case_text: Counsel for the Minister drew attention to Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52 at [36] (O'Connor J), Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] (Spender, O'Connor and Emmett JJ), and Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [64] - [66] (McHugh J sitting as a single justice of the High Court), in support of the contention that s 430 of the Act does not impose any duty to deal with adverse material. Counsel submitted in that regard that '[t]he significance of these authorities is that it is not open to a court to infer from the fact that evidence adverse to the findings made by a Tribunal has not been mentioned that it has not been properly considered'. 22 In Durairajasingham [2000] HCA 1 ; 168 ALR 407 at [64] - [66] , McHugh J observed as follows: '[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs , Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said : Section 430 (1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1) , for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. [65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal... . [66] In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1). ' 23 His Honour's qualifications the subject of para [65] above have a material bearing upon the somewhat unusual circumstances of this case, 'unusual' in the sense of the extent of public profile of the putative refugee and of the evidentiary basis for his fear of persecution. His Honour's observations do not provide sufficient support for the Minister's submission. As I would read the thrust of the foregoing dictum of McHugh J in Durairajasingham , his Honour's emphasis appears to be on the need for the Tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in the proceedings, which, if accepted, would be susceptible to producing an ultimate outcome different to that which was reached. Counsel for the Minister further submitted in any event that the Tribunal did have 'regard to the "material supplied by the appellant" and specifically referred to "various media reports from Sri Lanka" submitted by the appellant', and reliance was placed in that regard by the Minister upon page seven of the Tribunal member's reasons for decision, which included the following observations: '[t]he applicant also submitted other documents to the delegate, including: ... 4. Various media reports from Sri Lanka ... The delegate found that the threats that the Applicant alleged he had received were not politically-motivated and therefore not Convention related.' However, the issue remains as to adequacy or otherwise of the consideration afforded to the specific evidentiary material.


case_outcome: referred to

case_text: Counsel for the appellants referred me to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [212] , where Madgwick J found as follows, and with which I expressed substantial agreement: 'There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [58] , a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in "an active intellectual process" in relation to the letter yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.' Upon the footing of that dictum , counsel for the appellants contended that whenever the Tribunal states that it will have regard to something of significance, it must engage in an '... active intellectual process... you can't make a fleeting reference'. It was further submitted that the Tribunal erred by not considering the particular social group to which the appellant husband belonged in order to be able to properly assess the nature and extent of the appellant husband's subjective fear of persecution. That particular social group was said on behalf of the appellants to include 'a person who is professionally and visibly associated with a prominent politician who had changed parties'. 25 In relation to the appellant's reliance on NAJT [2005] FCAFC 134 ; 147 FCR 51, counsel for the Minister submitted that unlike the circumstances of the present proceedings, the Court in NAJT was there addressing a situation where the Tribunal 'was asserting in effect that [the applicant had] given nothing in support of [his] claim when in fact he had put something in support of his claim...[and] not surprisingly it was open to the Court to say...where there is a [matter] directly relevant to a critical issue of your claim, then the failure to deal with it was a jurisdictional error'. 26 For reasons apparent from what I have already pointed out or else determined, I have reached the view, after giving the issues arising at the instance of the appellants and the Minister much thought, that there is sufficient basis for the operation here of those principles adversely to the Minister's case, in the sense of failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case. The appellants' case the subject of par 1(c) of the appellants' amended notice of appeal above, does not appear to have been sufficiently addressed in the presentation of the Minister's case, at least largely for the reasons the subject of par 1(d) above. 27 The Minister's submissions upon the first and second grounds raised in the appellants' amended notice of appeal seem to me to have been somewhat too clinical in approach, and to fall short of coming adequately to issue with the nature and contextual significance of the events purportedly addressed by the Minister in that regard, being events, viewed in terms of their physical occurrence, the credibility whereof was not to my understanding the subject of dispute. 28 In relation to the third ground of appeal raised in the amended notice of appeal, counsel for the appellants submitted that the Tribunal's finding, to the effect that the threats the appellant husband received were not attributable to political reasons, was made 'in relation to the threats arising from [the] 1999 videotaping incident and not from the fact that, after appearing at the media conference on 1 May 2004... the appellant received "real threats"'. Counsel for the appellants further submitted that 'it was incumbent on the Tribunal to consider whether the appellant had a well-founded fear of persecution by reason of the 1 May 2004 media conference and after which the appellant claimed that is when the "real death threats took place" by reason of the fact that he was perceived as changing parties in concert with...the former Foreign Minister of Sri Lanka'. It was contended that jurisdictional error arose out of the Tribunal's failure to consider whether there was a real chance the appellant would be persecuted by reason of his affiliation and association with the former Foreign Minister. 29 Summarising the significance of the findings of the Tribunal, counsel for the Minister submitted that the Tribunal found the 1999 incident to have been criminally rather than politically motivated. Counsel further submitted that the 'Tribunal asked the appellant husband to elaborate on the threats he had received in 2004 and, in relation to the threat received on 1 May 2004, it transpired that what was said could not be characterised as a threat'; and that the 'Tribunal indicated that even if it accepted that he had received the death threats as he claimed, they referred back to the 1999 incident and did not have a political motive'. I have encountered considerable difficulty as to the viability of that indication on the Tribunal's part, for reasons I have already foreshadowed.


case_outcome: cited

case_text: In this case there appeared to be limited material before the Minister as to the best interests of each of the applicant's children under the age of 18. Ms Wheatley for the Minister submitted that there was no obligation on the Minister to initiate further inquiries as to information concerning the children, and indeed this point was not in contention: cf Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314, Taylor [2005] FCAFC 208 at [19] , Yalniz v Minister for Immigration and Citizenship [2007] FCA 426 at [24] . Relevant material before the Minister in relation to the applicant's case, which is also before me, included: • from the Issues Paper, information including: o the applicant has four children under the age of 18 o one child, Darryl Holani is autistic o the applicant has an order of the court dated 15 October 2003, allowing him regular contact with his children Darryl and Nikita, "at all reasonable times as may be agreed between the parties" but on no less than four days per fortnight o according to Ms Susan Amery, the mother of Joshua: "Clyde is a wonderful & loving father. Our son and he are very close. The bond they enjoy is enormous and I fear the Joshua will not be able to understand or cope with suddenly losing someone who is such a big part of his life. He look (sic) up to his father and loves him so much." o it was open to the Minister to find from the information given that the cancellation of the applicant's visa and his removal from Australia would have a detrimental effect on his younger children • a submission from the applicant wherein, inter alia , the applicant stated that: o if his visa were removed his children would suffer the consequences o he had duties towards his children o there was a very close and strong bond between himself and his children • a submission from Larni Holani in support of her father, indicating a close relationship with her father. In that letter Ms Holani made no reference to access or living arrangements except to say that her mother has raised her, as has her father (RBRD 1 p 244) • a submission from Leonard Holani, a child of the applicant over 18 years of age, dated 6 October 2006 wherein Mr Holani stated that his five brothers and sisters all relied on the applicant either financially or emotionally, and that "I believe my youngest brothers and sisters would be affected the most as they are still quite young and need a father figure in their lives as does any child" (RBRD 1 p 245) • a submission from James Gordon Wallace dated 1 October 2006 (RBRD 1 pp 248-249) wherein Mr Wallace states that, inter alia , the applicant is a doting and loving father of six children, and that, with respect to the children under 18 years, "Larni Holani, his eldest daughter, presently attends the Carina San Sisto Girls College and again Clyde Holani has paid for her schooling. Darryl Holani is autistic, attends a special school and needs the ongoing support of his father. Nakita [sic] and Joshua Holani attend a public primary school prior to receiving a private school education ostensibly to be funded by their father should he still reside in Australia." • a submission from Sqn Ldr S J Curran (Rtd) dated 25 September 2006 (RBRD 1 pp 254-255) containing the following: "His elder daughter is Larni born 2 November 1989 completes year 12 this year. Three younger children are: Darryl born 21 November 1996 Nakita [sic] born 31 March 1998 Joshua born 22 August 2000 Clyde paid for his children's education to ensure they would have a good future. The four younger children show great affection for their father. I think I recall I said in my last letter it would be heartbreaking to separate the children from their father, particularly as their biological mother shows little affection toward them. Clyde's partner Vicky Wallace has been living with him since 2000. She is very good with the young children and it is obvious that they are also very affectionate toward her." 29 Second, while it appears that there was no evidence before the Minister as to the living arrangements of Larni and Joshua, and no evidence as to access arrangements, the highest at which any assumptions of the Minister could be put was that the Minister had erred in fact, and as a general rule the Court has no jurisdiction in relation to such an error. No submissions were made that any errors were jurisdictional errors. In any event, as pointed out by Ms Wheatley, no submissions were made by the applicant through his Counsel, that the living and access arrangements in respect of Larni and Joshua were such that the Minister had clearly erred in reaching his decision. In the language of the Full Court in Taylor [2005] FCAFC 208 at [19] : If the material on those matters was sparse or absent, the circumstances were not such as to oblige the Minister to procure the expansion of that material. It was readily within the power of the appellant to have done so. (cf Djalic 139 FCR at 314)


case_text: In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration 23 The key issue in this case is whether, in making findings concerning the best interests of Larni and Joshua, the Minister has in fact given the best interests of the children "proper, genuine and realistic consideration" (Branson J in Vaitaiki 150 ALR at 631; Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [34] ). Material before the Minister 30 In my view this not a case where the interests of Larni and Joshua are "dismissed with...almost perfunctory curtness" (cf Burchett J in Vaitaiki 150 ALR at 614). Further, this is not a case where the Minister has failed to identify anywhere in his Statement of Reasons what the best interests of the children indicated that he should decide with respect to the applicant's visa (cf Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [26] - [27] ): the Minister clearly stated that the best interests of the children required that the applicant's visa not be cancelled. The only real information of relevance before the Minister concerning Larni and Joshua other than their ages concerned their close relationship with their father and the support he provided them, and this issue was clearly taken into account.


case_text: In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration


case_text: It is not in dispute that, in making his decision, the Minister was bound to take into account as a primary consideration the best interests of the children of the applicant under the age of 18. Failure to do so as a primary consideration would result in the decision of the Minister being affected by jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [57] - [58] . 12 Guidance for decision-makers in making decisions to refuse or cancel a visa under s 501(2) is found in the Minister's "Direction under section 499 - Visa Refusal and Cancellation under section 501 of the Migration Act - No 21" ("Direction No 21"). Although not binding on the Minister himself, the Minister indicated at para 5 of the Statement of Reasons that he had followed his usual practice and proceeded in accordance with Direction No 21. It is not in dispute that it is relevant for the Minister to have regard to the contents of Direction No 21 in making his decision. 13 Paragraph 2.3 of Direction No 21 states the primary considerations for the decision-maker in respect of a decision to refuse or cancel a visa: "2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."


case_text: It is not in dispute that the Minister's decision is a privative clause decision within the meaning of s 474(2) , or at least a purported privative clause decision within the meaning of s 5E. The Federal Court therefore has original jurisdiction in relation to this decision in accordance with s 476A of the Act . However, the jurisdiction of the Court is limited to the same as the jurisdiction of the High Court under para 75(v) of the Constitution (s 476A(2)). Accordingly, in this case the Court can only set aside the Minister's decision for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [8] . An error of fact which may have been made by the Minister is not reviewable by this Court unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ; NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] .


case_title: NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263


case_title: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476


case_text: In his Statement of Reasons, the Minister states that he gave primary consideration to the best interests of the children and that he gave that consideration "substantial weight". The weight given by the Minister to a relevant factor can not be the subject of judicial review: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] . However the issue of whether the Minister actually undertook the task is a matter for this Court. As noted by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392: "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was ." (emphasis added) (cf Branson J in Vaitaiki 150 ALR at 631) 24 In this case there appeared to be limited material before the Minister as to the best interests of each of the applicant's children under the age of 18. Ms Wheatley for the Minister submitted that there was no obligation on the Minister to initiate further inquiries as to information concerning the children, and indeed this point was not in contention: cf Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314, Taylor [2005] FCAFC 208 at [19] , Yalniz v Minister for Immigration and Citizenship [2007] FCA 426 at [24] . Relevant material before the Minister in relation to the applicant's case, which is also before me, included: • from the Issues Paper, information including: o the applicant has four children under the age of 18 o one child, Darryl Holani is autistic o the applicant has an order of the court dated 15 October 2003, allowing him regular contact with his children Darryl and Nikita, "at all reasonable times as may be agreed between the parties" but on no less than four days per fortnight o according to Ms Susan Amery, the mother of Joshua: "Clyde is a wonderful & loving father. Our son and he are very close. The bond they enjoy is enormous and I fear the Joshua will not be able to understand or cope with suddenly losing someone who is such a big part of his life. He look (sic) up to his father and loves him so much." o it was open to the Minister to find from the information given that the cancellation of the applicant's visa and his removal from Australia would have a detrimental effect on his younger children • a submission from the applicant wherein, inter alia , the applicant stated that: o if his visa were removed his children would suffer the consequences o he had duties towards his children o there was a very close and strong bond between himself and his children • a submission from Larni Holani in support of her father, indicating a close relationship with her father. In that letter Ms Holani made no reference to access or living arrangements except to say that her mother has raised her, as has her father (RBRD 1 p 244) • a submission from Leonard Holani, a child of the applicant over 18 years of age, dated 6 October 2006 wherein Mr Holani stated that his five brothers and sisters all relied on the applicant either financially or emotionally, and that "I believe my youngest brothers and sisters would be affected the most as they are still quite young and need a father figure in their lives as does any child" (RBRD 1 p 245) • a submission from James Gordon Wallace dated 1 October 2006 (RBRD 1 pp 248-249) wherein Mr Wallace states that, inter alia , the applicant is a doting and loving father of six children, and that, with respect to the children under 18 years, "Larni Holani, his eldest daughter, presently attends the Carina San Sisto Girls College and again Clyde Holani has paid for her schooling. Darryl Holani is autistic, attends a special school and needs the ongoing support of his father. Nakita [sic] and Joshua Holani attend a public primary school prior to receiving a private school education ostensibly to be funded by their father should he still reside in Australia." • a submission from Sqn Ldr S J Curran (Rtd) dated 25 September 2006 (RBRD 1 pp 254-255) containing the following: "His elder daughter is Larni born 2 November 1989 completes year 12 this year. Three younger children are: Darryl born 21 November 1996 Nakita [sic] born 31 March 1998 Joshua born 22 August 2000 Clyde paid for his children's education to ensure they would have a good future. The four younger children show great affection for their father. I think I recall I said in my last letter it would be heartbreaking to separate the children from their father, particularly as their biological mother shows little affection toward them. Clyde's partner Vicky Wallace has been living with him since 2000. She is very good with the young children and it is obvious that they are also very affectionate toward her." 29 Second, while it appears that there was no evidence before the Minister as to the living arrangements of Larni and Joshua, and no evidence as to access arrangements, the highest at which any assumptions of the Minister could be put was that the Minister had erred in fact, and as a general rule the Court has no jurisdiction in relation to such an error. No submissions were made that any errors were jurisdictional errors. In any event, as pointed out by Ms Wheatley, no submissions were made by the applicant through his Counsel, that the living and access arrangements in respect of Larni and Joshua were such that the Minister had clearly erred in reaching his decision. In the language of the Full Court in Taylor [2005] FCAFC 208 at [19] : If the material on those matters was sparse or absent, the circumstances were not such as to oblige the Minister to procure the expansion of that material. It was readily within the power of the appellant to have done so. (cf Djalic 139 FCR at 314)


case_title: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172


case_text: In his Statement of Reasons, the Minister states that he gave primary consideration to the best interests of the children and that he gave that consideration "substantial weight". The weight given by the Minister to a relevant factor can not be the subject of judicial review: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] . However the issue of whether the Minister actually undertook the task is a matter for this Court. As noted by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392: "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was ." (emphasis added) (cf Branson J in Vaitaiki 150 ALR at 631)


case_text: In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration 22 In his Statement of Reasons, the Minister states that he gave primary consideration to the best interests of the children and that he gave that consideration "substantial weight". The weight given by the Minister to a relevant factor can not be the subject of judicial review: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] . However the issue of whether the Minister actually undertook the task is a matter for this Court. As noted by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392: "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was ." (emphasis added) (cf Branson J in Vaitaiki 150 ALR at 631) 23 The key issue in this case is whether, in making findings concerning the best interests of Larni and Joshua, the Minister has in fact given the best interests of the children "proper, genuine and realistic consideration" (Branson J in Vaitaiki 150 ALR at 631; Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [34] ). Material before the Minister 30 In my view this not a case where the interests of Larni and Joshua are "dismissed with...almost perfunctory curtness" (cf Burchett J in Vaitaiki 150 ALR at 614). Further, this is not a case where the Minister has failed to identify anywhere in his Statement of Reasons what the best interests of the children indicated that he should decide with respect to the applicant's visa (cf Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [26] - [27] ): the Minister clearly stated that the best interests of the children required that the applicant's visa not be cancelled. The only real information of relevance before the Minister concerning Larni and Joshua other than their ages concerned their close relationship with their father and the support he provided them, and this issue was clearly taken into account.


case_text: In this case there appeared to be limited material before the Minister as to the best interests of each of the applicant's children under the age of 18. Ms Wheatley for the Minister submitted that there was no obligation on the Minister to initiate further inquiries as to information concerning the children, and indeed this point was not in contention: cf Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314, Taylor [2005] FCAFC 208 at [19] , Yalniz v Minister for Immigration and Citizenship [2007] FCA 426 at [24] . Relevant material before the Minister in relation to the applicant's case, which is also before me, included: • from the Issues Paper, information including: o the applicant has four children under the age of 18 o one child, Darryl Holani is autistic o the applicant has an order of the court dated 15 October 2003, allowing him regular contact with his children Darryl and Nikita, "at all reasonable times as may be agreed between the parties" but on no less than four days per fortnight o according to Ms Susan Amery, the mother of Joshua: "Clyde is a wonderful & loving father. Our son and he are very close. The bond they enjoy is enormous and I fear the Joshua will not be able to understand or cope with suddenly losing someone who is such a big part of his life. He look (sic) up to his father and loves him so much." o it was open to the Minister to find from the information given that the cancellation of the applicant's visa and his removal from Australia would have a detrimental effect on his younger children • a submission from the applicant wherein, inter alia , the applicant stated that: o if his visa were removed his children would suffer the consequences o he had duties towards his children o there was a very close and strong bond between himself and his children • a submission from Larni Holani in support of her father, indicating a close relationship with her father. In that letter Ms Holani made no reference to access or living arrangements except to say that her mother has raised her, as has her father (RBRD 1 p 244) • a submission from Leonard Holani, a child of the applicant over 18 years of age, dated 6 October 2006 wherein Mr Holani stated that his five brothers and sisters all relied on the applicant either financially or emotionally, and that "I believe my youngest brothers and sisters would be affected the most as they are still quite young and need a father figure in their lives as does any child" (RBRD 1 p 245) • a submission from James Gordon Wallace dated 1 October 2006 (RBRD 1 pp 248-249) wherein Mr Wallace states that, inter alia , the applicant is a doting and loving father of six children, and that, with respect to the children under 18 years, "Larni Holani, his eldest daughter, presently attends the Carina San Sisto Girls College and again Clyde Holani has paid for her schooling. Darryl Holani is autistic, attends a special school and needs the ongoing support of his father. Nakita [sic] and Joshua Holani attend a public primary school prior to receiving a private school education ostensibly to be funded by their father should he still reside in Australia." • a submission from Sqn Ldr S J Curran (Rtd) dated 25 September 2006 (RBRD 1 pp 254-255) containing the following: "His elder daughter is Larni born 2 November 1989 completes year 12 this year. Three younger children are: Darryl born 21 November 1996 Nakita [sic] born 31 March 1998 Joshua born 22 August 2000 Clyde paid for his children's education to ensure they would have a good future. The four younger children show great affection for their father. I think I recall I said in my last letter it would be heartbreaking to separate the children from their father, particularly as their biological mother shows little affection toward them. Clyde's partner Vicky Wallace has been living with him since 2000. She is very good with the young children and it is obvious that they are also very affectionate toward her."


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.


case_text: Statutory Demand Proceeding and the Summary Dismissal Motion were listed for hearing on 1 June 2009 on which date I ordered that the Statutory Demand Proceeding be dismissed and that BCPL pay Mr Carroll's costs of that Proceeding: see Benson Communications Pty Limited v Carroll [2009] FCA 632. The hearing therefore continued on the basis that it was only the Summary Dismissal Motion that was to be dealt with. The claims made in the ASC Against this background, the material facts as alleged in the ASC can be summarised. I will use abbreviated forms of reference in the ASC. Numerals in bold in square brackets are references to paragraphs so numbered in the ASC.


case_title: Benson v Carroll [2008] FCA 1729

case_text: 6 November 2008, I dealt with the motion brought by the applicants in this proceeding to set aside the order of dismissal of 23 April 2008, and ordered that the order of dismissal be set aside: see Benson v Carroll [2008] FCA 1729. On 26 May 2009, Mr Carroll as respondent in the Statutory Demand Proceeding filed a notice of motion seeking an order that the Statutory Demand Proceeding be heard concurrently with the present Summary Dismissal Motion.


case_outcome: followed

case_text: applicants rely on Gordon v Gibbons (1873) 12 SCR (NSW)(L) 40. That case concerned an unincorporated mining company formed under a deed of settlement. In accordance with the terms of the deed, the directors sued a member for calls. It was held (by majority) that the action did not lie because any recovery would be partnership property and the defendant was a member of the partnership. The Court distinguished a claim for damages or money which, when recovered, would be the plaintiff's own property. This case lends support to the applicants. The damages that they seek to recover would not be partnership property but would be their own property (in the case of BCPL, as trustee for the Grantham Project (Trust), but that is beside the point). For the above reasons, the respondents' motion for summary dismissal should be dismissed with costs. The proceeding will be listed for the making of directions. I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 11 November 2009 Counsel for the Applicants: Mr R W Evans Solicitor for the Applicants: McKells Solicitors Counsel for the Respondents: Mr K G Oliver Solicitor for the Respondents: Kemp Strang Date of Hearing: 1, 5 June 2009 Date of Judgment: 28 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1217.html


case_text: summary, the respondents submit, first, that the claims or some of the claims made in this proceeding could only have been made in the Supreme Court Proceeding, and, second, that the subject matter of this proceeding properly belonged to the Supreme Court Proceeding so that the applicants are precluded from pursuing this proceeding by reason of the principle commonly associated with Henderson v Henderson [1843] EngR 917 ; (1843) 3 Hare 100 (67 ER 313) and Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ( Anshun ). In Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3 rd ed, Butterworths, 1996) the learned authors state (at [452]): There is no doubt that the Henderson principle and the Kilbrandon test (a reference to Lord Kilbrandon's remarks in delivering the judgment of the Privy Council in Yat Tung Investment Co. Ltd. v Dao Heng Bank Ltd. [1975] AC 581) apply with full rigour to proceedings for an account. A simple account may be taken at the trial, and where this occurs, the nature of the proceedings may be obscured. A judicial account involves the offsetting of credit items on both sides to reach a balance in favour of one party. The result can only be final if all relevant claims and cross-claims are either brought forward for adjudication or treated as abandoned. Again, this passage leaves open the question what are "all relevant claims and cross-claims". Clearly, it would not be open to a partner to advance a later claim to recover property that had been treated as partnership property in the taking of accounts or to contend in a later proceeding that the partners' "loan accounts" in the partnership books, on the basis of which the partnership accounts had been taken, were otherwise than what they had been treated as being in the taking of those accounts. The claims for unliquidated damages made by the applicants outside the scope of the partnership are of a different kind.


case_outcome: discussed

case_text: summary, the respondents submit, first, that the claims or some of the claims made in this proceeding could only have been made in the Supreme Court Proceeding, and, second, that the subject matter of this proceeding properly belonged to the Supreme Court Proceeding so that the applicants are precluded from pursuing this proceeding by reason of the principle commonly associated with Henderson v Henderson [1843] EngR 917 ; (1843) 3 Hare 100 (67 ER 313) and Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ( Anshun ). As noted earlier, the respondents submit that some of the claims made by the applicants in this proceeding could only have been asserted in a taking of partnership accounts. The respondents have not, however, adequately identified the claims said to be of that kind. The respondents accept that there are other claims made by the applicants in this proceeding that could not have been addressed as part of a taking of partnership accounts, and submit that those claims should have been advanced by cross-claim in the Supreme Court Proceeding in accordance with what I shall describe as "the Anshun principle". The respondents submit that the claims of the second kind are so intertwined with those of the first kind that both kinds should have been dealt with in the Supreme Court Proceeding. In my opinion, the respondents' submissions gloss over many difficulties. In the first place, as noted earlier, there were two partnerships. There was the partnership between BCPL as trustee and HCPPL as trustee constituted by the MoU dated 25 November 2004 (the Earlier Partnership) and in the second place, at least according to Mr Carroll and apparently accepted in the Supreme Court Proceeding by BCPL, there was a partnership between Mr Carroll and BCPL from 30 September 2005 down to the time of the termination or dissolution of that partnership, whenever that was (the Later Partnership). I turn now to Anshun . According to Anshun , the question to be asked in Australia in relation to the respondents' second ground of attack is not whether the claims advanced in the later proceeding "could" more conveniently have been advanced in the earlier proceeding. The test is not whether it would have been more efficient and less wasteful, in terms of judicial and other resources, if the issues in the later proceeding had been made the subject of the earlier proceeding. Anshun itself was a case of inconsistency between the determination of the earlier proceeding and the making of a claim in the later proceeding a circumstance that does not attend the present case. In Anshun , a workman was injured in the course of his employment when a load of girders handled by a crane being used by Anshun Pty Ltd (Anshun) and hired from the Port of Melbourne Authority (Authority) struck him. Under the crane hiring agreement, the Authority enjoyed an indemnity by Anshun in relation to any injury arising directly or indirectly out of the use of the crane during the hiring period. The workman sued the Authority and Anshun. They claimed contribution from each other. The Authority's contribution notice, however, did not claim the indemnity. In the earlier proceeding, judgment was entered in the action against both defendants with costs, and it was ordered that Anshun should recover from the Authority contribution to the extent of 90% and the Authority from Anshun to the extent of 10% of those damages and costs. In the later proceeding, the Authority sued Anshun under the indemnity agreement to recover the amounts that the Authority had paid as damages and interest and for legal costs and disbursements. The primary Judge ordered that the Authority's proceeding be perpetually stayed on the ground that the Authority should have pleaded the indemnity in the earlier litigation. It will be seen that the determination of the cross-claims in the earlier proceeding decided the question of the extent of the liabilities inter se of Anshun and the Authority. It would be inconsistent with that determination for the Authority to be held entitled to recover 100% in the later proceeding. As Gibbs CJ, Mason and Aickin JJ noted, in the later proceeding the Authority asserted a right inconsistent with the right asserted in the earlier proceeding. The circumstances and issues in Anshun are far removed from those of the present case. In Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 , Brennan and Dawson JJ stated (at 345) that it may be that Anshun is a case of mere issue estoppel. Pertinently for the present case, their Honours said (at 346): A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings ( Duedu v Yiboe [[1961] 1 W.L.R. 1040, at p.1046] cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v. Anshun Pty. Ltd. as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp. 599-601. That is not the present case. [My emphasis] The passage emphasised is applicable to the circumstances of the present case. Like Anshun , the case raised an issue of inconsistency. Whether the farm was or was not partnership property lay at the heart of the Master's inquiry and must be taken to have been determined by the Master's certificate.


case_outcome: distinguished

case_title: Public Trustee v Kenward [1967] 1 WLR 1062

case_text: Trustee v Kenward [1967] 1 WLR 1062 was also a case of the taking of partnership accounts. The plaintiff was judicial trustee of a deceased's estate. He sued the defendant for the balance found due by the defendant to the estate on an account and inquiry taken in earlier administration proceedings to which the defendant was a party. The defendant had not challenged the Master's certificate in that proceeding. The enquiry before the Master had related to a farming business carried on by the defendant in partnership with the deceased, in whom the farm was vested, and no evidence was adduced before the Master to suggest that the land was not the sole property of the deceased. On the plaintiff's application for summary judgment, the defendant sought leave to defend on the ground that he had a valid counterclaim for a share in the proceeds of sale of the farm land and the income thereof since the deceased's death and for the cost of certain improvements, on the basis that the land was an asset of the partnership. He offered an explanation of his failure to raise this point before the Master on the taking of partnership accounts. Buckley J held that the defendant was estopped by the Master's certificate from setting up the claim that the land was a partnership asset, since an allegation that it was would have been germane to the accounts and enquiry before the Master, which was directed to determining finally what sum the defendant should pay to the estate. At 1067C, His Lordship stated: I think the question in the present case must be whether it is right to regard the claim which the defendant now wants to raise as something which properly belonged to the subject-matter of the account and inquiry directed by the order of March 21, 1962. If it were a matter which can be said properly to have belonged to that investigation of the relative rights of the defendant and testatrix's estate, then the fact that the defendant, whether it be by inadvertence or accident or as the result of his being unwisely advised or lacking advice, did not raise the point on any of those grounds would be no justification for allowing him to raise it now.


case_text: present case has some similarity to Sheaffe v Hungerford (1879) 1 QLJ (Supp) 51. In that case the plaintiff and the defendant agreed to enter into a partnership to form and carry on the business of a cattle station. The plaintiff was to provide the grazing country; the defendant 5200 head of cattle by instalments. After supplying some of the cattle, the defendant refused to supply any more. The plaintiff sought: (1) that the parties' rights and interests under the partnership agreement might be defined; (2) damages for breach of the agreement consisting of the defendant's failure to send the cattle; (3) a dissolution of the partnership if any had been created. Lilley CJ said (at 53) in relation to the claim for damages: The action is substantially for damages, and under the old system the defendant would be entitled to a verdict. But the plaintiff has asked that the suit may be treated as one for the administration of the partnership affairs, and for a dissolution. There are in my opinion sufficient grounds to grant this application, but I need not state them as the defendant does not oppose a decree on this point." In view of the consent and the absence of reasons on the point, the case is weak or no authority for the proposition that a claim for damages by one partner against another can, let alone should, be dealt with in a suit for the taking of partnership accounts. In any event, the claim for damages was one between the partners alone and was for breach or repudiation of the partnership agreement itself. The complexities to which I have already referred show that the circumstances of the present case are far removed from those in Sheaffe v Hungerford .


case_text: Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 , Brennan and Dawson JJ stated (at 345) that it may be that Anshun is a case of mere issue estoppel. Pertinently for the present case, their Honours said (at 346): A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings ( Duedu v Yiboe [[1961] 1 W.L.R. 1040, at p.1046] cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v. Anshun Pty. Ltd. as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp. 599-601. That is not the present case. [My emphasis] The passage emphasised is applicable to the circumstances of the present case.


case_text: The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one." 21 However, it is well established that it will be insufficient for an applicant to demonstrate that persecution is feared solely by reason of some act that a person has done, or is perceived to have done: Morato v Minister for Immigration, Local Government and Ethic Affairs (1992) 111 ALR 417, 420 per Black CJ (with whom French J agreed). The primary focus must be upon what someone is rather than what they have done. This, according to Black CJ, "tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character": (ibid.) It is not permissible to define a "particular social group" by reference to the act that gave rise to the fear of persecution: Applicant A per Dawson (at 243), McHugh (at 263) and Gummow JJ (at 264). 23 While it is vital to accurately identify the "particular social group" ( Applicant A at 401), it is often quite difficult to do so. These difficulties have lead applicants and tribunals into error. In Dranichnikov , the Tribunal defined the group as "businessmen in Russia." It concluded that membership of that group did not give rise to a validly held fear of persecution and so held against the applicant. The High Court explained that the correct social group, as the applicant had eventually argued, was "businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals."


case_text: Furthermore, a group will not be a particular social group within the meaning of the Convention if the only characteristic members have in common is a fear of persecution: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387, 400 per Gleeson CJ, Gummow and Kirby JJ.


case_text: Similarly, in Balbin v Minister for Immigration and Multicultural Affairs (Lindgren J, 7 December 1998, unreported), where the applicant claimed to fear persecution due to her exposure of corruption within the public service of the Philippines, Lindgren J held that the Tribunal had not erred in finding that the applicant's fears were due to her particular individual acts against the corrupt men rather than her membership of a group of "whistleblowers."


case_title: Canada v Ward [1993] 2 SCR 689

case_text: In Canada v Ward [1993] 2 SCR 689, the applicant was a member of the INLA, a para-military terrorist group committed to the unification of Ulster and the Republic of Ireland. As his first task with the INLA, the applicant was required to guard a group of innocent hostages. On learning that the hostages were to be executed, the applicant allowed them to escape without disclosing himself to his superiors. However, they subsequently learned of his disloyalty and he was captured and tortured. He escaped and fled to Canada with the assistance of the British authorities. His application for refugee status in Canada was partly founded on his membership of a particular social group. However, for a reason that is not clear from the decision, the particular social group pleaded was "members of the INLA" rather than "former members of the INLA who had betrayed the group in order to save innocent lives." The Court concluded (at 744) that "no subsequent disassociation from this group ... had any impact on his fear" and that, therefore, it was not appropriate to say that his "fear was based on his status as a former member of the INLA. The fact that Ward might no longer be a member is merely a result of the persecution feared, not its foundation". This reasoning is difficult. It is not clear whether the Court regarded the group under consideration as being "current INLA members" or "current and former members" and, if it included former members, how the applicant could subsequently disassociate himself from the group. If the group were defined as "former members who had betrayed the group" the Court's reasoning would lose much of its force. 26 In Ward , the Supreme Court of Canada did not need to address the question of whether the applicant belonged to a particular social group within the meaning of the Convention. The final paragraph on this ground of appeal is as follows (at 745): "Moreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation."


case_text: In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, 394 (per Gummow and Callinan JJ, Hayne J agreeing at 408, Kirby J to similar effect at 402-404), the High Court set out a series of steps that the Tribunal must follow when determining whether an applicant fell within the Convention definition of refugee (Article 1A(2)) by reason of a well-founded fear of persecution due to membership of a particular social group: "First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason." 15 The appellant claimed to have a well-founded fear of persecution by reason of membership of a group described as "journalists or politically-active citizens (such as members of non-ruling parties, including the SNPU) who are prepared to expose corruption." As I have already mentioned, the Tribunal found that the appellant was neither a journalist nor a member of the SNPU. The only way that the appellant could fall within the group to which he claimed to belong was by his involvement in the exposure of the oil racket. 16 However, the Tribunal held that these circumstances do "not relate to the Convention." It found: "The criminals' desire for revenge is not motivated by anything other than what [the appellant] has done. It is not because of any political opinion, for example. The Tribunal has asked itself whether the Convention motivation of 'particular social group' may have come into play, but has concluded that it has not. The [appellant] has not claimed, for example, that all employees or all 'inspectors' of the 'Lviv Committee of Citizen Rights Protection" are being targeted by criminals. Not is he claiming that those criminals are targeting any wider hypothetical social group such as 'people exposing criminal actions' or 'people exposing corruption.' Rather, it is clear that the revenge the applicant fears is directed specifically at him because of his actions in uncovering their criminal activities. It is therefore not necessary to deal with the question of whether or not such hypothetical groups exist in Ukraine as 'particular social groups' within the meaning of the Convention." 17 This passage makes clear that the Tribunal considered that the issue of whether the appellant belonged to a particular social group for the purposes of the Convention did not arise because the reason for the appellant's fear of persecution was not related to membership of a particular social group. That is, the Tribunal considered that even if the appellant did belong to a particular social group within the meaning of the Convention, membership of that group is not the reason for his fear of persecution. Accordingly, the Tribunal concluded that it was unnecessary to follow the steps set out in Dranichnikov. 18 The appellant contended before this court that this was an impermissible line of reasoning. He argued that the steps set out in Dranichnikov must be followed even if the Tribunal is of the view that the applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there was a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. 19 That question was whether the membership of a particular social group is the essential and significant reason (s 91 R(1)(a) of the Act) for the appellant's fear of persecution. The Tribunal answered that question in the negative, holding that "the revenge the [appellant] fears is directed specifically at him because of his actions in uncovering their criminal activities." 23 While it is vital to accurately identify the "particular social group" ( Applicant A at 401), it is often quite difficult to do so. These difficulties have lead applicants and tribunals into error. In Dranichnikov , the Tribunal defined the group as "businessmen in Russia." It concluded that membership of that group did not give rise to a validly held fear of persecution and so held against the applicant. The High Court explained that the correct social group, as the applicant had eventually argued, was "businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals." 25 It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise. 29 This is the same reasoning as employed by the Tribunal in this case. It held that the appellant's fear is based on his individual action and not on his affiliation with any particular group. Having made that finding, there was no need to address the test set out in Dranichnikov . For this reason, the appeal fails on this ground also. 30 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 28 November 2006 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr E Heerey Solicitor for the First Respondent: Clayton Utz Date of Hearing: 9 November 2006 Date of Judgment: 28 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1632.html


case_text: The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one." 21 However, it is well established that it will be insufficient for an applicant to demonstrate that persecution is feared solely by reason of some act that a person has done, or is perceived to have done: Morato v Minister for Immigration, Local Government and Ethic Affairs (1992) 111 ALR 417, 420 per Black CJ (with whom French J agreed). The primary focus must be upon what someone is rather than what they have done. This, according to Black CJ, "tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character": (ibid.) It is not permissible to define a "particular social group" by reference to the act that gave rise to the fear of persecution: Applicant A per Dawson (at 243), McHugh (at 263) and Gummow JJ (at 264).


case_text: Further, in SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1286 , where the applicants (husband and wife) claimed to fear persecution due to being participants in a "mixed marriage", Edmonds J held that "[e]ven assuming that the groups postulated ... are particular social groups within the meaning of the Convention, and further assuming that the appellants are members of one or both of these groups, their membership of one or both of these groups is not the essential and significant reason (s 91R(1)(a) of the Act) they fear persecution..."


case_text: It has been held in several cases that the exposure of corruption can lead to the imputation of a political opinion: C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366; Klinko v Canada (2000) 184 DLR (4 th ) 14; Guzman v Minister of Citizenship & Immigration (1999) 93 ACWS (3d) 733; Berrueta v Minister for Citizenship & Immigration (1996) 109 FTR 159; Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000). In Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670 , Merkel J reviewed these authorities and said (at [33] [34]): "It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than any form of opposition to, or defiance of, state authority or governance. A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution...In each case the question of whether the nexus has been established is a question of fact for the RRT." 11 The Tribunal, in deciding that no perception of the appellant having a political opinion within the meaning of the Convention would have arisen as a result of his actions, was making a finding of fact. The Tribunal made clear that it considered whether the appellant's activities would have given rise to such an imputation and concluded that they would not. This conclusion was open to the Tribunal and there is no reason to disturb it. The fact that the activities were undertaken as part of the appellant's employment was clearly an important factor in the Tribunal's reasoning but there is no indication, nor any reason to infer, that the Tribunal considered that this precluded an imputation of political opinion. The use of the words "in this instance" in the final sentence of the passage quoted above confirms this view. 12 For these reasons, the appeal on the ground of "imputed political opinion" fails. 20 The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one."


case_text: The two most recent decisions in this Court, Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 and Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 , indicate that any legal professional privilege in the statement is lost when the document is filed.


case_title: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88


case_text: In Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 33, Mason CJ said after referring to the implied undertaking as to discovery: It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. 22 Whilst those documents are subject to the implied undertaking referred to in O 24 r 14A of the Hong Kong Rules, in my opinion, consistent with the decisions in Esso Australia Resources Limited v Plowman [1995] HCA 19 ; 183 CLR 10 and Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 , the applicant should make production of those documents in this jurisdiction. No doubt the applicant will, at or before making production, apply to the High Court of Hong Kong for a release from the implied undertaking in relation to those documents. I should say that the defendants in the Hong Kong proceedings have indicated they have no objection to the documents being produced.


case_text: That rule states the rule in Harman v Home Department State Secretary [1983] 1 AC 280. Mr Robertson said that his client was unable to produce the document, which it has discovered, by reason of that rule. It seems to me that there are two answers to that proposition. The first is that whilst, of course, the implied undertaking in relation to discovery binds a party, it does not prevent a party making discovery under obligations of other rules of court.


case_title: Mulley v Manifold (1959) 163 CLR 341

case_text: There are two answers given by the applicant in response to this aspect of the application. First, it is contended the respondent has failed to identify any documents which it says the applicant has failed to discover. Secondly, the applicant contends it has not been shown that any of that correspondence would be relevant in relation to any of the issues raised on the pleadings in this proceeding. I want to make it clear that whilst many of the rules relating to discovery have changed over the recent past it is still a requirement of discovery that the document which is sought to be discovered is relevant to an issue raised on the pleadings in the sense described by the High Court in Mulley v Manifold (1959) 163 CLR 341. Attempts have been made today to show that there might be evidence which would indicate that some correspondence could be relevant to this proceeding. That, in my opinion, is not an appropriate way of addressing the question of discovery and, in particular, in addressing a question of discovery so late in the proceeding and so shortly before trial. 9 It seems to me, if the respondent wishes to identify documents which it says ought to have been discovered, it must be able to do so precisely by reference to the pleadings and by reference to the document which it says ought to be discovered. In other words, it ought to be able to discharge the obligation which lies upon a party seeking further and better discovery. In my opinion, the respondent has failed to do so in respect of this category of documents and for that reason alone I would decline to make the order sought. However, I am also not persuaded, at this stage, that any of the documents sought are relevant in the sense to which I have referred. 10 The second category of documents has three groups of documents within it. First, it contains a witness statement given by a director of the applicant; and secondly, it lists a witness statement given by a defendant in the Hong Kong proceedings. Both of those documents were filed in the proceedings in Hong Kong. The third group of documents, within this larger category, are documents which were discovered by the defendants in the Hong Kong proceedings.


case_text: Chief Justice Mason's dicta was applied by Tamberlin J in Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [15] to [21]. The point which the Chief Justice made and which was applied in Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 is that, notwithstanding the implied undertaking, if rules of court of a jurisdiction apply to a party who has a document in that party's possession by reason of a process in another jurisdiction, that party is still obliged to comply with the processes in the second jurisdiction and make discovery of the document if it be an application for discovery and production if production follows upon discovery. For that reason, in my opinion, the document should be produced. 21 Secondly, there has been no suggestion made by the applicant that the applicant could not obtain a release from the implied undertaking in the High Court of Hong Kong. Indeed, the applicant has sought and obtained a release in relation to other documents. I infer from the fact that such a release has been obtained, that the applicant could obtain a release in relation to the implied undertaking in respect of the witness statement of Cheng Chun Keung. The same applies to the documents discovered by the defendants in the Hong Kong proceedings which are presently in the possession, custody or control of the applicant. The applicant has discovered those documents and the respondent seeks production of them. 22 Whilst those documents are subject to the implied undertaking referred to in O 24 r 14A of the Hong Kong Rules, in my opinion, consistent with the decisions in Esso Australia Resources Limited v Plowman [1995] HCA 19 ; 183 CLR 10 and Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 , the applicant should make production of those documents in this jurisdiction. No doubt the applicant will, at or before making production, apply to the High Court of Hong Kong for a release from the implied undertaking in relation to those documents. I should say that the defendants in the Hong Kong proceedings have indicated they have no objection to the documents being produced.


case_text: As to the alleged "harsh approach" it is useful to recall, in my opinion, observations made by Gummow J in Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 651, para 130: The "jurisdictional fact" upon the presence of which jurisdiction is conditioned, need not be a "fact" in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase "jurisdictional fact" is an awkward one in such circumstances it will, for convenience be retained in what follows. In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were "satisfied" that the prosecutor answered the description in section 36(2).


case_text: His Honour is there referring to particular sections in the Migration Act 1958 which remain pertinent. Later in that same case, having referred with approval to observations made by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 as to ways in which satisfaction-based decisions might be amenable to judicial review, Gummow J observed at page 654, para 137: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 12 Those remarks seem to me to be apposite in the circumstances of this case. There were findings of fact, in part, based on questions of credibility. They seem to me to be findings that were reasonably open. That is not to say that another person hearing that same evidence might not have come to a different view. Whilst I can well understand that the Appellant might regard the findings made as indicative of a "harsh approach," in terms of legal principle, if those findings were reasonably open, it was incumbent on the part of the Federal Magistrate and is incumbent upon me to respect those findings and not interfere with them. 13 Ground 2 in the notice of appeal appears to conflate what might be described as a shorthand description of a test which informs an assessment as to whether a fear of persecution for a Convention reason is "well-founded," with a standard of proof that applies in civil proceedings in a court. The Tribunal though was not a court, but rather part of the Executive Government of the Commonwealth charged with reviewing on the merits a decision of another official of the Executive Government, namely the Minister's delegate. 14 In that review and in relation to the engendering of the "satisfaction" for which the statute made provision, it was obviously in the interest of a visa applicant to introduce material, which would engender the requisite "satisfaction." In this case, as it happened, the male Appellant, who was the person who gave evidence before the Tribunal, did not engender through that evidence the requisite satisfaction. That, though, as I have said, was a product of credibility findings that were in my opinion, reasonably open for reasons that were not irrational or illogical on the part of the Tribunal. 15 What followed from the findings of fact that the Tribunal came to make, was an absence of satisfaction that the persecution claimed by the Appellants was for a Convention reason. The consequential finding that there was no entitlement to a protection visa flowed automatically from this finding of a lack of satisfaction. 16 Ground 3 in the notice of appeal alleges that the Tribunal used particular information without affording opportunity to comment, contrary to s 424A of the Migration Act . As was pointed out on behalf of the Minister in submissions, an immediate difficulty with this ground, which was not cured in oral submissions on behalf of the Appellants, was an absence of particularisation of just what the "information" used by the Tribunal was.


case_text: In oral submissions in respect of this ground, the male Appellant referred to a finding on the part of the Tribunal to allow him to identify his fear. That though did not amount to a particularisation of the "information" which ought to have been put to him and his wife. In dealing with s 424A , the learned Federal Magistrate made reference to what was said by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 18. It was there observed that "information": "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc". 18 Regard to that passage and to the Tribunal's reasons shows that there was no occasion for the Tribunal before making its decision to send to the Appellants a notice identifying information so as to comply with s 424A. 19 There were other grounds advanced in oral submissions. Reference was made to confusion on the part of the male Appellant in the proceeding before the Tribunal and to translation difficulties. As the Federal Magistrate rightly apprehended s 427 of the Migration Act required the Tribunal to provide an interpreter when a visa applicant was unable to give evidence without one. The learned Magistrate at para 32 of his reasons cites authority pertinent in that regard. His Honour also appreciated that an absence of adequate interpretation of proceedings might yield a violation of s 425 of the Migration Act in that the hearing conducted by the Tribunal would not be "real and meaningful." Again, at para 32 of his Honour's reasons, pertinent authority for this proposition is cited. 20 As the learned Magistrate rightly apprehended however, to make out such a challenge very particular evidence is needed. None was offered by the Appellants in the proceedings before the Federal Magistrate. And there was nothing before me which would in any way have engendered a consideration of whether fresh evidence on such a subject could, or should, be allowed to be advanced on the hearing of the appeal. 21 There was also reference before me and it seems before the Federal Magistrate, to the nature of the hearing opportunity which was extended to the Appellants by the Tribunal. That opportunity in the end took the form of a hearing via video link from the police station at Griffith. That opportunity had been extended by the Tribunal after the male Appellant had signified to the Tribunal a difficulty based on illness in attending in person at Sydney. The appeal book contains in it a note by an officer of the Tribunal prior to the video link hearing to ask whether the male Appellant was attending the hearing tomorrow. According to the note he confirmed that he would be attending. There is nothing in that note, or in the Tribunal's reasons, to indicate that either when that contact was made, or at the hearing itself, any difficulty in relation to the Appellant's wife's attendance based on a fear of being present at a police station was put forward. Nor, it should be stated, is there any reference in the Tribunal's reasons of any complaint being voiced about the quality of interpretation which was offered at the hearing. Instead, in terms of evidence, one is left to look to the Tribunal's reasons, which do not on their face disclose any difficulty being noted either in respect of the attendance of the female Appellant or in translation. Section 425 of the Migration Act certainly requires when it is sought the extension to a visa applicant of a real and meaningful hearing. On the evidence, and I emphasise on the evidence, this is what the Tribunal did in this case. 22 In short then, whether one approaches this matter by reference to the formal grounds of appeal or other matters of complaint which emerged in the course of oral and written submissions on behalf of the Appellants, there is no merit in the challenge made to the decision of the Federal Magistrates Court. The appeal must therefore be dismissed. 23 The orders that I make formally are: 1. The appeal is dismissed. 2. The Appellants are to pay the First Respondent's costs of and incidental to the appeal which are fixed in the amount of $2300. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 August 2008 Counsel for the Appellants: The Appellant appeared in person Solicitor for the Respondents: Sparke Helmore Date of Hearing: 6 August 2008 Date of Judgment: 6 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1203.html


case_outcome: applied

case_text: In my opinion the litigation raised important and difficult fiscal issues in particular on the construction of the legislation, and I am unable to acknowledge the Commissioner's characterisation of the litigation as 'very much private litigation and not litigation in the public interest'. Evidence was tendered as to the existence of at least 100 foreign tour operators potentially affected by the outcome to the proceedings. Some juridical support in principle for SAGA's contention as to the order for costs sought by SAGA may be found in the following authorities to which my attention has been drawn: (i) Commissioner of Taxation v B & G Plant Hire Pty Ltd (1994) 123 ALR 699 at 709 per Gummow J. (ii) Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282 at [125] per Ipp JA (with whom Spigelman CJ and Handley JA agreed). (iii) Rohner v Scanlan (1998) 86 FCR 454 per Drummond, Kiefel and Finkelstein JJ.


case_title: Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282


case_title: Rohner v Scanlan (1998) 86 FCR 454


case_text: The principle to be applied in applications such as this was succinctly stated by Santow J in Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 at 234. His Honour observed that the correct balance is struck by permitting a liquidator to act as such even if there be a prior involvement with the company in liquidation, provided that involvement is not likely to impede or inhibit the liquidator from acting impartially. His Honour said that, in short, the question should be whether there would be a reasonable apprehension by any creditor of lack of impartiality on the liquidator's part in the circumstances by reason of prior association with the company or those associated with it, including creditors or, indeed, any other circumstance. 10 I do not need to determine whether it is necessary to strike such a balance or how that balance ought to be struck in the present case. There is, I think, insufficient evidence before me to suggest that there may be any lack of impartiality on the liquidator's part, but the fact which, points toward the course that I have indicated is the failure of the previous liquidators to respond to the letter of 22 May 2008. There can be no suggestion of any want of impartiality, but the failure of the previous liquidators to respond to the letter or to appear before me this morning, I think, impels the adoption of the course proposed by Young J. 11 I have been provided with short minutes of order which provide for reinstatement and for the removal of the previous liquidators with a new liquidator, Mr Steven Wesley Hathaway, to be appointed as liquidator of the company. I have in evidence before me a letter from ASIC dated 13 June 2008. The letter states that ASIC will not oppose the application for reinstatement of the company, provided five stipulated conditions are satisfied. There is no difficulty with any of these conditions, but it is necessary to add to the draft orders that were submitted to me this morning by Mr Fernon an order that the plaintiffs pay ASIC's costs of $434, and I will so order. 12 I should add that condition 5 referred to in ASIC's letter requires that the liquidator notify ASIC upon conclusion of the winding up. I will therefore direct the liquidator to so notify ASIC. 13 I will make orders in terms of [1] to [7] of the short minutes of order handed to me this morning by counsel, which I will initial and date. As I have said, I also order that the plaintiffs pay ASIC's costs of $434, and direct that the liquidator be directed to notify ASIC upon conclusion of the winding up. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 3 July 2008 Counsel for the Applicant: J J E Fernon SC with D J A Mackay Solicitor for the Applicant: Breene & Breene Solicitors Date of Hearing: 13 June 2008 Date of Judgment: 13 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/962.html


case_text: Mr Fernon SC, who appears this morning for the plaintiffs, has referred me to a line of authorities which reveals the dispute. I do not intend to record what was said in those authorities, but the cases and relevant paragraphs are: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at [50] ; Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250 at [7] to [8]; Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) [2006] NSWSC 1022 at [12] ; JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636 at [7] -[8], and [10]. With the exception of the decision of Austin J in ACCC v ASIC , these authorities support the proposition that on registration of a company, the liquidator who was in office at the time of deregistration is not automatically reinstated.


case_title: Best v Yellow Express Carriers Limited (2004) NSWSC 666

case_text: However, in Best v Yellow Express Carriers Limited [2004] NSWSC 666 , Young CJ in Eq took a practical view to the question. His Honour took the view that in circumstances where the previous liquidator was served with the relevant papers relating to the application for reinstatement, and did not reply, it was open to the court to infer that the liquidator had no further interest in the matter. His Honour proceeded at [6] to observe that the company needed to have a liquidator and, in his view, the expedient and practical course was to remove the previous liquidator and to appoint another liquidator in accordance with the provisions of s 503 of the Corporations Act . 7 I have evidence before me today that indicates that the previous liquidators were served with notice of the application, but initially indicated no interest in continuing in office as liquidators of the company. However, there was then further communication with the previous liquidators which appeared to indicate a possible change of heart. However, on 22 May 2008, the plaintiffs' solicitors wrote to the solicitors for the previous liquidators requesting answers to a number of questions which would bear upon the issue of whether it was appropriate for the previous liquidators to continue in office upon reinstatement of the company. There has been no response to that letter. 8 It follows, in my view, that the appropriate course is not to seek to express any view as to the difference of opinion which has emerged in the cases to which I have referred, but, rather, to follow the expedient and practical course endorsed by Young CJ in Eq.


case_title: JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636


case_title: Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) (2006) NSWSC 1022


case_title: Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250


case_text: to s 24(2)(c) , the circumstances in which the contravention took place are outlined in the agreed statement of facts. As to s 24(2)(d) , Mr Atkinson has not previously been found by the Court in proceedings under the Spam Act to have engaged in any conduct similar to a contravention of s 16(1). Section 24(2)(e) addresses the question of whether Mr Atkinson has previously been found by a Court in a foreign country to have engaged in any similar conduct. As to that matter, the parties make this joint submission at para 53: In December 2008, Mr Atkinson was found by the High Court of New Zealand to have engaged in similar conduct arising from the same underlying facts [ Chief Executive, Department of Internal Affairs v Atkinson & Ors CIV-2008-409-002391, per French J, 19 December 2008]. Mr Atkinson cooperated with New Zealand authorities to resolve those proceedings, and paid a pecuniary penalty in the amount of NZ$100,000 in respect of contravening emails sent to recipients in New Zealand.


case_text: Atkinson was the subject of proceedings in the United States: Federal Trade Commission v Atkinson & Ors , United States District Court for the Northern District of Illinois, Eastern Division, Case No. 08CV5666. At para 6 of supplementary joint written submissions provided to the Court on the day of the hearing, the parties said this about the United States proceedings: United States judgment Paragraph 54 of the October submissions refers to proceedings on foot against Mr Atkinson in the United States, arising from the same conduct as is the subject of these proceedings. Default judgment has now been handed down in the United States proceedings, in the matter of Federal Trade Commission v Atkinson & Ors , United States District Court for the Northern District of Illinois, Eastern Division, Case No. 08CV5666. An amount of US$15,151,029 was imposed jointly and severally upon Mr Atkinson and Inet Venture Pty Ltd, as equitable monetary relief for violations of the Federal Trade Commission Act ( FTC Act ) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ( CAN-SPAM Act ). As set out at paragraphs 37 and 53- 55 of the October submissions, s.24(2) of the Spam Act provides that a relevant consideration for the Court is: if the Court considers that it is appropriate to do so - whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct. The parties submit that the findings of the United States court are relevant and should be taken into account by the Court, but do not amount to prior findings of contraventions that pre-date the conduct the subject of these proceedings, as they arise from the same conduct, and accordingly are not an aggravating factor. As the penalties sought in the present proceedings are in respect only of such emails as are connected with Australia, the parties submit a penalty in the amount proposed remains appropriate. On 4 November 2009, default judgment in the United States case was entered against five of the six defendants in the proceeding, including Mr Atkinson. The proceeding, commenced by the Federal Trade Commission ("FTC"), alleged a range of contraventions of the Federal Trade Commission Act (the "FTC Act"), concerning contended deceptive practices in connection with the sale of certain purported herbal products and a pharmaceutical medication, some of which involved representations as to sexual enhancement. There seems to be some correlation between the products in issue and those the subject of these proceedings. In addition, the proceedings involved contended contraventions of the United States Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 (the "CAN-SPAM Act"). Various provisions of the CAN-SPAM Act were relied upon by the FTC in the proceedings. The essential contention was that Mr Atkinson and others had initiated the transmission of unsolicited computer email messages in contravention of the Act in respect of the sale and promotion of the above products. The Court found, on the face of the FTC material, that there had been contraventions of the CAN-SPAM Act, and that: (A) the total amount of consumer injury caused by Defendants Lance Thomas Atkinson and [Inet Ventures Pty Ltd, a corporate defendant of which Mr Atkinson was found to be the sole officer] for the sale of their Hoodia Products [herbal products] Male Enhancement Products, prescription drugs, and other products through illegal commercial email messages is $15,151,029. In those proceedings a range of findings were made in relation to the pleaded conduct and judgment was entered in favour of the FTC against Lance Thomas Atkinson and Inet Ventures Pty Ltd, jointly and severally, in the amount of $15,151,029 for violations of the FTC Act and the CAN-SPAM Act.