telstra's activities. Just because an employee is not in attendance at any given time does not mean a place is not a 'workplace' at other times. A factory, which may at times be shut or not operating, is nevertheless a dedicated place for employees to work, and normally would at all times be considered a workplace of the particular employer who employed people at that factory.