case_text: Nor does it appear that the Tribunal's decision can be set aside on the ground of bias. The ground was raised, but not argued in detail. The test for ostensible bias as a ground for setting aside a decision of the Tribunal is whether a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question in issue. See Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68 per Deane J. In my view, a fair-minded lay observer, informed as to the material objective facts, who witnessed the Tribunal dealing with Ms Antipova's case, would have been more likely to conclude that the Tribunal had simply not performed its statutory function very well, rather than that it would fail to bring an impartial and unprejudiced mind to the resolution of Ms Antipova's case. The insistence on imposing a time limit, and the associated interruptions and attempts to shorten the evidence, were indicative of a desire to deal with the matter expeditiously, rather than of a desire to find against Ms Antipova, whatever the evidence might reveal. Nothing about the Tribunal's reasoning discloses that it approached the case with a closed mind. 112 For the reasons I have given, the Tribunal's decision is flawed by reason of its jurisdictional error. That error consists of failure to comply with the essential precondition to the exercise of the jurisdiction, provided by s 360(1) of the Migration Act , that the Tribunal invite the applicant to appear before it, to give evidence and present arguments relating to the issues arising in relation to the decision under review. Although the Tribunal gave Ms Antipova such an invitation in form, because of the manner in which it conducted the hearing, there was no such invitation in reality. Alternatively, the Tribunal denied Ms Antipova procedural fairness by the manner in which it conducted the hearing, and the denial of procedural fairness is such as to amount to jurisdictional error. Ms Antipova is entitled to have the decision set aside, and to have the Tribunal rehear her application for review of the decision of the Minister's delegate.


case_outcome: cited

case_text: Among the relief Ms Antipova seeks is a writ of certiorari, for the purpose of quashing the Tribunal's decision, as well as an order remitting the matter to the Tribunal for determination according to law (in reality, a writ of mandamus, or an order in the nature of mandamus). Relief of these kinds can only be granted against the Tribunal, which is not a party to the proceeding. See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162 at [43] per McHugh J, [91] per Gummow J, [153] per Kirby J and [180] per Hayne J. It will therefore be necessary for me to make an order joining the Tribunal as the second respondent to the proceeding. It is safe to assume that the Tribunal would follow the usual practice of submitting to any order that the Court might make, save an order for costs against the Tribunal. Service of the application and associated material on the Tribunal can therefore be dispensed with. A writ of certiorari should issue, directed to the Tribunal, bringing the decision into the Court, for the purpose of quashing it. The decision should be quashed. A writ of mandamus should also issue, directed to the Tribunal, requiring it to hear and determine the application of Ms Antipova for review of the decision of the Minister according to law. 114 No reason was advanced, and none appears, why the usual order, that costs follow the event, should not be made. The Minister will be ordered to pay Ms Antipova's costs of the proceeding. I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 19 May 2006 Counsel for the applicant: V A Morfuni SC Solicitor for the applicant: Lily Ong Counsel for the respondent: S Moore Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 30 March 2005 Date of Judgment: 19 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/584.html


case_text: The question which then arises is whether the disclosure of the AWB Information under s 127(4) requires ASIC to observe procedural fairness not only towards the examinee but also a party in the position of AWB consistent with the principles set out in Johns v ASC [1993] HCA 56 ; (1993) 178 CLR 408. The exercise of the statutory power is conditional upon the observance of the rules of natural justice ( Johns at 470; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , 591 and Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 , 598), but does that natural justice requirement extend to AWB?


case_text: Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].


case_text: In the course of argument, ASIC appeared to suggest there were qualifications to the general proposition that the ASIC Act did not abrogate legal professional privilege. The qualifications were, first, that the ASIC Act is silent as to whether a person other than a lawyer may refuse to give information on the ground that it would disclose a communication for which the person claims legal privilege. If that observation by ASIC was intended to provide support for a contention that an individual, not a lawyer, could be compelled by ASIC to disclose information for which the individual had a claim for legal professional privilege, then that contention is rejected. It is rejected because it finds no support in the Act and is contrary to authority ( Daniels ). There is no basis for distinguishing between a lawyer and an individual in the context of legal professional privilege. So much is made clear from the express words of s 69 of the ASIC Act . In the circumstances specified (which includes ASIC's powers of investigation, examination and information gathering in Pt 3) , a lawyer may refuse to comply with a requirement to give information or produce a book, where to do so would involve the disclosure of a privileged communication with the lawyer in their capacity as a lawyer " unless ... the person to whom, or by or on behalf of whom, the communication was made consents to the lawyer complying with the requirement" (emphasis added): s 69(2). In other words, consistent with authority, the section proceeds on the premise that the holder of the privilege (being the client regardless of whether the client is an individual or a body corporate) must consent to the disclosure of the privilege it holds. No other party is able to waive the privilege; it is the holder of the privilege (the client) that must act inconsistently with the maintenance of that privilege for privilege to be waived: see Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [17]. Any other result is contrary to the fundamental principles summarised in [21] and [22] above. 26 On the assumption that, at the outset of a s 19 examination, ASIC told an examinee that legal professional privilege may be availed of by that person to resist the giving of information or the production of documents that would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, then disclosure by an examinee or witness of information in which he or she holds the privilege would constitute an act inconsistent with the maintenance of that privilege and privilege would be waived: see Cadbury 246 ALR 137 at [13]. So much may be accepted. It is consistent with the established principles on waiver. 27 If ASIC's submission is intended to suggest that if that same person (for example, an employee, director, consultant to, but not a legal adviser of, a third party) was privy to the privileged communications of the third party, then ASIC could compel production of that privileged information, that contention should be rejected for the reasons outlined in [21] and [22] above.


case_title: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 (1985)

case_text: If, however, ASIC meant to submit not that it could compel a person (here, an employee or former employee) to disclose a third party's (here, a company's) privilege by force of statute, but rather that the person may lack the standing to assert the third party's privilege, then that contention may be accepted. Just as an employee can only waive a corporation's privilege if he or she has authority to do so (typically, where the person is a current officer or director), so too may an employee only assert a claim of privilege belonging to a corporation if he or she has the requisite authority: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 , 348-49 (1985); In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006); Wrench LLC v Taco Bell Corporation 212 FRD 514 , 517 (WD Mich 2002) (collecting cases); see also S McNicol, Law of Privilege (1992) at 161-62 (citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 for the proposition that an employee cannot assert the privilege of self-incrimination on behalf of a corporation [at that time corporations were still thought to have such a privilege] because the privilege is personal to the holder). To put it another way, the ASIC investigator was legally correct when he told counsel for AWB that "[n]either ... could [the employees] make the claim [of privilege on behalf of AWB] nor [could they] waive the claim...": [12] above.


case_outcome: discussed

case_text: However that may be, the fact of the matter is that ASIC now has possession of information which, at least in theory, could be subject to a valid claim of privilege by AWB. The question then is whether ASIC is entitled to make use of that information, notwithstanding the possible privilege claim, and the answer to that question is yes. As the Court of Appeal in Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 said (at [32]): [A]lthough it is now accepted that legal professional privilege is more than just a rule of evidence or procedure, it is clear that it is not to be characterised as a rule of law conferring individual rights sounding in damages or an injunction to restrain an apprehended or continued breach [ Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 565 (Gummow J)]. Consequently, once information in a privileged document has come into the hands of a party to litigation, even as a result of compulsive process which is later reversed, the fact that the document was and remains privileged does not of itself prevent that party from making use of the information [ Calcraft v Guest [1898] 1 QB 759, 763-4; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 (Gibbs CJ, in diss ), 67, 80 (Mason J, in diss ) 101, 109-110 (Brennan J in diss ), 129 (Dawson J); Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64 , 70 (Doyle CJ), 80 (Debelle J), 101 (White J); Heydon, Cross on Evidence , 7 th Aust Ed (2004) [25025]. 40 Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].


case_outcome: applied

case_text: It is settled that "legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client or his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services": Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 at [9] and [11] and the authorities cited. 23 In the absence of a statutory provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind contained in s 155 of the Trade Practices Act 1975 (Cth) ("the TPA"): Daniels Corporation [2002] HCA 49 ; 213 CLR 543 at [10] and [11]. Despite differences in language between the TPA and the ASIC Act , no different result ensues. There is no express provision in the ASIC Act abrogating legal professional privilege. Moreover, there is nothing in the ASIC Act supporting the contention that the abrogation of legal professional privilege is a necessary implication: see eg ss 1(1) , 1 (2), 1 (3), Pt 3 and, in particular, ss 68 and 69 . 24 In the course of argument, ASIC appeared to suggest there were qualifications to the general proposition that the ASIC Act did not abrogate legal professional privilege. The qualifications were, first, that the ASIC Act is silent as to whether a person other than a lawyer may refuse to give information on the ground that it would disclose a communication for which the person claims legal privilege. If that observation by ASIC was intended to provide support for a contention that an individual, not a lawyer, could be compelled by ASIC to disclose information for which the individual had a claim for legal professional privilege, then that contention is rejected. It is rejected because it finds no support in the Act and is contrary to authority ( Daniels ). There is no basis for distinguishing between a lawyer and an individual in the context of legal professional privilege. So much is made clear from the express words of s 69 of the ASIC Act . In the circumstances specified (which includes ASIC's powers of investigation, examination and information gathering in Pt 3) , a lawyer may refuse to comply with a requirement to give information or produce a book, where to do so would involve the disclosure of a privileged communication with the lawyer in their capacity as a lawyer " unless ... the person to whom, or by or on behalf of whom, the communication was made consents to the lawyer complying with the requirement" (emphasis added): s 69(2). In other words, consistent with authority, the section proceeds on the premise that the holder of the privilege (being the client regardless of whether the client is an individual or a body corporate) must consent to the disclosure of the privilege it holds. No other party is able to waive the privilege; it is the holder of the privilege (the client) that must act inconsistently with the maintenance of that privilege for privilege to be waived: see Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [17]. Any other result is contrary to the fundamental principles summarised in [21] and [22] above. 29 In other words, I accept the contention that although ASIC cannot compel the production of legally privileged communications of a person (ie the ASIC Act does not override or abrogate legal professional privilege), that does not mean that ASIC cannot receive such communications under any circumstances. As ASIC contended, legal professional privilege affords a person immunity from compulsory disclosure of its privileged communication ( Daniels ). That immunity does not prevent receipt by ASIC in the circumstances of the present case of legally privileged information from the examinees and the witnesses where they were not the holder of the privilege. 40 Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].


case_text: Of course, there cannot be a general rule that a legal representative of the employer or the former employer of the examinee should be permitted to attend to protect the employer's privilege. There may well be circumstances where to do so would jeopardise the investigation: see eg Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at [35] , [38]; see also Rochfort at 145 (Mason J) (stating that request for the production of privileged information should generally be directed to the employer but "the protection of the employer's interests [in the information] must give way to the public interest in the efficient administration of justice in case of collision between the two"). But in the absence of such a circumstance, the voluntary grant by ASIC of a limited right to be present in the manner outlined by counsel for AWB might have forestalled the issues raised in these proceedings.


case_title: In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006)


case_outcome: followed

case_text: Secondly, a government agency or authority (such as ASIC) in the exercise of its compulsory powers must provide the person the subject of the exercise of the power with a reasonable opportunity to claim legal professional privilege on his or her own behalf: see Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 , 414 and MM v Australian Crime Commission (2007) 244 ALR 452 at [35]-[36]; but see JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274 ; (2004) 139 FCR 537 at [10] - [13] . Given the arrangements put in place by ASIC (see [9], [11] above), there was no (and could be no) complaint that the examinees were not provided with a reasonable opportunity to claim legal professional privilege on their own behalf. 36 I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege.


case_outcome: referred to

case_text: In early 2008, ASIC received a request from the Australian Federal Police ("the AFP") that it disclose certain information, including the AWB Information, to the AFP. AWB's solicitors learned of the request from a current employee and three former employees who had been examined by ASIC. Those current and former employees had been contacted by ASIC about the AFP request. ASIC informed them that ASIC was considering whether to provide the transcript of their s 19 examination to the AFP and, consistent with the decision of the High Court in Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 , provided each of them with an opportunity to be heard and to make submissions to ASIC in relation to the proposed release of the transcript of their s 19 examination to the AFP. 4 Upon learning of the proposed disclosure by ASIC, AWB wrote to ASIC on 1 April 2008 seeking an opportunity to be heard and to make submissions to ASIC in relation to the proposed release of information to the AFP including the conditions of the release. ASIC responded on 11 April 2008. At that time, the request was limited to the transcripts of the s 19 examinations. ASIC outlined the terms of the AFP request, its proposal to release the transcripts of the s 19 examinations to the AFP and the conditions upon which that information was proposed to be released. ASIC expressed the view that: It is ASIC's view that the protocols that were applied during the course of the section 19 ASIC Act examinations to ensure that information subject to a valid claim of legal professional privilege was not disclosed were sufficient, and that no privileged information was disclosed during the course of any examinations. ... Further, in light of the conditions on which ASIC proposes to release the examination transcripts to the AFP, and the secrecy provisions imposed on employees of the AFP by section 60A of the Australian Federal Police Act 1979 Cth [sic], ASIC does not consider that [AWB's] interests in the confidentiality of any information provided to ASIC by examinees will be adversely affected by the proposed release. Although it is ASIC's view that ... [AWB's] interests will [not] be adversely affected by any decision to release the information to the AFP on the limited basis identified in paragraph 5 above, ASIC proposes to give [AWB] an opportunity to make submissions in relation to the conditions to be imposed on the disclosure of the transcripts of examinations of current or former employees of [AWB] to the AFP under section 127(4) of the ASIC Act . 5 ASIC and AWB's solicitors corresponded for some months. By July 2008, the AFP request had extended to disclosure of the witness statements that had been provided voluntarily by the employees and former employees of AWB. 45 However, that is not the end of the enquiry. The disclosure of the AWB Information by ASIC to the AFP was subject to conditions imposed under s 127(4A) (see [7] above). ASIC's s 127 power to disclose is discretionary: Johns at 428 and 469. The conditions are important. When, as here, conditions are imposed they are enforceable as an equitable obligation. The AFP is affected by the terms on which it received the AWB Information: Johns at 429. The obligation (expressed as a condition) is enforceable, at least, by injunction: Johns at 429. 46 The question which then arises is whether the disclosure of the AWB Information under s 127(4) requires ASIC to observe procedural fairness not only towards the examinee but also a party in the position of AWB consistent with the principles set out in Johns v ASC [1993] HCA 56 ; (1993) 178 CLR 408. The exercise of the statutory power is conditional upon the observance of the rules of natural justice ( Johns at 470; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , 591 and Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 , 598), but does that natural justice requirement extend to AWB? 47 First, it must be recalled that the AWB Information was protected by disclosure (s 127(1)) subject to the qualifications prescribed in ss (2)-(4). That antecedent right or duty is not determinative. However, it is a relevant factor affecting the exercise by ASIC of its discretionary statutory power to disclose the AWB Information to the AFP. Exercise of the authority conferred by s 127(4) was "apt to affect adversely" the interests of the examinees who are prima facie entitled to have the transcripts kept confidential: Johns at 430. It was for that reason, consistent with Johns , that ASIC observed the rules of natural justice and informed each of the examinees that it proposed to disclose the transcripts and gave each examinee an opportunity to oppose: Johns at 430-431. 48 The present case, however, concerns not the examinee but AWB, the employer or previous employer of each examinee. In Johns , McHugh J said (at 472) that "the need to preserve the confidentiality of ASIC's investigation does not exclude procedural fairness, but reduces its content, perhaps in some circumstances to nothing". Here, the question of whether or not ASIC was obliged to observe the rules of natural justice in the case of AWB did not arise. Although AWB was not told by ASIC of the proposed disclosures to the AFP, it learned of that fact, was "given the opportunity to put submissions before [ASIC] relating to matters requiring the non-disclosure of information by [ASIC]" ( Johns at 472) and took advantage of that opportunity by making numerous submissions opposing the disclosure. AWB might have persuaded ASIC to accept or adopt its submissions. It did not. In the circumstances, it is not necessary to pursue McHugh J's observation to its end to determine precisely how much the content of procedural fairness may have been reduced with respect to AWB; I need only find (and do find) that the opportunity to be heard that was given to AWB was sufficient. 49 It follows from what I have just said that none of AWB's grounds of review is made out. The specific grounds are disposed of as follows. 50 There was no and could be no constructive failure to exercise jurisdiction or an absence of power contrary to ss 5(1)(c) and (d) of the ADJR Act . AWB's contentions that ASIC was "[not] empowered by the ASIC Act to obtain confidential and privileged communications from persons other than the holder of the privilege in circumstances where the holder has not expressly or by implication waived the privilege" is too broad a proposition. ASIC is not empowered to compel production from the privilege-holder and did not do so. 55 In my view, there was no denial of natural justice. AWB was "given the opportunity to put submissions before [ASIC] relating to matters requiring the non-disclosure of information by [ASIC]" ( Johns at 472) and took advantage of that opportunity by making numerous submissions opposing the disclosure. As I have found, this opportunity to be heard was enough to satisfy any requirements of natural justice in the circumstances: see [47] above. Moreover, it is of the utmost importance to recall that in a proceeding of this nature it is neither necessary nor right to decide the merits of the decision. 56 For those reasons, I would dismiss the application and order the applicant to pay the respondent's costs to be taxed in default of agreement. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 11 December 2008 Counsel for the Applicant: Mr C Scerri QC and Mr P Corbett Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Mr S McLeish SC and Ms Z Maud Solicitor for the Respondent: Australian Securities and Investments Commission Date of Hearing: 10 November 2008 Date of Judgment: 11 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1877.html


case_text: I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege.


case_text: It is well established that "an administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so": MM at [40]. If a statute states expressly the factors that must be taken into account that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 , 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , 347-348.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_outcome: considered

case_text: Secondly, a government agency or authority (such as ASIC) in the exercise of its compulsory powers must provide the person the subject of the exercise of the power with a reasonable opportunity to claim legal professional privilege on his or her own behalf: see Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 , 414 and MM v Australian Crime Commission (2007) 244 ALR 452 at [35]-[36]; but see JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274 ; (2004) 139 FCR 537 at [10] - [13] . Given the arrangements put in place by ASIC (see [9], [11] above), there was no (and could be no) complaint that the examinees were not provided with a reasonable opportunity to claim legal professional privilege on their own behalf. 36 I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege. 37 But while there may be a question as to what obligations or abilities a person may have in respect of claims of privilege on behalf of third parties, it is clear that there is no requirement in the ASIC Act , which imposes an obligation on ASIC to afford a person or entity (other than the person the subject of the exercise of the compulsory power) (ie the third party itself): 1. an opportunity to intervene or interject in the exercise of the compulsory power over another in order to claim or assert legal professional privilege on behalf of itself: see, in particular Pts 3 and 7 of the ASIC Act ; or 2. notice that the exercise of its compulsory power in relation to another individual (such as an examinee) may result in that individual providing information that is subject to a claim of legal professional privilege by that third party. See by way of example, May v Deputy Commissioner of Taxation [1999] FCA 287 ; (1999) 92 FCR 152 at [31] , [36] and [38] and MM at [36] and [37]. 38 That is not surprising. If ASIC were under an obligation to notify a third party that the exercise of its compulsory power in relation to another individual (such as an examinee) may result in that individual providing information that is subject to a claim of legal professional privilege by that third party, by what criteria would ASIC determine when and in what circumstances it was required to notify a third party? Would ASIC be required to interrupt an examination upon becoming aware of the prospect of or the fact of information being provided by an examinee which might be the subject of a claim of privilege by a third party? How would ASIC determine if it was properly subject to a claim for legal professional privilege? The list of difficulties is endless and the possibility great that efficient and timely investigation of wrongdoing would be frustrated. 39 Moreover, there are measures that the third party can take to prevent disclosure of its privileged information even in the absence of a right to intervene. First, where an examinee is subject to the exercise of compulsory powers by a government authority and in possession of privileged information where the holder of the privilege is a third party, it is open to the holder of privilege to require or authorise the examinee to assert the holder's privilege to the authority: MM at [33] (cf s 122(3) of the Evidence Act 1995 (Cth)). Of course, the efficacy of this strategy is likely to be limited in situations where the third party does not have prior notice of the examination or other exercise of power over another under the ASIC Act . 40 Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104]. 42 It is well established that "an administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so": MM at [40]. If a statute states expressly the factors that must be taken into account that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 , 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , 347-348.


case_text: Section 127(1) of the ASIC Act imposes an obligation on ASIC to take all reasonable measures to protect the unauthorised use or disclosure of information given to it in confidence in performance of its functions: Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188 at [7] . Section 127(4) provides an exception to that general principle. Where ASIC is satisfied "particular information" will assist, for example, the AFP, then disclosure of that "particular information" to the AFP will be taken to be an authorised use and disclosure of that "particular information". 19 The exercise of the power under s 127(4) of the ASIC Act is the exercise of an additional power in relation to the "particular information" identified by ASIC at the time of the request by the AFP. It necessarily will involve consideration of "information" that did not exist at the time of the examination (here, the questions and answers recorded in the transcript) or the taking of the witness statement (here, the statement). It will also necessarily involve the consideration of matters that did not exist at the aforementioned times, including the nature of the agency function or power (here, criminal investigation by the AFP) and the usefulness of the information to that exercise of power (here, the conduct of that investigation). Section 127(4A) of the ASIC Act provides that ASIC may impose conditions in relation to disclosure of the "particular information" under s 127(4). The conditions imposed by ASIC in respect of the AWB Information are those set out in [7] above. 20 In the present case, the dispositive issue (see [13] above) has two aspects to it. The two aspects to consider are: 1. whether, in exercising the power under s 127(4) , by deciding to pass the AWB Information to the AFP, ASIC failed to consider a relevant matter; and 2. a more basic question of power. For reasons which will become obvious, it is first necessary to deal with the question of power. 21 There is no factual foundation yet established that there is material in the AWB Information to which the legal professional privilege of AWB attaches. However, if the AWB Information does contain information to which the legal professional privilege of AWB attaches, ASIC would have power to pass on that material to the AFP. That conclusion requires development.


case_title: NP Generations Pty Ltd v Feneley (2001) 80 SASR 151


case_text: If, however, ASIC meant to submit not that it could compel a person (here, an employee or former employee) to disclose a third party's (here, a company's) privilege by force of statute, but rather that the person may lack the standing to assert the third party's privilege, then that contention may be accepted. Just as an employee can only waive a corporation's privilege if he or she has authority to do so (typically, where the person is a current officer or director), so too may an employee only assert a claim of privilege belonging to a corporation if he or she has the requisite authority: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 , 348-49 (1985); In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006); Wrench LLC v Taco Bell Corporation 212 FRD 514 , 517 (WD Mich 2002) (collecting cases); see also S McNicol, Law of Privilege (1992) at 161-62 (citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 for the proposition that an employee cannot assert the privilege of self-incrimination on behalf of a corporation [at that time corporations were still thought to have such a privilege] because the privilege is personal to the holder). To put it another way, the ASIC investigator was legally correct when he told counsel for AWB that "[n]either ... could [the employees] make the claim [of privilege on behalf of AWB] nor [could they] waive the claim...": [12] above. 30 That conclusion sounds, at least at first blush, as harsh or unjust. Even Mason J, in holding that an employee could not claim privilege against self-incrimination on behalf of his or her corporate employer in order to resist a subpoena, accepted that ( Rochfort at 145): To acknowledge that the employee's possession [of privileged information] is sufficient in itself to sustain an obligation to produce, without reference to his employer, would be to disregard the employer's rights with respect to his documents. What is more it would deprive him of the privilege of objecting to produce a document on the ground that it has a tendency to incriminate him. However, closer examination reveals both why this result is not as harsh as it first seems and why it is necessary. 31 First, although the examination under s 19 of the ASIC Act is private, it is an examination where "the inspector may give directions about who may be present during it, or during a part of it": s 22(1). If a direction is made for a person to attend, that person is entitled to attend the examination: s 22(2). The "person" referred to in s 22 is not the examinee's lawyer. The right of the examinee's lawyer to attend and address the inspector is separately and expressly provided for in s 23. Who then could that person be? One obvious contender is the legal adviser of the examinee's employer in circumstances such as those outlined in the extracts of the transcript (see [10] above). But ASIC did not permit that to occur. The power to make directions must include directions not only about the identity of the legal representative who might be entitled to attend on behalf of the company at any examination, but also about the non-disclosure of the contents of the examination to any person or entity (including the entity seeking to protect its privileged communications). 32 Of course, there cannot be a general rule that a legal representative of the employer or the former employer of the examinee should be permitted to attend to protect the employer's privilege. There may well be circumstances where to do so would jeopardise the investigation: see eg Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at [35] , [38]; see also Rochfort at 145 (Mason J) (stating that request for the production of privileged information should generally be directed to the employer but "the protection of the employer's interests [in the information] must give way to the public interest in the efficient administration of justice in case of collision between the two"). But in the absence of such a circumstance, the voluntary grant by ASIC of a limited right to be present in the manner outlined by counsel for AWB might have forestalled the issues raised in these proceedings. 36 I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege.


case_title: United States v Western Electric Corp Inc 1990-1 Trade Cases |P 68,939; 1990 WL 39129 (DDC 1990)

case_text: However, neither AWB nor AWBI took any step to review the decision of the investigator to refuse to permit AWB to be represented at the examinations. Whether such an effort would have succeeded seems unlikely (see [36]-[37] below); in this regard, it is illuminating to examine United States v Western Electric Corp Inc 1990-1 Trade Cases |P 68,939; 1990 WL 39129 at *1 (DDC 1990) (stating that the company had no right to have its own counsel present, whether in addition to or in lieu of individual counsel, at examinations of present or former employees because that "would be an obvious prescription for frustrating investigations into wrongdoing").


case_title: Wrench LLC v Taco Bell Corporation 212 FRD 514 (WD Mich 2002)


case_text: On 19 April 2004, I gave directions in the proceeding, including a direction that the applicant file and serve any amended application, with proper particulars of the grounds relied upon. I also granted a certificate pursuant to O 80 of the Federal Court Rules , so that the applicant could receive legal advice from a barrister. Counsel who ultimately appeared for the applicant accepted the referral. An amended draft order nisi was filed, in which prohibition was sought against the Minister, and certiorari and mandamus against the Tribunal, although the Tribunal was still not named as a respondent to the proceeding. Remedies cannot be sought against the Tribunal unless it is named as a respondent, so it will be necessary for me to make orders adding the Tribunal as a respondent, with consequential amendments to the documents filed. See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162 . 6 By s 36 of the Migration Act 1958 (Cth) ('the Migration Act '), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms 'Refugees Convention' and 'Refugees Protocol' are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the 'Convention'. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'. 7 Section 91R of the Migration Act provides relevantly as follows: '(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: ... (b) the persecution involves serious harm to the person; and ... (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.'


case_text: Counsel for the Minister argued that, at least as to part of the relief claimed, the application was out of time under the High Court Rules 1952 ('the High Court rules') and, unless the Court extended the time, that relief could not be granted. As I have said, the relief sought against the Minister is prohibition. The High Court Rules contained no time limit in respect of an application for prohibition. Counsel for the Minister contended that it was inappropriate to seek prohibition against the Minister; once the Tribunal decision has been made, if it is not set aside, the Minister has a statutory obligation to remove the applicant from Australia. While this argument may be correct, it is of no consequence in the present case. It is conceded that, as against the Tribunal, the remedy of certiorari was sought by the filing of the application in the High Court within the time limit then fixed by O 55 r 17(1) of the High Court Rules. The application to the High Court was not filed within the two-month time limit, fixed by O 55 r 30 of the High Court Rules, in respect of an application for mandamus. In Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 at [73] , after examining some of the authorities, I expressed the conclusion that the better view is that, once the High Court has remitted an application for an order nisi to this Court, the time limits applicable in that court are no longer of any consequence. I remain of that opinion. 22 In any event, there was an amended draft order nisi filed in this Court. Although the use of an amended draft order nisi was perhaps not the most convenient procedure, it was of itself sufficient to invoke the jurisdiction of this Court, conferred by s 39B of the Judiciary Act , afresh. On the assumption that the Tribunal's decision is affected by jurisdictional error, and is consequently not 'a decision...made...under this Act' for the purposes of the definition of 'privative clause decision' in s 474(2) of the Migration Act , the time limit then fixed by s 477(1) was inapplicable. On that assumption, there was no time limit fixed for invoking the jurisdiction conferred on this Court by s 39B of the Judiciary Act , in respect of the Tribunal's decision. See Applicants M16 at [74]. 23 If it were necessary to enlarge the time limit for the application for mandamus, to give the applicant a constitutional entitlement to seek certiorari as an adjunct to mandamus (certiorari being a remedy not mentioned in s 75(v) of the Constitution ), then I should not hesitate to do so in the present case. There has been no undue delay. The proceeding was commenced within the time limited for an application for certiorari. The delay is not, in any event, gross. The Minister has not claimed to have suffered any prejudice by reason of the delay. The applicant's claim is one that has merits. 24 An alternative view is that certiorari might be a remedy available to the applicant, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), in a proceeding in which the jurisdiction of the Court is invoked validly by the remittal by the High Court of the application for prohibition against the Minister, even if the applicant could not succeed in obtaining that remedy against that respondent. 25 For all these reasons, it is unnecessary to consider the issue of the time of the commencement of the proceeding any further. 26 The applicant's case included a number of facts which, if accepted, distinguished him from most, if not all, of the people dealt with by the Egyptian authorities as a result of the activities at the nightclub. At the time of the events, the applicant was not a teenager, but was in his mid-twenties. He was not merely attending the events at which what were regarded as satanic rituals were taking place, but was facilitating those events, by making videotapes, and ensuring that the memory of the events was kept alive, by selling the videotapes to the participants. It was perhaps true to say, as the Tribunal did, that he was not an 'organiser' of the events, but he was certainly not in the same category as the ordinary participants.


case_outcome: distinguished

case_text: Counsel also argued that I should look at the earlier award in 1965 which was "simplified": see Award Simplification Case (1997) 75 IR 272. I agree with counsel for TPT that it would not be proper to have regard to such factors in a context where no evidence of such matters was raised in the court below. The learned Magistrate noted at [5] that there was no dispute about the facts. The dispute concerned the correct interpretation of the relevant terms of the Award. The history of the earlier award would be a matter of fact, provable by evidence. 17 The appeal will be allowed and the orders made on 15 October 2007 set aside. In place of those orders it is ordered that the respondent's application No. LNG6 of 2007 be dismissed. Leave is granted to the parties to file written submissions as to costs within seven days. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 10 April 2008 Counsel for the Appellant: J Bourke Counsel for the Respondent: W Friend Date of Hearing: 2 April 2008 Date of Judgment: 10 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/464.html


case_text: His Honour noted that there was no dispute about the facts. His Honour cited a number of authorities on the construction of awards: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 520; Kucks v CSR Limited (1996) 66 IR 181 at 184 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813 at [57] . In the latter case French J referred to an observation in his earlier decision City of Wanneroo v Holmes (1989) 30 IR 362 at 380: Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.


case_title: City of Wanneroo v Holmes (1989) 30 IR 362


case_title: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511


case_title: Kucks v CSR Limited (1996) 66 IR 181


case_text: On 21 February 2008 I delivered reasons for judgment in relation to an application, made by a Court appointed receiver, for orders: • that certain funds be added to the funds comprehended by the receivership; • extending the period of the receiver's appointment; • extending the time within which the receiver was required to prepare and file a report; • requiring the respondent to file an affidavit of documents; • requiring the respondent to provide copies of documents to the receiver on request; and • requiring the respondent to attend before the receiver for oral examination. See Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101. 2 I made the orders sought save for the order requiring attendance for oral examination. I did not make that order because I was informed that an oral examination had taken place. I reserved the right of the receiver to apply for an order requiring a further oral examination. 3 I reserved the question of costs. As directed each party has filed and served written submissions on what costs orders should be made. I have now considered those submissions.


case_text: The relevant principles in relation to preliminary discovery were summarised by Hely J in St George Bank v Rabo Australia Ltd (2004) 211 ALR 147 at [153]-[154]. These indicate that O 15A r 6 is to be beneficially construed and given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court in the light of the specific circumstances. Each of the elements in sub-paragraphs (a) to (c) of r 6 must be established. The test for determining whether the applicant has "reasonable cause to believe" as required by r 6(a) is an objective one. There is no requirement for the applicant to make out a prima facie case, but a mere assertion that there may be a right to obtain relief is not sufficient. There must be more than suspicion or conjecture. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application in so far as it is based on that cause of action. 15 In relation to r 6(b), the authorities indicate that the question is whether an applicant has sufficient information for the limited purpose of making a decision as to whether to commence proceedings in the Court. It is permissible for an applicant to obtain discovery to determine what defences are available to the respondent, and the possible strength of these defences, but discovery is not available to an applicant so that it may exhaust every possible line of defence. The question as to whether sufficient information is available requires an objective assessment to be made.


case_text: The relevant principles were also considered by Lindgren J in Glencore International AG v Selwyn Mines Ltd (2005) FCA 801. In that case, his Honour indicated that the measure of preliminary discovery is the extent of information that is necessary, but no more than that which is reasonably necessary, in order to overcome the insufficiency of information already possessed by the applicant after it has made all reasonable inquiries to enable it to make a decision as to whether to commence proceedings.


case_text: In Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] (unreported, No. NG 351 of 1996), Lindgren J stated at [41]: 'The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding."' 18 At [50], his Honour said: 'Having regard to the extensive scientific research which has been carried out by or on behalf of Alphapharm and its strong prima facie case, it is difficult to avoid the conclusion that in seeking re-action discovery, it is seeking to eliminate a possibility, rather than to obtain key information without which it is not able to commence a proceeding. No doubt inspection of the documents referred to in Alphapharm's application would assist it in taking that decision, but I am of the view that it already has reasonably sufficient information to enable it to decide. Another way of expressing the matter is to say that Alphapharm has not, after making all reasonable inquiries, come up against an obstacle consisting of the lack of key information which it reasonably needs to enable it to decide whether to commence a proceeding; rather, it hopes to be comforted in taking the decision which it already has sufficient information to enable it to take .' (Emphasis added)


case_title: C7 Pty Limited v Foxtel Management Pty Ltd [2001] FCA 1864

case_text: These remarks, particularly at [50], are apposite to the present case. It is necessary for an applicant to show more than a mere assertion that there is a case against a prospective respondent: see C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [39] . The purpose of preliminary discovery is not to produce material which will strengthen or enhance a decision to commence proceedings but rather to provide what is reasonably necessary to enable the decision to be made. 20 The respondents resist the application and submit that the application must fail because essential elements which must be established under r 6(a) to (c) in order to found jurisdiction in the Federal Court have not been made out. In addition, the respondents submit that as a matter of discretion, the Court should refuse to grant the discovery sought on the basis that it is oppressive and so broadly cast as to encompass what are likely to be a substantial number of irrelevant documents. 21 In relation to r 6(a), the respondents submit that, objectively approached, there is no reasonable cause to believe that the applicant may have a right to obtain relief in the Federal Court. This is because the elements of the prospective cause of action advanced by the applicants which might attract federal jurisdiction, namely, a claim for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth), are not present on the evidence. It is said that as an objective conclusion, it has not been established that the elements of such an action can be made out. For present purposes the respondents do not dispute that there may be a cause of action in contract, but say this is not sufficient to ground jurisdiction for the grant of preliminary discovery because it lacks the necessary federal element to satisfy r 6(a) so that there is a right to relief in the Federal Court. Unless there is reasonable cause to believe there is a federal cause of action, it is said that the preliminary discovery application must be refused for want of jurisdiction.


case_text: The Tribunal was placed in a difficult situation by reason of the issue having been expressly adverted to only after the completion of the hearing in the way it was. However, the Tribunal, by implication, professed to be aware of s 7(1) and then went on to expressly consider that issue in the decision. In doing so, it held that there was no evidence in relation to it. That was not correct. To so hold was an error on a question of law within the meaning of s 44(1) of the Administrative Appeals Tribunal Act ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 (agreed with by Brennan J and Deane J); Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [21] [25]).


case_title: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331


case_text: There is no evidence that enables a factual determination of whether or not it is unreasonable not to have raised the point earlier. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.


case_text: The applicant seeks leave to appeal from a decision of the Federal Magistrates Court, SZFMW v Minister for Immigration [2008] FMCA 1274 , in which Driver FM dismissed his application to review a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 11 December 2003 ('the Tribunal decision') on the basis of Anshun estoppel. The Federal Magistrate's orders were interlocutory (rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth)). The applicant therefore requires leave to appeal to this Court (ss 24(1)(d) and 24 (1A) of the Federal Court of Australia Act 1976 (Cth)). The first respondent opposes the application on the basis that Driver FM's judgment is not attended with sufficient doubt to warrant leave to appeal being granted and no substantial injustice would result if leave were not granted. 6 His Honour said that, while the issue was not raised in the earlier court proceedings, the principle of res judicata would still probably apply and that, even if it did not, there was no reason why the issue could not have been raised in the earlier legal proceedings. His Honour said that the applicant was simply seeking to take advantage of a recent Court decision that appeared to favour an argument that could have been raised previously. In his Honour's view, the circumstances gave rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10. His Honour said at [5]: ' Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage ' and dismissed the application. 11 The applicant, who appears in person assisted by an interpreter, was unable to point to any error in Driver FM's decision to dismiss the application on the basis of Anshun estoppel. He reiterates the difficulties with his previous legal representatives and relies upon his lack of appreciation of what could have been advanced before Smith FM. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties.


case_text: Contrary to the assertion by the applicant, the failure to raise s 441G of the Act earlier and the fact that the applicant's solicitors failed to appreciate that the applicant may have had an argument under s 441G of the Act does not constitute fraud on the Tribunal within the meaning of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 ; see also Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501. 16 In any event, the Minister submits that the grant of leave to appeal is futile. He points out that s 441A(4)(c)(ii) of the Act provides that the Tribunal may give a document to a person by posting it to the last residential or business address provided by the recipient in connection with the review. The Minister says that the postal address disclosed in correspondence satisfies the requirements of that section. On that basis no breach of s 441G of the Act could be made out as the Tribunal sent the correspondence to the authorised recipient at the postal address disclosed in correspondence between the authorised recipient and the Tribunal in respect of the review of the applicant's application.


case_text: Second, Driver FM noted that the applicant sought to take advantage of a recent decision of the Full Court of the Federal Court in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 ; (2008) 102 ALD 541 concerning s 441G of the Act. His Honour noted at [5] that the Court documents disclosed: ... an arguable case in that, while the Tribunal appears to have corresponded with the applicant's authorised recipient at the postal address of the authorised recipient disclosed in correspondence, the Tribunal has apparently not corresponded with the authorised recipient at the office address stipulated in section C of the review application completed by the applicant. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. 17 In SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 the Full Court of this Court considered the meaning of notification for the purposes of s 477 of the Act. The Full Court concluded that notification occurred when an applicant has physical possession of a decision by any means. It is reasonable to infer that the applicant was in possession of the Tribunal decision at least by the time he filed his application for special leave to the High Court on 20 September 2006. The applicant submits that the time runs from the date of the decision in SZIZO . That is clearly not correct. The application to Driver FM was made out of time.


case_text: In SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 the Full Court of this Court considered the meaning of notification for the purposes of s 477 of the Act. The Full Court concluded that notification occurred when an applicant has physical possession of a decision by any means. It is reasonable to infer that the applicant was in possession of the Tribunal decision at least by the time he filed his application for special leave to the High Court on 20 September 2006. The applicant submits that the time runs from the date of the decision in SZIZO . That is clearly not correct. The application to Driver FM was made out of time.


case_text: His Honour said that, while the issue was not raised in the earlier court proceedings, the principle of res judicata would still probably apply and that, even if it did not, there was no reason why the issue could not have been raised in the earlier legal proceedings. His Honour said that the applicant was simply seeking to take advantage of a recent Court decision that appeared to favour an argument that could have been raised previously. In his Honour's view, the circumstances gave rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10. His Honour said at [5]: ' Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage ' and dismissed the application. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. 14 The Full Court in Wong commented at [38] that where there are special circumstances that prevail to permit a party to raise an issue in a subsequent proceeding, the Court has a discretion, if it determines that "special circumstances" exist, to allow an issue to be raised even where it is found that the point was unreasonably omitted from the earlier proceeding. The applicant does not advance any special circumstances beyond the fact that the argument was not put.


case_text: In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 1196, para 18, in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, the following passage appears: if the reason why the tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of paragraph (a) of section 424A (1). Again, if the Tribunal affirmed the decision because even the best view of the Appellant's evidence failed to disclose a convention nexus, it is hard to see how such a failure can constitute "information." Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 that: The word "information" does not encompass the tribunal's objective appraisals, thought processes or determinations ... nor does it extend to identify gaps, defects or lack or detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 9 And then the High Court continued: If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. 10 There is both an evidentiary as well as a legal characterisation question involved in an allegation that s 424A has been breached. For present purposes, the evidentiary element is resolved against the Appellant in the sense that it is patent that the Tribunal sent to him a letter dated 3 August 2007, which at least purported to comply with the obligation the Tribunal apprehended it had under s 424A. When one examines the terms of that letter as a matter of legal characterisation, it is apparent that the Tribunal has complied with, and perhaps even exceeded, the obligations which fell on it pursuant to s 424A , having regard to what was said by the High Court in SZBYR . 11 The Tribunal has, at some length in the letter, highlighted particular inconsistencies, which it apprehended, having regard to statements made by the Appellant, either to the Department or in evidence at the hearing the Tribunal conducted. Having so done, the Tribunal, in its letter of 3 August 2007, stated that: The inconsistent statements are relevant to the review, as they indicate that you may not be a truthful witness, and that you may have not told the truth in the information provided to, and the statements made to, the Department and to the Tribunal in support of your protection visa application. 12 The Tribunal then, in its letter, invited the Appellant to give comments in writing on the information it had set out in the letter. The Appellant did not respond to this invitation. The learned Federal Magistrate concluded that in the circumstances, there had been no breach by the Tribunal of s 424A. His Honour noted that, at para 83 of the Tribunal's reasons, the Tribunal had come to a conclusion that the Appellant was not a truthful witness. His Honour made reference (at para 15) to a portion of the Full Court's reasons for judgment in VAF , quoted by the High Court in SZBYR , a passage I have already cited. I respectfully agree with the learned Federal Magistrate that no breach of s 424A is evident.


case_text: When asked to elaborate upon this ground in oral submissions, the Appellant replied, "no comment". Again though, out of considerations of fairness and humanity, it seems to me that with an appellant whose primary language is not English and for whom these processes must seem quite strange, it seems to be preferable to consider this ground on its merits, rather than to treat it in light of the oral submission made as having been abandoned. One finds in the Federal Magistrate's decision at para 17 what in my respectful opinion is an apt summary of principle pertinent to this ground of appeal as given by Moore, Tamberlin and Allsop JJ in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at para 115: By and large fact finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20 of 2002 198 ALR 9 where fact finding has been conducted in a manner which can be described as here as in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation at times is plainly and ex facie wrong and is selective of material going one way. These conclusions may found a conclusion that the posited fair-minded observer might or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else the fair-minded observer might ask can one explain the largely unreasoned rejection of documents as vague when they plainly were not and it's not saying the appellants were Catholics when expressly or impliedly they did. And how else does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Christian faith when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance. The answers to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case, it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion barely evaluating all the material. 14 One sees in the Tribunal's reasons a very comprehensive rehearsal indeed of the basis upon which the Appellant sought a protection visa and of the various statements which he had made both to the department and later to the Tribunal. Having so done, under the heading "Findings and Reasons", one finds in the Tribunal's reasons what seems to me, as it seemed to the Federal Magistrate, a logical and reasoned analysis of the ramifications of particular inconsistencies there detailed by the Tribunal. That analysis culminates in the following paragraphs in the Tribunal's reasons which capture not only the bases of the Appellant's claim for a protection visa but also why the Tribunal concludes that the claim lacks a factual foundation: [83] On the above evidence and for the above reasons, the Tribunal finds that the applicant is not a truthful witness and his statements, both to the Department and the Tribunal, lack credibility. Also for the above reasons, and as the Tribunal has found that the applicant is not credible, the Tribunal also finds that the applicant: was not a member of an underground church, was not involved with Mr Lin in religious activities, was not involved with a Mr Lin, who was or was claimed to be Taiwanese spy by Chinese authorities, did not provide "waste paper" with government stamps to Mr Lin, was not warned by Chinese authorities to not go to bible study meetings, was not advised by Chinese authorities to attend "big church", was not arrested in August 2006, his shop was not searched and closed by police at the end of October 2006, and he did not go into hiding at the end of 2006. 15 Having made these findings, the Tribunal then found: [84] Although the applicant has knowledge of Christianity and may be a Christian, the Tribunal finds that he would not be persecuted in the reasonable foreseeable future if he returns to the Peoples Republic of China for his religious or imputed religious beliefs, as the Tribunal is not satisfied that the applicant is a member of an underground church. Further, for similar reasons, the Tribunal finds that the applicant would not be persecuted in the reasonably foreseeable future if he returned to the Peoples Republic of China, his opinion or imputed political opinion, as the Tribunal is not satisfied that the applicant was involved with Mr Lin, who was or was claimed to be a Taiwanese spy by Chinese authorities or he provided "waste paper" with government stamps to Mr Lin. 18 In SZKLK v Minister For Immigration [2008] FCA 1125 , I had occasion to review various authorities touching upon the administrative law error ground of bias. I shall not repeat what is there stated. One way in which a claim for bias might be made out, in a way which intersects with unreasonableness, is that stated in the passage which I have quoted from in NADH of 2001 . That basis is not made out here. The conclusions reached by the Tribunal are objectively able to be seen as referable to logical consequences of credibility findings reasonably open to the Tribunal. There is not a scintilla of evidence which would support a conclusion of actual bias on the part of the Tribunal. However one approaches the case, the result is nothing more than a consequence of conclusions the Tribunal reached in light of inconsistencies that it found. That result is undoubtedly disappointing to the Appellant, but again, I remind myself that it is no part of my role to descend into the merits of whether the claim should be accepted. There is no error, in my opinion, in the Federal Magistrates rejection of ground 3.


case_text: The findings which the Tribunal made were reasonably open to the Tribunal. It is not the role of the Federal Magistrates Court, and much less is it the role of this Court, to make value judgments as to the factual merits of a claim for a protection visa, or in respect of the credibility of the applicant for such a visa. A principled restraint is called for on the part of those exercising judicial power in relation to such matters in these types of cases. Credibility findings are, in the ordinary course, findings of fact par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405. 17 Again, it is evident from the Federal Magistrate's reasons for judgment that his Honour adopted just such an approach. Further, like his Honour, I do not apprehend from the Tribunal's reasons any error on its part in applying the so-called "real chance" test. In this regard, it suffices for me to endorse, respectfully, the observations made by the learned Federal Magistrate at para 20 of his reasons for judgment. On the findings which the Tribunal made, it was quite reasonably open to conclude that the Appellant did not face a real chance of persecution were he to be returned to the Peoples Republic of China.


case_text: In SZKLK v Minister For Immigration [2008] FCA 1125 , I had occasion to review various authorities touching upon the administrative law error ground of bias. I shall not repeat what is there stated. One way in which a claim for bias might be made out, in a way which intersects with unreasonableness, is that stated in the passage which I have quoted from in NADH of 2001 . That basis is not made out here. The conclusions reached by the Tribunal are objectively able to be seen as referable to logical consequences of credibility findings reasonably open to the Tribunal. There is not a scintilla of evidence which would support a conclusion of actual bias on the part of the Tribunal. However one approaches the case, the result is nothing more than a consequence of conclusions the Tribunal reached in light of inconsistencies that it found. That result is undoubtedly disappointing to the Appellant, but again, I remind myself that it is no part of my role to descend into the merits of whether the claim should be accepted. There is no error, in my opinion, in the Federal Magistrates rejection of ground 3.


case_text: Though this was not advanced as a ground of appeal, the Minister very properly drew my attention to a recent decision of a Full Court, SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451 , which had considered the meaning and application of s 91R. In that case, the Full Court construed s 91R(3) as capable of sensible application, only once primary findings of fact have been made. In other words, conduct must first be shown to have taken place before it could be disregarded. It is evident from the passage which I have quoted from the Tribunal's reasons that conduct, namely attendance at church in Australia, was found. The Tribunal was entitled to make the finding that it did concerning the motivation for that attendance. 21 Further, the Tribunal was obliged, having made its findings, to disregard the attendance, and whatever ramifications it may have had in relation to a claim for a protection visa, in light of s 91R(3). The Tribunal's reasons do not disclose any error of the kind highlighted in SZJGV . 22 For these reasons then, the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 13 November 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr Shariff Solicitor for the Respondents: Clayton Utz Date of Hearing: 10 November 2008 Date of Judgment: 10 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1692.html


case_outcome: affirmed

case_title: Nathan v Capital Finance Australian Ltd [2007] FMCA 1503

case_text: appellant, Mr Kailai Nathan, appeals from a judgment of Burchardt FM, in which his Honour dismissed Mr Nathan's claims concerning alleged contraventions of ss 52 and 60 of the Trade Practices Act 1974 (Cth) ("the Act "); see Nathan v Capital Finance Australia Ltd [2007] FMCA 1503. Mr Nathan's amended statement of claim in the proceeding below traversed many issues, however his Honour struck out all aspects of it other than those concerning ss 52 and 60 of the Act . In his reasons for judgment, Burchardt FM said at [10]: "I did ... make it clear that the trial would be restricted to the issues involving alleged contraventions of s 52 and s 60 of the Act ." The aspects of the amended statement of claim dealing with other issues were the subject of interlocutory decisions of the primary judge in respect of which Mr Nathan did not seek leave to appeal. The events the subject of the claim under s 52 of the Act occurred in May 2001. Mr Nathan's case was essentially as follows: • on 24 May 2001 he visited the premises of James Lane Motors in Coburg; • at that time he was employed as a casual psychiatric nurse by a nursing agency; • he spoke to a Mr Gavin Fernandez at James Lane Motors about purchasing a motor vehicle; • on 28 May 2001, he returned to James Lane Motors and spoke to a Mr Cameron McCredie; and • Mr McCredie told him that the loan arrangement for the purchase of the vehicle included "loan protection cover" for the monthly payments. The respondent's case on the s 52 issue was essentially as follows: • Mr Nathan might be confused about loan protection insurance on the car because he had taken out a personal loan with the respondent in September 2001 which included a sickness, accidental injury or involuntary unemployment insurance policy, as part of that personal loan; • no such loan protection cover was included in the car loan or any representation made to that effect; • it is not possible to obtain such insurance cover in favour of a debtor; and • if such a representation was made by Mr McCredie, he was not authorised to do so by the respondent.