case_title: Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1990) 90 FCR 538

case_text: the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.


case_outcome: cited

case_text: Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262 at 1267 Gummow J said that: "[t]here must be some difficulty ... in finding an "error of law" in the failure in the tribunal to make a finding first urged in this court". His Honour's observation was referred to with approval by the Full Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18. On the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.


case_title: Ferriday v Repatriation Commission (1996) 69 FCR 521


case_outcome: referred to

case_title: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241


case_text: distinction has been drawn, in the authorities, between findings which the Tribunal is bound to make for the purposes of a particular case and those which it is not required to make. In the former case a question of law may be found to arise notwithstanding the failure of the parties to raise the issue before the Tribunal and the failure of the Tribunal to deal with it. Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 was such a case. There Bowen CJ said (at 343) that: "In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends in my view upon principles similar to those expressed by Dixon J in Burston's case and by the same judge in Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 , at p 640 "to fulfil an imperative demand of justice...". In Kuswardana the Tribunal had to make a determination as to whether or not the applicant before it was an 'immigrant' because the application of the statutory provisions which the Tribunal was applying depended on an answer to that question.


case_title: Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 ; (1982) 42 ALR 209

case_text: powers must be read in context. They are not as expansive as might at first appear. In Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 ; (1982) 63 FLR 441 at 454 Sheppard J said that: "It is in my opinion not correct to say that this court is by these provisions given wide powers to make such order as it thinks fit. Implicit in its power are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before the court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s. 44(4) when it limits its statement of the express power of the court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings...". It is not disputed that the "reasonable time" point could have been taken before the Tribunal. Had it been, the Tribunal would have been in a position to find the facts which are set out in my earlier judgment at [43]-[52] and determined whether, as a matter of law, ASIC had failed to comply with the implied obligation contained in s 206F of the Act and what, if any, consequences should follow. The Tribunal did not consider the point and make any findings because Mr Culley did not raise it.


case_title: Secretary, Department of Social Security v Cooper (1990) 26 FCR 13


case_outcome: applied

case_text: The principles involved in a transfer have been well-rehearsed in the authorities, and the submissions have collected a number of those authorities. Principal among them, of course, is that of the Full Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155. In these matters it is fair to say that the statement of the test is not difficult. Rather, it is the application of the test in view of the particular elements of the case or cases in question. There will undoubtedly be inconvenience to one side or the other, depending upon from which Registry the matter is managed, even bearing in mind the availability of telephone and/or video links where appropriate. 6 Each side says that they have lawyers in their own city which they wish to retain or have retained and wish to keep in the matter, albeit the Adelaide party did initially instruct a Sydney solicitor. In my opinion, the matter is so evenly balanced that I regard as the tipping point the nature of the proceedings, being ultimately the winding up of companies, the registered offices of which are in Adelaide. The books of account are in Adelaide and the persons in control of the companies also reside in Adelaide. I appreciate that that will not always be the governing factor, but in this case it seems to me that where the applicant is seeking to wind up companies, the residence of those companies is, in the end, an important aspect which tips the scales here in favour of Adelaide as a venue. 7 I mention, although it does not have the same significance, the fact that it is said that one of the underlying agreements identifies the laws of South Australia as the governing law. 8 So far as costs are concerned, in my opinion there is no occasion for this to be regarded as anything else but a routine application in case management. It was evenly balanced and there was nothing unreasonable in the attitude of the applicants in wishing to preserve Sydney as a venue. I make no special order as to costs. The consequence is that these costs will be costs in the cause. 9 Mention has been made of the fact that Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited have not yet completed filing of their evidence in relation to service of the statutory demands, which was required to be completed by 23 May 2008. I will extend time for the filing of that evidence, for a short period, to enable the evidence as to service to be finalised so that whoever manages the matter in South Australia can, if he is so minded, split the matter to deal with service. I do not think it is appropriate that I make any order about the balance of the evidence at this stage. I think it should be brought on for an early directions hearing before the managing judge so that these decisions can be made promptly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 11 June 2008 Counsel for Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited: Mr T Rickard Solicitor for Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited: Simmons & McCartney Lawyers & Attorneys Counsel for Hardel Investments Pty Ltd and Avpri Pty Limited: Mr RJ Whitington QC Solicitor for Hardel Investments Pty Ltd and Avpri Pty Limited: Johnson Winter & Slattery Date of Hearing: 4 June 2008 Date of Judgment: 4 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/873.html


case_outcome: followed

case_text: The " observations " and conclusions reached by the Tribunal, however, were matters for it. The conclusion relied upon by the Appellants was a conclusion open to the Tribunal upon the facts before it and, as such, does not disclose any jurisdictional error. The task of making findings of fact is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1988) 86 FCR 547 at 552, 559. " It is not for this Court to reconsider the tribunal's factual findings ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] , [2006] FCAFC 195 ; 93 ALD 333 at 352 per Young J (Gyles and Stone JJ agreeing). Wherever the boundaries of jurisdictional error may be drawn, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.


case_text: Again, this Ground impermissibly seeks to project this Court -- and the Federal Magistrates Court -- into a review of the findings and conclusions made by the Tribunal. It is no part of the function of either court to consider the merits of a decision as made by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281 2. To the extent that this Ground can be understood, it also seems to suffer from a more fundamental problem. In reaching the conclusion that it did, the Tribunal accepted the Appellant husband's own assessment as to the problems to be confronted in the future. How an acceptance of such evidence can constitute " jurisdictional error " also remained unexplained. 14 The appeal must be dismissed with costs. Pursuant to O 62 r 4(2)(c) of the Federal Court Rules costs are sought in a gross sum of $2,600. It is appropriate to make an order for the payment of such costs. 15 The orders of the Court are: 1. The appeal be dismissed. 2. The Appellants to pay the costs of the First Respondent fixed in the sum of $2,600. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 21 August 2008 The First Appellant: The First Appellant appeared in person The Second Appellant: The Second Appellant did not appear Counsel for the First Respondent: L Clegg Solicitor for the First Respondent: Clayton Utz Date of Hearing: 21 August 2008 Date of Judgment: 21 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1306.html


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


case_title: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 , 93 ALD 333


case_text: An application to review that third decision of the Tribunal was dismissed by the Federal Magistrates Court: SZHCK v Minister for Immigration [2008] FMCA 760. The Notice of Appeal as filed in this Court sets forth the following three Grounds of Appeal (without alteration): 1. The Federal Magistrates Court erred in not considering that the Refugee Review Tribunal (the Tribunal) wrongly observed that the applicant would not involve in the politics in future because of his personal circumstances, the applicant said this because he wanted to avoid harm for himself and for his family and for his child. The applicant still believe that he would not be able to decide freely if he goes back to India. 2. The Federal Magistrates Court also did not consider that the Tribunal made a jurisdictional error when the Tribunal found that the threat to the applicant were made for reason arising from their friendship with the applicant's father in law's associates but the Tribunal did not consider that the applicant were threatened two occasions by the associates of his father in law. 3. The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error by observing that the applicant would not have threat given the effluxion of time but the Tribunal failed to show that the applicant will not face persecution in future if he returns to India. 6 The Appellant husband appeared before this Court this morning unrepresented, although he did have the benefit of an interpreter. His wife did not appear. 7 None of the Grounds of Appeal have been made out and the appeal should be dismissed with costs.


case_text: Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Witham ') at 530. As is apparent from the Statement of Charge, Louis Vuitton is alleging both civil and criminal contempt. However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534.


case_text: Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Witham ') at 530. As is apparent from the Statement of Charge, Louis Vuitton is alleging both civil and criminal contempt. However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534. 33 Criminal contempt is an indictable offence at common law: see John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj é v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj é') and Gompers v Buck Stove & Range Co 221 US 418 (1911) (' Gompers '). 37 However, the traditional approach that enabled that outcome may need to be revisited in the light of Witham in which Brennan, Deane, Toohey and Gaudron JJ (at 532-534) observed: 'At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. ... However, in our view, there are fundamental problems even with that approach. One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests. Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties. Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury , Sidney Smith JA rejected the submission that settlement precluded further proceedings saying: "Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law." And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri , that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed". Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as "punitive" and others as "remedial or coercive". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt.' (footnotes and citations omitted) See also McHugh J at 539-541 and 549. 38 Witham did not go so far as to decide that the distinction between civil and criminal contempt no longer existed, although McHugh J observed (at 549) that the 'case for abolishing the distinction between civil and criminal contempt is a strong one'. However, the conclusion that all contempts arising from a breach of a court order are criminal in nature, involve punishment and necessarily involve the public interest in the administration of justice by vindication of the court's authority, plainly undermines the traditional rationale for allowing civil contempt cases to be settled, that rationale being that contempt cases may be settled because they are proceedings in the interest of the aggrieved party that are remedial or coercive, rather than punitive, in nature. 39 The distinction drawn in the majority judgment in Witham between the purpose of a contempt proceeding and an aggrieved party's purpose in bringing a contempt proceeding is significant. It was in that context that their Honours referred to the observation in Canadian Transport v Alsbury (1952) 7 WWR (NS) 49 (which was affirmed on appeal in Poj é) that it is not the law that a party's willingness to 'swallow the contempt' has the consequence that the court can do nothing about it. As was observed in Poj é at 520 a contempt may be civil or criminal 'depending upon the nature and quality of the conduct in question in any particular case'. It must follow that, as a claim based inter alia on a breach of a court order has the potential to be a claim of both civil and a criminal contempt, there is some difficulty in purporting to offer to settle, or in settling, the 'contempt' claim. 42 When regard is had to Witham there is some difficulty in contending that a contempt claim is not of public concern and does not involve any interest of a public character. 43 In the present case, I need not go so far as to find that claims of contempt resulting from breach of a court order cannot be compromised or settled; there was no compromise or settlement of the contempt claims that were pressed by Louis Vuitton at the hearing. However, Louis Vuitton made offers to Maskiell to compromise or settle the claims it was entitled to pursue as a result of her re-infringing conduct in breach of the Court's orders. The issue is whether Louis Vuitton's conduct in relation to those offers ought to result in it not receiving any orders for costs and being required to pay for any costs incurred by the respondents in raising issues concerning the propriety of that conduct. 44 Plainly, where conduct is in breach of a court order, but also gives rise to private claims for relief, the private claims may be compromised or settled. However, in the light of Witham , an aggrieved party and its solicitors should exercise prudence and caution when offering to settle claims arising out of the contravening conduct. That is particularly so when they are dealing with a litigant in person. The reason for that is that breach of a court order is criminal in nature, may result in fines and imprisonment and has the potential to constitute a criminal contempt. Accordingly, there is a real risk of impropriety, and possibly illegality, if an offer to compromise or settle the claims of the aggrieved party in respect of the contravening conduct is not reasonably and fairly based on the legal right to relief the aggrieved party has, or may have, in respect of that conduct. In other words, if the threat or prospect of contempt proceedings is used to obtain a compromise or settlement beyond that to which the aggrieved party would be entitled as a matter of law, the threat may amount to improper pressure, duress or even extortion. 45 While the law may be in an uncertain state on this issue, it is plainly prudent that any offer of a settlement or compromise of private claims, which arise out of conduct in breach of a court order, should clearly specify the private claims that are being settled and make quite clear what is intended, or not intended in respect of the contempt claim. For example, a private litigant is not under a duty to prosecute a contempt claim. Therefore, provided that there is still a distinction between civil and criminal contempt, it may not be improper for a party to indicate that, if that party's non-contempt claim is resolved, that party does not intend to prosecute the contempt claim. Further, even if a prosecution has commenced, it may not be improper for the prosecuting party to agree to seek to discontinue the contempt claim provided an adequate disclosure is made to the Court. However, it is clear that, save where the issue of contempt is entirely excluded from the offer, the offer should be limited to matters that fall within, and do not travel beyond, the legal entitlement of the aggrieved party. At the least, the offer should be based on a reasonable and reliable estimate of that entitlement. 46 In that context, I turn to consider the offers made by Louis Vuitton to compromise or settle its claims against Maskiell and Design Elegance arising as a result of their breaches of the consent orders.


case_text: I have taken into account the limited financial means of the respondents but have concluded that that should not prevent the imposition of significant fines as the penalties in the present case should be those that are necessary to vindicate the Court's authority and to deter others from engaging in similar conduct: cf Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 at 284-285 ([9]-[10]). I have also concluded that the totality principle should be applied with the consequence that a total amount should be fixed by way of penalty for each of the respondents. 29 In all the circumstances I have determined that the imposition of a fine of $20 000 on each of the respondents is appropriate.


case_text: While the power to award costs in all proceedings is discretionary, it is common for costs, and on some occasions indemnity costs, to be awarded in favour of a successful applicant in contempt proceedings: see generally Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 at 351-353 and Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496 at 509 [53].


case_title: Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496


case_text: Criminal contempt is an indictable offence at common law: see John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj é v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj é') and Gompers v Buck Stove & Range Co 221 US 418 (1911) (' Gompers ').


case_text: Criminal contempt is an indictable offence at common law: see John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj é v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj é') and Gompers v Buck Stove & Range Co 221 US 418 (1911) (' Gompers '). 36 Accordingly, on the basis of the traditional approach a claim for civil contempt that involved injury to the private rights of a litigant was able to be the subject of a settlement or compromise between the parties. Indeed, in both Poj é and Gompers the courts accepted that a private civil contempt claim or prosecution arising as a result of breaches of a court order could be settled between the parties, but held that the settlement could not have any impact or consequence for a criminal contempt claim or prosecution in respect of the same conduct. 39 The distinction drawn in the majority judgment in Witham between the purpose of a contempt proceeding and an aggrieved party's purpose in bringing a contempt proceeding is significant. It was in that context that their Honours referred to the observation in Canadian Transport v Alsbury (1952) 7 WWR (NS) 49 (which was affirmed on appeal in Poj é) that it is not the law that a party's willingness to 'swallow the contempt' has the consequence that the court can do nothing about it. As was observed in Poj é at 520 a contempt may be civil or criminal 'depending upon the nature and quality of the conduct in question in any particular case'. It must follow that, as a claim based inter alia on a breach of a court order has the potential to be a claim of both civil and a criminal contempt, there is some difficulty in purporting to offer to settle, or in settling, the 'contempt' claim.


case_text: Criminal contempt is an indictable offence at common law: see John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj é v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj é') and Gompers v Buck Stove & Range Co 221 US 418 (1911) (' Gompers '). 36 Accordingly, on the basis of the traditional approach a claim for civil contempt that involved injury to the private rights of a litigant was able to be the subject of a settlement or compromise between the parties. Indeed, in both Poj é and Gompers the courts accepted that a private civil contempt claim or prosecution arising as a result of breaches of a court order could be settled between the parties, but held that the settlement could not have any impact or consequence for a criminal contempt claim or prosecution in respect of the same conduct.


case_text: The rationale for waiver in respect of a civil contempt was explained by Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307: 'One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.'


case_text: In Harman v Secretary of State for the Home Department [1983] AC 280 at 310 Lord Scarman observed: 'The distinction between "civil" and "criminal" contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as "scandalising the court," physically interfering with the course of justice, or publishing matter likely to prejudice fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise): the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act: he may waive, or consent to, the non-compliance.'


case_text: A further difficulty with settlement of a claim of 'a criminal nature' that is in the public interest, rather than merely just in the private interest of the parties, is that it may be contrary to public policy. In Kerridge v Simmonds [1906] HCA 66 ; (1906) 4 CLR 253, the High Court held that a settlement which involved the withdrawal of a private prosecution for unlawful publication of defamatory matter was not contrary to public policy, and therefore void, because the offence was not of a public nature but, rather, was one for which the injured persons could sue and recover damages. The principle stated by Griffith CJ (at 258) was that: '... there is no objection to compromising a claim for private injury resulting from an act which amounts to an indictable offence provided that it is not a matter of public concern.' And (at 260) '... I am of opinion that it is not unlawful for a person defamed, or who has sustained purely personal injury, to withdraw a prosecution already instituted for such an offence, or to agree not to institute such a prosecution. Where a person is entitled to recover pecuniary damages, the suggestion that there is a social duty incumbent upon him to prosecute is untenable. The law allows him either to prosecute or to sue for damages, and I can see nothing to prevent him from agreeing to receive an indemnity for the personal injury he has sustained, leaving the representatives of the public to prosecute if they think fit. If, as in some cases, he is the only person entitled to institute the prosecution, then â fortiori it is a matter of private, and not of public, concern.' 41 Barton J agreed and observed (at 262) that the propriety in suppressing a prosecution by a private bargain may depend on whether: 'any interest of a public character could be involved in [the] prosecution.'


case_outcome: related

case_text: 26 November 2009, I delivered Reasons for Judgment in these matters ( Bitech Engineering v Garth Living Pty Ltd [2009] FCA 1393) ( the principal judgment ). On that day, I reserved all questions of costs for determination on the papers. I directed that the parties file Written Submissions on the question of costs. All parties have now filed Written Submissions. In the proceeding between it and Flameglow Pty Limited ( Flameglow ), the applicant ( Bitech ) seeks to tender on the question of costs certain correspondence passing between its lawyers (DLA Phillips Fox) and the lawyers for Flameglow. That correspondence is to be found at pp 18 33 of Bitech's Written Submissions on Costs dated 3 December 2009. That correspondence will become Exhibit A in the costs applications. Flameglow tenders on the question of costs in the proceeding against it a letter from its solicitors (Donaldson Walsh) to DLA Phillips Fox dated 23 May 2008. That letter will become Exhibit 1 in the costs applications.


case_text: took virtually no part in the final hearing. At [8] in the principal judgment, I said: The unjustified threats Claim will turn on the resolution of the other issues referred to in [6] and [7] above. That Claim was adjourned on 21 October 2008 because Mr Ogilvie, the principal witness to be called by Flameglow in support of that Claim, was ill and could not attend Court when the hearing of the other liability issues took place. The orders made on that occasion and the reasons for them are to be found in Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583. In addition, Flameglow did not participate to any real extent in the hearing before me. Its participation was confined to seeking to have its unjustified threats claim adjourned and to seeking to read an affidavit sworn by Mr Ogilvie, which I rejected. After I published the principal judgment, I was informed that, on 2 June 2009, Flameglow had been placed into voluntary liquidation. Although there is no evidence of this fact before me at the moment, both parties have made their submissions on costs upon the basis that Flameglow is now in voluntary liquidation. I will proceed upon the basis that Flameglow was placed into voluntary liquidation on 2 June 2009. In due course, I will need to be satisfied by admissible evidence that this is the fact. The effect of the voluntary liquidation of Flameglow is that, as and from 2 June 2009, no action or proceeding is to be proceeded with or commenced against Flameglow except by leave of the Court. Leave may be given on such terms as the Court may impose (s 500(2) of the Corporations Act 2001 (Cth)). As is apparent from the reasons which I gave on 21 October 2008, when the unjustified threats claim was adjourned (as to which see Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583) , Senior Counsel for Bitech sought a special order in respect of costs as part of the terms upon which the adjournment requested by Flameglow should be allowed. At that time, I deferred dealing with those submissions but indicated that Bitech's position would be adequately protected. At the directions hearing held before me on 3 December 2009, Flameglow sought a two week adjournment of the balance of its Cross-Claim in order to allow the liquidators of Flameglow to come to a view as to whether or not that Cross-Claim should now be prosecuted to finality. I agreed to that adjournment but indicated that I expected the liquidators to have come to a firm decision by 16 December 2009, the date to which the matter has been adjourned. I am not presently dealing with the costs of that part of Flameglow's Cross-Claim which comprises its unjustified threats claim. The costs of that claim will be determined when the balance of Flameglow's Cross-Claim is resolved. Notwithstanding the fact that I am not currently dealing with the costs of the unjustified threats claim, the existence of that claim and its unresolved status are both matters which I am entitled to take into account in determining what orders for costs (if any) I should make at the moment.


case_text: notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233 234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 153 (per Black CJ) and at 156 158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] [33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales & Mackenzie) to DLA Phillips Fox dated that day. Omitting formal parts, that letter was in the following terms: Without Prejudice Save as to the Question of Costs Dear Sirs, Re: Garth Living Pty Ltd and Anor -ats- Bitech Engineering No. NSD 1681 of 2006 The First Respondent/Cross Claimant hereby offers to settle the proceeding inclusive of the Applicant/Cross Respondent's claim, interest and costs, on the following terms ("Offer of Settlement"): The Applicant discontinue the proceeding; The Applicant pay to the First Respondent its costs to date in defending the proceeding; The First Respondent discontinue its cross-claim; There be no order as to costs on the cross-claim. The Offer of Settlement is open for acceptance in writing until 4.00pm on Friday 25 July 2008 after which time it will expire. The Offer of Settlement is made in accordance with the principles applied in Calderbank -v Calderbank (1975) 3 All ER 333 and Cutts -v- Head [1983] EWCA Civ 8 ; (1984) 1 All ER 597 and adopted in the Supreme Court of Victoria in MT Associates Pty Ltd -v- Aqua Max Pty Ltd and Anor (No. 3) (2000) VSC 163 and on the basis of the policy considerations referred to by Hon. Justice Byrne in Mutual Community Limited -v- Lorden Pty Ltd (unreported Supreme Court of Victoria, Byrne J. 28 April 1993 at 12-13) as referred to in Stipanov -v- Mier (No. 2) (unreported Sup. Crt. Victoria, Hollingworth J. 22 November 2006); (2006) VSC 424 , at para 10. Should the Offer of Settlement not be accepted by the Applicant, the First Respondent reserves its right to produce this letter to the Court on the question of costs, and to make application to the Court for an award of indemnity costs against the Applicant for all costs of the proceeding from the date of the Offer of Settlement (including any trial). Should you require clarification in respect to any aspect of the Offer of Settlement, then please contact me. Please confirm receipt of this correspondence.


case_text: 11 July 2008, Bunnings made a further offer of settlement in which it proposed that Bitech should discontinue its proceeding against Bunnings and pay Bunnings' costs of that proceeding. There was no element of compromise in this offer. It cannot assist Bunnings in its claim for indemnity costs (see Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212 at [10] ; Vasram [2002] FCA 1286 at [12] ). Bunnings has not made out a case for indemnity costs.


case_text: the time the offer of 11 July 2008 was made, all questions of liability in the proceeding had been fixed for final hearing in late October 2008. Although Bitech had not put a positive evidentiary case in answer to Garth Living's Cross-Claim, it had by 11 July 2008 undoubtedly expended some costs in seeking to defeat that Cross-Claim. In its Calderbank offer, Garth Living did not offer to pay Bitech's costs of its Cross-Claim. It should have done so. Nor did Garth Living offer to consent to the issue of a s 19 Certificate of Validity in respect of the Patent (as to which see PAC Mining Pty Ltd v Esco Corporation (No 2) [2009] FCAFC 52 at [11] and at [16]). In those circumstances, I consider that the offer which was made by Garth Living fell well short of what was required in July 2008 to found a claim for indemnity costs. Further, by 11 July 2008, much of the expert evidence relied upon at the trial had been filed and served. There was a dispute between the parties' experts as to whether reflected light contributed at all to the flame effect observable on the viewing screen and, if so, to what extent and in what way. There was also a contest as to the true construction of the Patent. These issues were not so obviously weighted in favour of the respondent parties that Bitech should be held to have acted unreasonably in rejecting an offer which, in effect, required it to capitulate. The additional matters to which I have referred in [18] above reinforce my view that, in the circumstances of this case, it would be inappropriate to make an order for indemnity costs in favour of Garth Living. Bitech seeks its costs of the Cross-Claim brought by Garth Living against it. There was some overlap between the infringement proceeding and the Cross-Claim but not such a significant overlap as to justify a special costs order in respect of that Cross-Claim. As Bitech correctly submitted, the Cross-Claim raised substantial issues as to the validity of the Patent including lack of novelty and obviousness. A good deal of time, effort and expense was devoted to these issues both before and during the hearing. The following remarks made by the Full Court in PAC Mining Pty Ltd [2009] FCAFC 52 at [11] are apt: In the present case, the appellants might well have defended (and, as things have turned out, successfully defended) the respondents' case on infringement without putting obviousness or novelty in issue. By putting those things in issue, the appellants introduced into the litigation a range of substantial questions which were ultimately decided against them. Although we accept that an issues-based apportionment of costs is not always appropriate, particularly in a case in which conventional alternatives are agitated, the appellants' obviousness and novelty points in the present case were not merely alternative ways of arriving at the conclusion that they had not infringed the patents in suit. They were that, of course, but they were a good deal more: they challenged the basic validity of the patents. As a result of successfully fending off that challenge, the respondents succeeded in obtaining certificates as to validity which have themselves survived the appellants' appeal. In these respects we make no distinction between the appellants' challenge to validity as expressed in their Defence, and their corresponding challenge in the Cross-claim. From the viewpoint of awarding costs, the reality is that, once that challenge was made in both respects, there was a single case, as it were, on obviousness and novelty which the respondents had to meet. In the present case, I do not think that the issue of fair basis was so significant as to require separate treatment. There will therefore be an order for costs in favour of Bitech in respect of Garth Living's Cross-Claim. Cohen seeks an order for indemnity costs. It contends that Bitech unreasonably rejected a settlement offer made by its lawyers (Bradley Allen) to DLA Phillips Fox on 4 August 2008. That offer was in the following terms, omitting formal parts: WITHOUT PREJUDICE SAVE AS TO COSTS Dear Sirs Cohen Nominees Pty Ltd & Garth Living Pty Ltd ats Bitech Engineering Pty Ltd Federal Court No. NSD 1681 of 2006 Our client is willing to settle the above proceedings on the basis that the proceedings be discontinued with no order as to costs. This offer is put on a Calderbank basis which would be used on the question of costs if not accepted and a judgment is ultimately handed down which is on less favourable terms to your client than this offer. If the offer is not accepted within 21 days we will ask for orders that your client not be entitled to be paid costs, other than the costs of considering the offer, incurred after the receipt of the letter and that our client's costs after that time be paid by your clients and further that this be on an indemnity basis. Bitech ignored this offer. Cohen ceased all involvement with the MS-5 heater (the only model with which it had a connection) in February 2007. It behaved sensibly in meeting the infringement case against it. It made appropriate admissions.


case_title: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151


case_title: University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360


case_title: Vasram v AMP Life Ltd [2002] FCA 1286

case_text: offer made by Cohen on 4 August 2008 was made some two and a half months before the trial. It represented some compromise in that it involved an abandonment by Cohen of any entitlement to its costs. This type of compromise will usually not be material when the Court is considering an application for indemnity costs based upon an allegedly unreasonable rejection of a settlement offer ( Vasram v AMP Life Ltd [2002] FCA 1286 at [12] ). The offer required Bitech to abandon its claim altogether. The matters mentioned in [18] above are also relevant to my consideration of Cohen's claim for indemnity costs. For all of these reasons, I do not think that Cohen's claim for an order for indemnity costs has been made out. I do not think that there are any other special circumstances in relation to this proceeding which demand any further departure from the usual rule that the costs should follow the event. I will therefore make orders accordingly. DLA Phillips Fox holds in its trust account: (a) $150,000.00 as security for Garth Living's costs; and (b) $150,000.00 as security for Cohen's costs of the proceedings. On 11 July 2008, Bunnings made a further offer of settlement in which it proposed that Bitech should discontinue its proceeding against Bunnings and pay Bunnings' costs of that proceeding. There was no element of compromise in this offer. It cannot assist Bunnings in its claim for indemnity costs (see Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212 at [10] ; Vasram [2002] FCA 1286 at [12] ). Bunnings has not made out a case for indemnity costs.


case_text: appellant contends that s 426A, properly construed, confers a discretion to exercise a statutory power in one of two ways. First, provided the pre-conditions to the exercise of power are satisfied, the Tribunal may make a decision on the review 'without taking any further action to allow or enable the applicant to appear before it' (s 426A(1)). Secondly, the Tribunal might delay its decision on the review and reschedule the hearing to enable the applicant to appear before it (s 426A(2)). The exercise of the discretion thus arising is informed, it is said, principally by two things. First, on the facts of this case, the applicant made it plain to the Tribunal that he wished to attend a hearing and be heard in relation to his claims, with the assistance of an interpreter. The election to exercise a discretion to make a decision without taking any further action to enable the applicant to appear before the Tribunal necessarily foreclosed the applicant's opportunity to advance arguments in support of the claims in circumstances where the Tribunal understood the applicant wished to take advantage of that 'hearing opportunity'. Secondly, the principles upon which the statutory power to either make a decision or reschedule a hearing might be exercised are informed, it is said, by the nature of the jurisdiction exercised by the decision-maker ( R v Commonwealth Conciliation and Arbitration Commission ; Ex parte The Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553); the statutory framework consisting of express and implied provisions in the Act and inferences of legislative intention to be drawn from the subject matter of the Act ( Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1964-1965) 113 CLR 475 at 503 and 504 per Kitto J); and a recognition that when a discretionary power is statutorily conferred upon a decision-maker the power must be exercised '... reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention' ( Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36 per Brennan CJ.


case_title: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1964-1965) 113 CLR 475


case_text: nevertheless remains a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so ( Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31) recognising the broader notion of 'the interests of justice' suggested in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 per Branson, Katz JJ at [8], and the discipline required of parties in the conduct of the case ( Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 per Gyles J at [61] [62]).


case_title: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43


case_title: Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9


case_text: determining the question of whether leave should be given to file the proposed amended notice of appeal, it is necessary to give some consideration to the merits of the ground raised and consider whether the ground has a reasonable prospect of success. The strength of the prospect of success and the substance of the ground necessarily informs whether it is expedient and in the interests of justice that leave be given. See Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]. In relation to the question of whether the issue was raised before Federal Magistrate Barnes, her Honour noted at [13] that the application for review filed on 16 February 2004 in the Federal Court contained 'a number of generally expressed and unparticularised grounds'. An amended application was filed on 31 March 2004. A further amended application was filed on 28 June 2004 and a further amended application was filed on 9 August 2004. In this appeal, the appellant seeks leave to file an affidavit of Laura Rutter affirmed on 31 July 2006 which annexes the application and each amended application. In order to complete the contextual record, I gave leave to read and file the affidavit of Ms Rutter in the appeal. No version of the application document raises, in terms, the ground now sought to be agitated by the appellant. The highest at which the matter might be put is that Federal Magistrate Barnes noted at [17] a claim by the appellant that he had been denied procedural fairness by the Tribunal. The content of that claim seems to be based upon an alleged failure on the part of the Tribunal to comply with ss 424A and 425 of the Act. I am unpersuaded that the appellant raised the current contention in the earlier proceedings. The attempt to do so now raises the matter for the first time.


case_text: underlying facts going to the ground were, however, examined by her Honour. At [15] her Honour considered the principles governing the decision by the Tribunal to proceed pursuant to s 426A to make a decision on the review consequent upon the Tribunal's invitation to the appellant of 25 September 2003 to appear before the Tribunal and the failure on the part of the appellant to appear on the nominated day and at the nominated time and place. The Tribunal said this: 'The Tribunal based its decision upon its lack of satisfaction on the material before it that the applicant met the applicable criteria. The findings that the Tribunal made were open to it on the material before it. The Tribunal was not obliged to accept at face value the applicant's claims: see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [15] [16]. I note that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter such as the letter of 25 September 2003 putting him on notice that the Tribunal was not prepared to make a favourable decision on the information before it, the Full Court of the Federal Court described rejection of the application for review as the "inevitable consequence" of the applicant's non-attendance at the Tribunal hearing: see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] .' (' NAVX v MIMIA')


case_text: paragraphs [23] [25] of the judgment, her Honour addressed the complaint made by the appellant that his migration agent had 'put him into the dark' concerning the opportunity to appear before the Tribunal and thus the appellant had not been afforded procedural fairness. Apart from noting that the Tribunal had written to the appellant's migration agent and to the appellant at both residential addresses nominated in the documentation before the Tribunal, her Honour observed that NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162 (' NASF v MIMIA') is authority for the proposition that no lack of procedural fairness or other jurisdictional error arises in circumstances where the Tribunal's invitation of 25 September 2003 was sent in accordance with the requirements of the Act. No issue is raised concerning compliance with ss 425 or 425A as the appellant responded to the invitation on 27 September 2003 affirming a desire to appear. However, the appellant says that any reliance upon NASF v MIMIA in the context of the proposed ground of appeal is unsound because in that case a similar point of differentiation also arises namely, that the appellant's migration agent, in that case, had returned the form to the Tribunal stating that the appellant did not wish to attend the hearing before the Tribunal. Accordingly, it is not correct to describe either NAVX v MIMIA or NASF v MIMIA as authorities guiding or informing the exercise of the discretion conferred upon the Tribunal by s 426A on the footing that they represent 'similar circumstances' (as Federal Magistrate Barnes observed at [15]).


case_text: respondent says that in considering the question of whether the Tribunal ought to have rescheduled the appellant's appearance before it, an adjournment of the hearing upon the failure of the appellant to attend ought to have been granted because adjournments are more readily granted in inquisitorial proceedings ( Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 283 per Moore J); the election to proceed to make a decision without taking any further action to enable the appellant to appear may involve procedural fairness on the ground that speed and peremptoriness may convey an inference that the Tribunal has failed to consider relevant material and engaged in a constructive excess of jurisdiction ( Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197); and that consistent with the observations of McHugh J in Minister for Immigration & Multicultural Affairs Re ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [126] , the rules of natural justice regulate the exercise of a power conferred upon a public official (or Tribunal) unless those rules '... are excluded by plain words of necessary intendment (Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598)' and 'An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" (Annetts v McCann at 598) Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Annetts v McCann also at 598)' , per McHugh J at [126].


case_title: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197


case_outcome: considered

case_text: When the appellant applied to the Federal Magistrates Court for review of the second decision he again asserted that the decision was based upon Mrs Sun's evidence and that he had not been allowed to cross-examine her. It is true that the matter was raised in a rather unorthodox way, but nonetheless it was raised. Concerning this complaint the Federal Magistrate said at [27] and [28]: 27 At particular (f) to ground one and at ground five the [appellant] complains that the Tribunal did not allow him to cross-examine Ms Sun. The drafter of this document plainly understood that the Tribunal is not a court of law (see ground five) and that the Tribunal did not have an obligation to allow him to cross-examine Ms Sun. As Ms Wong submits, the [appellant] does not have such an entitlement to cross-examine persons appearing before the Tribunal to give evidence. Section 427(6)(b) of the Act plainly provides that the applicant has no such entitlement (see Algama v Minister for Immigration and Multicultural Affairs (2001) ..., cited with approval in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs ... . 28. The Tribunal's analysis reveals that it considered the evidence provided by Ms Sun, discussed her evidence at the hearing with the [appellant] and put to the [appellant] that it was "difficult to accept" the [appellant's] evidence in light of Ms Sun's evidence, and gave him the opportunity, by way of its s 424A letter, to further comment. That the Tribunal chose to give greater weight to the evidence of Ms Sun, as opposed to the evidence of the [appellant], is within the Tribunal's discharge of its duty as the finder of fact. I cannot see that the [appellant's] complaint that the Tribunal's preference for the evidence of Ms Sun to his evidence was made without "any substantial and objective evidence to support". On what was before it, it was open to the Tribunal to reject the [appellant's] evidence and to prefer that to prefer that of Ms Sun. The Tribunal gave clear reasons for this. This aspect of the complaint also does not succeed. 14 Ground 5 in the notice of appeal to this Court, is: The Federal Magistrate erred in law because the Tribunal's decision has obviously included apprehension of bias. Significantly, regarding my requirements to cross-examine Mrs Sun, I may understand that the Tribunal may not be a court of law, and thus the Tribunal may not have to do so. But, the key issue is that the Tribunal has given particular weight to Mrs Sun's allegation against me without any substantial and objective evidences! [sic]. In other words, the Tribunal preferred the evidence of Mrs Sun to my evidence and rejected my claims without any substantial and objective evidences to support! [sic]. 15 Again, the language may be inelegant and the attribution of bias to the Tribunal may be misconceived. Nonetheless, the claim is sufficient to raise an assertion of lack of procedural fairness and should be understood as such. In any event, the notice of appeal was amended on 10 April 2008, pursuant to order made on 7 April 2008, to include a further ground of appeal as follows: The learned Federal Magistrate erred in upholding the Tribunal's error in treating s 427(6) of the Migration Act 1958 ("the Act ") as being determinative of the Appellant's application to cross-examine Mrs Sun and as a consequence: • failing to consider the merits of the Appellant's application to cross-examine Ms Sun; • failing to permit the Appellant to cross-examine Mrs Sun (the "Alleged Errors"). The learned Federal Magistrate erred in failing to hold that the Alleged Errors amounted to a failure by the Tribunal to accord the Appellant procedural fairness. The learned Federal Magistrate erred in failing to hold that the failure by the Tribunal to accord the Appellant procedural fairness precluded the Tribunal's decision from being a "... decision under this Act ..." within the meaning of s 474 of the Act . 25 Of some significance in construing s 427(6) is the decision of the Full Court in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 ; (2003) 134 FCR 271. That case concerned the entitlement to legal representation and the discretion to permit such representation. At [67]-[69] French and Lee JJ held that: 67. The effect of the cases referred to is that s 427(6)(a) applies to applicants for review who appear before the Tribunal to give evidence. An applicant so appearing is "not entitled ... to be represented before the Tribunal by any other person". But that is a statement about entitlements. It does not exclude the rules of procedural fairness insofar as they may require representation in the circumstances of a particular case. ... To displace the common law agency rule is not to displace procedural fairness, although it could no doubt place a considerable obstacle in the way of any suggestion that procedural fairness requires in every case that an applicant be represented by a lawyer or other agent. ... 68. ... 69. The Tribunal clearly has a discretion to allow a person to be represented before it. The question that arises is whether there may be circumstances in which a decision to disallow representation of an applicant before the Tribunal amounts to a denial of procedural fairness. 26 Their Honours went on to conclude that in the circumstances of that case the Tribunal's refusal to permit legal representation constituted a denial of procedural fairness. Hill J reached the same conclusion. It may reasonably be inferred from that decision that had the law remained unchanged, there was, in the present case, a discretion to permit cross-examination. Further, a decision not to permit cross-examination might, in certain circumstances, have amounted to a failure to accord procedural fairness to the relevant applicant. There is a further question which was not addressed in WABZ . It is whether an applicant who, pursuant to s 425 , is invited to appear to give evidence and present arguments is a person invited to give evidence for the purposes of s 427(6). Given the strict limitations upon the content of the rules of procedural fairness imposed by the enactment of s 422B , there may well be justification for a strict reading of s 427(6) so as to exclude from its operation applicants who appear both to give evidence and make submissions. Such enactment occurred after the decision in WABZ . 30 The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.


case_text: The terms of s 422B in its original form are somewhat unclear. However their meaning was settled by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214. In that case the Court adopted the reasoning of Heerey J in the earlier decision of VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562. In the latter case at [23]-[25], Heerey J examined the history of events leading up to the enactment of s 422B. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 , the High Court considered provisions in another part of the Act which were analogous to provisions concerning the procedure to be followed by the Tribunal. The majority held that such provisions did not exclude the common law rules of natural justice. McHugh J considered that the provisions did not "exhaustively define the content of fair procedure". Kirby J observed that "(i)t would require much clearer words" in order to provide that such provisions "exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case". 29 In Lat the Full Court was concerned with s 51A , a provision similar in effect to s 422B. At [63]-[67] the Court said: 63. We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred. 64. It is true that the words "in relation to the matters it deals with" might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC , obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act , were intended to overcome the effect of the High Court's decision in ... Miah ... . 65. Heerey J set out in VXDC at [23]-[25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah . We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer. 66. What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. 67. Other aspects of the common law of natural justice, such as the bias rule are not excluded ... . 30 The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.


case_text: The terms of s 422B in its original form are somewhat unclear. However their meaning was settled by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214. In that case the Court adopted the reasoning of Heerey J in the earlier decision of VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562. In the latter case at [23]-[25], Heerey J examined the history of events leading up to the enactment of s 422B. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 , the High Court considered provisions in another part of the Act which were analogous to provisions concerning the procedure to be followed by the Tribunal. The majority held that such provisions did not exclude the common law rules of natural justice. McHugh J considered that the provisions did not "exhaustively define the content of fair procedure". Kirby J observed that "(i)t would require much clearer words" in order to provide that such provisions "exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case". 28 In VXDC Heerey J considered that the insertion of s 422B was intended to reverse the effect of the decision in Miah . His Honour referred to the relevant explanatory memorandum and the second reading speech and, at [30]-[31] concluded: 30. In the present case it is not easy to see how the drafters of the explanatory statement and the Minister could have made it any plainer that the intent of the 2002 amendments was to reverse the result of Miah and provide comprehensive procedural codes which made detailed provision for procedural fairness but excluded the common law natural justice hearing rule. Astute readers will notice the term "exhaust" is picked up from the majority judgments and included in the Statement and Speech, as well as in the amendments themselves. 31. Moreover, essentially the same procedural codes are introduced for a wide range of administrative decision-making functions under the Migration Act , in many cases no doubt made by officers who are not legally qualified. Parliament cannot have intended that the uncertainties of the common law rules were, in some unspecified way and to some unspecified extent, to survive. 29 In Lat the Full Court was concerned with s 51A , a provision similar in effect to s 422B. At [63]-[67] the Court said: 63. We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred. 64. It is true that the words "in relation to the matters it deals with" might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC , obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act , were intended to overcome the effect of the High Court's decision in ... Miah ... . 65. Heerey J set out in VXDC at [23]-[25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah . We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer. 66. What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. 67. Other aspects of the common law of natural justice, such as the bias rule are not excluded ... .


case_outcome: discussed

case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


case_text: The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.


case_text: I should refer to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. In the course of considering the present appeal I became concerned by the fact that the decision made no reference to s 422B , although the Tribunal hearing had apparently taken place after the commencement of that section. I wrongly assumed that as s 422B is a procedural section, it would have applied to all hearings taking place after its commencement. However Mr Knackstredt has pointed out to me that the amending legislation expressly provided that it apply only in connection with applications made on, or after, its commencement. 36 The outcome of this case is by no means satisfactory in the administration of justice. Experience suggests that it is only on rare occasions that applicants will seek to cross-examine witnesses in the Tribunal. It may be said that if it is allowed in one case, it will become more common. There may be a degree of truth in that. However it is impossible to overlook the frustration and dissatisfaction which must be caused to an applicant for a protection visa where his or her claim is significantly undermined by evidence from a witness whom he or she may not even know, and whose evidence is not to be tested in any objective way. The right to face and challenge one's accuser or opponent is a fundamental aspect of the public trial process, on both the civil and the criminal sides. Although the Tribunal process may not be adversarial, the matters which it decides are of great importance for the parties, particularly for applicants. The Tribunal cannot, and should not, assume its own omniscience. It may know little or nothing about the motivation of a witness who gives damning evidence about a protection visa applicant. Experience suggests that one way of testing such evidence is to allow cross-examination. I do not suggest that Mrs Sun should have been treated as being in any way a suspect witness. However one can understand why the appellant was not satisfied by the way in which the Tribunal decided to act to his detriment in reliance on her evidence. 37 Whilst one would not like to encourage lengthy and unnecessary cross-examination in connection with visa applications and review proceedings, each case must be approached on its merits. I am inclined to think that in this case the merits lay in the direction of allowing a limited degree of cross-examination. It is a great pity that the appellant has been deprived of that opportunity. However, given the limited availability of judicial review, I can see no basis for intervening. 38 In the circumstances the appeal must be dismissed. I once again thank counsel for their enthusiastic assistance in this matter. I will hear submissions as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 2 October 2008 Counsel for the Appellant: Mr BP Jones (Pro Bono) Counsel for the First Respondent: Mr JP Knackstredt Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 8 May 2008 Date of Judgment: 2 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1474.html


case_text: In view of the respondent's submissions, it is necessary to consider the effect of s 4(1). By the operation of s 4(1), the Agreements Act incorporates the Assessment Act subject to s 4(2). However, each Act retains its own identity and the imposition of the relevant tax is still imposed by and at the rates declared by the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 (Cth) and the Income Tax Rates Act 1986 (Cth) by reference to the Assessment Act. The incorporation has the consequence, as a matter of a drafting technique, of incorporating the text of the Assessment Act into the Agreements Act. As Lockhart J said in Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409 at 413: It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes; but it cannot be used in effect to amend the provisions of the earlier Act which is to be read as one with the later Act. Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same namely, to transpose the later into the earlier Act. See generally the Canada Southern Railway Co. v The International Bridge Co (1883) 8 AC 723 at 727, per Lord Selborne; Osborne v The Commonwealth [1911] HCA 19 ; (1911) 12 CLR 321 at 342-343, per Barton J Perpetual Trustee Co (Ltd) v Wittscheibe (1940) 40 SR (NSW) 501 at 510, per Jordan CJ; Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388, per Williams J, and the cases there cited; Tasman Timber Ltd v Minister for Industry and Commerce (1983) 46 ALR 149.


case_title: Cadbury-Fry-Pascall v Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362

case_text: In view of the respondent's submissions, it is necessary to consider the effect of s 4(1). By the operation of s 4(1), the Agreements Act incorporates the Assessment Act subject to s 4(2). However, each Act retains its own identity and the imposition of the relevant tax is still imposed by and at the rates declared by the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 (Cth) and the Income Tax Rates Act 1986 (Cth) by reference to the Assessment Act. The incorporation has the consequence, as a matter of a drafting technique, of incorporating the text of the Assessment Act into the Agreements Act. As Lockhart J said in Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409 at 413: It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes; but it cannot be used in effect to amend the provisions of the earlier Act which is to be read as one with the later Act. Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same namely, to transpose the later into the earlier Act. See generally the Canada Southern Railway Co. v The International Bridge Co (1883) 8 AC 723 at 727, per Lord Selborne; Osborne v The Commonwealth [1911] HCA 19 ; (1911) 12 CLR 321 at 342-343, per Barton J Perpetual Trustee Co (Ltd) v Wittscheibe (1940) 40 SR (NSW) 501 at 510, per Jordan CJ; Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388, per Williams J, and the cases there cited; Tasman Timber Ltd v Minister for Industry and Commerce (1983) 46 ALR 149. 42 Undoubtedly, the drafting technique of incorporation by reference may require necessary adjustments or modifications to be made in the incorporated provisions. In Cadbury-Fry-Pascall Pty Ltd v Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388 Williams J said: The tax is imposed by the Tax Act, which prescribes the rates of taxation. This Act incorporates the Assessment Act and provides that the two Acts are to be read together. My own view, to which I adhere, as to the effect of such a section, is stated in Perpetual Trustee Co (Ltd) v Wittscheibe as follows: "In re Woods' Estate; Ex parte Her Majesty's Commissioners of Works & Buildings the Court of Appeal held that if a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it. It has also been held that where two Acts are to be read together the Court must construe every part of each of them as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the latter Act has to some extent modified something found in the earlier Act: see Hart v Hudson Bros Ltd ; Phillips v Parnaby , and Williams v Tooth & Co Ltd ." (Footnotes omitted). See also McGillivray v Piper (2000) 182 ALR 282. 44 However, be that as it may, because s 4(1) is made expressly subject to subs (2), then the real issue in this case is not so much the application of the principles expressed by Williams J in Cadbury 70 CLR at 388, but whether s 4(2) brings about the result contended for by the respondent. This result does not hinge on the reading of the two Acts as one, but upon whether there is any relevant inconsistency between the Agreements Act, and relevantly here, the Assessment Act. It is to be noted that s 4(2) does not only deal with inconsistency in relation to the incorporated Act (namely the Assessment Act), but also with any Act imposing Australian tax. The obvious purpose of s 4(2) is to ensure that the Agreements Act is to prevail, but only in respect of its field of operation and according to its provisions. 45 Section 3(11) operates to determine whether the beneficiary's share of the income may be taxed in Australia in accordance with the business profits article. Such a provision has effect notwithstanding the operation of the withholding tax provisions and s 128(B)(3)(h)(ii) as contended for by the applicant. In my view, s 3(11) facilitates the operation of the business profits article which is only enabling and does not impose any tax itself. Section 3(11) is not in its terms, nor in the context in which it appears, concerned with the operation of s 128B of the Assessment Act and was not intended to so operate. Section 3(11) is not a definition provision which purports to replace the definition of "permanent establishment" for the purposes of the application of s 128B(3)(h)(ii). The work of s 3(11) is in connection with Art 7 and enables tax to be imposed in the circumstances set out in the extrinsic materials referred to by the respondent. As I had said, s 3(11) does not impose any tax in itself, or in conjunction with Art 7, assuming it applies. Section 3(11) is not directed to the operation of the withholding tax provisions and provisions that actually impose tax, and was introduced as an enabling provision only to assist in the taxing of distributions to a trust beneficiary which has a non-resident in the context of the business profits article where the concept of a permanent establishment is significant. Each of s 3(11) and s 128B can thus operate without affecting the operation of the other and without any inconsistency.


case_text: For the purposes of this case, it is unnecessary to go any further into the issues mentioned by Sheller JA in Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 at 532-533 and the question of whether the incorporation may effect an amendment to the earlier Act.


case_text: Even if the purpose for the introduction of s 3(11), or the mischief to which s 3(11) was addressed, was in fact to effectively modify or affect the operation of s 128B(3)(h)(ii), my view is that the purpose has not been implemented. I am mindful of the comments of Kirby J in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 ; (1998) 196 CLR 53 at 82 that "unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed". However, again assuming in favour of the purpose contended for by the respondent, I cannot ignore the actual words of the legislation: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235, and R v L (1994) 49 FCR 534 at 538. In my view, the text and context of s 3(11) in the Agreements Act does not allow the court to read that provision as being reasonably capable of applying to the operation of the withholding tax provisions, or more specifically to the operation of s 128B(3)(h)(ii): see generally the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 th ed, Butterworths, 2006) pp 51-58. Even adopting a position which would allow courts a flexible approach to overcome what could be said to be a drafting failure to facilitate the legislative intention, the respondent in this case cannot overcome the text and context in which s 3(11) appears. The Court would need to embark upon the task of impermissibly re-writing the Agreements Act to facilitate the result the respondent seeks. I would need to transform a provision dealing only with the scope of the taxing power into one that effectively imposes a tax.


case_title: McGillivray v Piper (2000) 182 ALR 282

case_text: Undoubtedly, the drafting technique of incorporation by reference may require necessary adjustments or modifications to be made in the incorporated provisions. In Cadbury-Fry-Pascall Pty Ltd v Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388 Williams J said: The tax is imposed by the Tax Act, which prescribes the rates of taxation. This Act incorporates the Assessment Act and provides that the two Acts are to be read together. My own view, to which I adhere, as to the effect of such a section, is stated in Perpetual Trustee Co (Ltd) v Wittscheibe as follows: "In re Woods' Estate; Ex parte Her Majesty's Commissioners of Works & Buildings the Court of Appeal held that if a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it. It has also been held that where two Acts are to be read together the Court must construe every part of each of them as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the latter Act has to some extent modified something found in the earlier Act: see Hart v Hudson Bros Ltd ; Phillips v Parnaby , and Williams v Tooth & Co Ltd ." (Footnotes omitted). See also McGillivray v Piper (2000) 182 ALR 282.


case_title: Cooke v Plauen Holdings [2001] FMCA 91

case_text: Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238] , Cooke v Plauen Holdings [2001] FMCA 91 at [25] . It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, "unwelcome conduct of a sexual nature in relation to the person harassed". Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).


case_text: It may well be that the conduct of the first respondent was not sexual harassment; further it may be the case that, for reasons submitted by the second respondent, any liability for the conduct of the first respondent could not be visited on the second respondent. Indeed, the first respondent claimed from the bar table before me that she was not an employee of the second respondent at the material time. However evaluating comprehensive arguments and evidence of the parties to determine whether the conduct of the first respondent did constitute sexual harassment and if so, whether the second respondent could be liable for the conduct of the first respondent (an issue not canvassed by his Honour other than to formulate his reasons on the assumption that the first respondent was an employee of the second respondent at all material times) would require a full hearing of the matter. As Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: ...once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.


case_title: Doyle v Riley (1995) EOC 92-748