case_title: Danieletto v Khera (1995) 35 NSWLR 684

case_text: The views of Sheppard J have not withstood the test of time. The most powerful attack came in Danieletto v Khera (1995) 35 NSWLR 684. In that case Bryson J rejected the idea that the entitlement of witnesses to be reimbursed for their costs and expenses could be established by reference to conflicting decisions from long ago affected by a Tudor statute long since repealed. He said (35 NSWLR at 688) that the matter should be approached as one of principle and, according to principle it "is a necessary incident of the exercise by the court of its subpoena power that the court should deal with the question of paying persons whose time and attention are involved in the exercise". That is, the court has an inherent jurisdiction to award in favour of a witness such costs as it thinks appropriate to compensate the witness for his time and expenses incurred in compliance with a subpoena. Thus it has been said, correctly in my opinion, that the rules that fix costs for witnesses "represent[s] but an aspect of the more comprehensive jurisdiction in respect of persons subjected to compulsion by the processes of the Court in proceedings to which they are not parties": Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, 690 per Barrett J.


case_outcome: cited

case_title: Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996)

case_text: There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia & New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.


case_outcome: applied

case_text: A "solicitor and client" costs order is to be distinguished from an order for taxation on a solicitor and own client basis. On such a taxation all costs are to be allowed, except if they are unreasonably incurred or unreasonable in amount: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59, 64. On one view the onus lies on the paying party to show unreasonableness: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991). Another view is that it is just "a question of who gets the benefit of any doubt in the mind of the taxing master": EMI Records at 71. See also Bouras v Grandelis [2005] NSWCA 463.


case_text: In this case the Registrar's order is that Boral pay Nielsens' costs and expenses of complying with the two subpoenae as taxed "on a solicitor/client basis". The Registrar's questions assume, I think, that there may be some disconformity between this order and the rules. If there is any disconformity (a matter to which I will return) it is certainly not between the Registrar's order and O 62 r 12(3). That order is concerned only with the expense (formerly "costs and charges") of attending court. That is the only kind of expense that is covered by schedule 2, where the relevant items applying to witnesses are Items 44 to 47 (inclusive). Each item only comes into play if a witness in fact attends court. So much is evident from the description of the item. In this case, of course, Nielsens was not called upon to answer the subpoena with the result that its proper officer did not attend at court. Hence O 62 r 12(3) is irrelevant to the taxation of Nielsens' costs. Nevertheless it is worth noting that if any item of costs falls within any of the four items in schedule 2 relevant to attendances, the taxing officer is required to apply that item ( Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536) unless there is an order of the court to a different effect.


case_title: Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881


case_title: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284


case_title: Gibbs v Gibbs [1952] P 332

case_text: Costs are sometimes ordered on an indemnity basis. There is some support for the view that this is equivalent to a solicitor and own client taxation: see eg Giles v Randall [1915] 1 KB 295, 298; Reed v Gray [1952] Ch 337; Gibbs v Gibbs [1952] P 332, 347. On the other hand there are cases, some of which are my own, where an indemnity cost order was made for the purpose of ensuring that the beneficiary of the order was not out of pocket by one cent. An example is when a party is joined so that there is a contradictor.


case_title: Giles v Randall [1915] 1 KB 290

case_text: More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457, 458. The purpose of the order is to allow "as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit": Smith v Smith [1906] VLR 78, 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially "a party and party taxation on a more generous scale". See also Giles v Randall [1915] 1 KB 290, 295. In practice costs taxed on this basis will be much the same as those taxed under O 27 r 4A. 14 Costs are sometimes ordered on an indemnity basis. There is some support for the view that this is equivalent to a solicitor and own client taxation: see eg Giles v Randall [1915] 1 KB 295, 298; Reed v Gray [1952] Ch 337; Gibbs v Gibbs [1952] P 332, 347. On the other hand there are cases, some of which are my own, where an indemnity cost order was made for the purpose of ensuring that the beneficiary of the order was not out of pocket by one cent. An example is when a party is joined so that there is a contradictor.


case_title: Goodwin v Storrar [1947] 1 KB 457

case_text: More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457, 458. The purpose of the order is to allow "as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit": Smith v Smith [1906] VLR 78, 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially "a party and party taxation on a more generous scale". See also Giles v Randall [1915] 1 KB 290, 295. In practice costs taxed on this basis will be much the same as those taxed under O 27 r 4A.


case_title: J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996


case_text: In any event, since the decision of the High Court in Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 where it was held that the power to award costs permits a court to award costs against a non-party, the view has been taken that s 43 of the Federal Court of Australia Act 1976 (Cth) confers a power to award costs in favour of a non-party. Thus, in O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591 Spender J considered that s 43 authorised him to make a costs order in favour of an intervenor and in King v GIO Australia Holdings Ltd (2001) FCA 1773 Moore J said that s 43 enabled him to make a costs order in favour of a person served with a subpoena.


case_title: Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178


case_title: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991)


case_outcome: referred to

case_text: It is a little surprising that after so many years of judges having made costs orders on various bases including that they be taxed on a "solicitor/client" basis it is still not clear what such an order means. The usual position in an action where costs are awarded in favour of a party is that they are taxed on a party and party basis. That is a reference to costs that have been reasonably and properly incurred and not the expense which has been actually incurred: A G Saddington Taxation of Costs between Parties (1919), cited in Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323, 333. 11 When costs are ordered to be taxed as between solicitor and client, that usually means one of two different things. If the order is made in an equity case it means that the costs are to be paid on a common fund basis. But costs ordered to be paid on a common fund basis are not determined on a uniform basis. In Daniels Chancery Practice 8th ed at 1018 it was said that when dealing with the taxation of costs on a solicitor and client basis a distinction is to be drawn where the costs were payable out of a fund belonging to the other party, or out of a common fund in which the party entitled to costs had only limited interest, or where the costs were payable out of a fund belonging exclusively to the party himself. The author also noted that if it were intended that the party should be fully indemnified against all expenses the order should say so because an order that merely required the costs to be taxed as between solicitor and client would not achieve that result.


case_title: O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591


case_title: Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464


case_outcome: approved

case_title: Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681


case_title: Reed v Gray [1952] Ch 337


case_title: Smith v Smith [1906] VLR 78


case_text: than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland.


case_title: Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500


case_title: Virgtel Ltd v Zabusky [2006] QSC 66

case_text: statement of all transactions made in all assets of all transactions made in all assets listed in subparagraphs (a) to (e) from 1 November 2000 until the date of service of this order. An order granting leave to service documents on the Respondents by email to James Conomos Lawyers email address James@jcl.com.au and/or the Respondents email addresses hvl@broadnetcommunications.co.uk and/or dokeb@skynet.be and/or global.agt@tiscali.nl and/or rgcbv@worldonline.nl. An order granting leave to represent Amalia Investments Ltd to the third Applicant assisted by the Second Applicant. BACKGROUND On 14 January 2009 Mr Zabusky filed a lengthy affidavit some 303 paragraphs in support of the interlocutory application. The affidavit sets out in some detail Mr Zabusky's evidence as to the background of these proceedings. No evidence has been filed by other witnesses in respect of these proceedings. I have already noted the identity of the applicants. The first respondent is a company incorporated and registered in the Netherlands; the second respondent is director of both the first and fourth respondents, and the third respondent is the wife of the second respondent. In summary, the applicants claim that, notwithstanding a shareholder protocol executed on 20 October 2000 between the first applicant and the fourth respondents, shares of the first applicant in the first respondent were fraudulently misappropriated as a result of actions of the second, third and fourth respondents in 2003 and 2004. The second and third applicants and the first respondent to these proceedings have already been parties to extensive litigation in the Supreme Court of Queensland in respect of matters arising from the breakdown in relations between the parties: Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316. Other than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland. Second, the assets of the respondents which are the subject of the applicants' claims include moneys ordered by the Supreme Court of Queensland to be paid to the first respondent by the applicants in related litigation: Virgtel Ltd v Zabusky [2006] QSC 66. I need make no findings at this stage as to the overlap (if any) between issues raised in the substantive proceedings in this Court and the litigation conducted in the Supreme Court of Queensland. However to the extent that an order of this Court can potentially frustrate a costs order made by another Court, no submissions have been made which suggest that such an order by this Court is either necessary or desirable. I do not accept that there is anything sinister associated with what I understand from Mr Zabusky's submissions to be the intention of the first respondent to transfer the proceeds of its successful costs orders from Australia indeed this strikes me as unexceptional given that it is likely the costs orders merely reimburse the first respondent for legal costs already paid. Further, although Mr Zabusky submitted in Court that the applicants' debt to the first respondent in respect of costs constituted an asset which could be the subject of a freezing order, I am not persuaded on these facts that it is an asset which could be the subject of such an order within the terms of O 25A. I make this observation particularly in light of the ex parte nature of the application before me. In any event, I note the proposition advanced in the Practice Note that a freezing order should exclude dealings by the respondent with its assets for legitimate purposes including payment of reasonable legal expenses. Any monies paid by the applicants to the first respondent in respect of legal costs incurred in respect of related litigation in my view falls into the category of assets used by the respondents to pay "reasonable legal expenses", and prima facie should not be the subject of a freezing order. The fact that the applicants may suffer financial difficulties conducting the litigation in this Court once they have paid the first respondent the monies ordered by the Supreme Court is not germane to the grant of a freezing order within the terms of O 25A.


case_title: Virgtel Ltd v Zabusky [2006] QSC 241

case_text: statement of all transactions made in all assets of all transactions made in all assets listed in subparagraphs (a) to (e) from 1 November 2000 until the date of service of this order. An order granting leave to service documents on the Respondents by email to James Conomos Lawyers email address James@jcl.com.au and/or the Respondents email addresses hvl@broadnetcommunications.co.uk and/or dokeb@skynet.be and/or global.agt@tiscali.nl and/or rgcbv@worldonline.nl. An order granting leave to represent Amalia Investments Ltd to the third Applicant assisted by the Second Applicant. BACKGROUND On 14 January 2009 Mr Zabusky filed a lengthy affidavit some 303 paragraphs in support of the interlocutory application. The affidavit sets out in some detail Mr Zabusky's evidence as to the background of these proceedings. No evidence has been filed by other witnesses in respect of these proceedings. I have already noted the identity of the applicants. The first respondent is a company incorporated and registered in the Netherlands; the second respondent is director of both the first and fourth respondents, and the third respondent is the wife of the second respondent. In summary, the applicants claim that, notwithstanding a shareholder protocol executed on 20 October 2000 between the first applicant and the fourth respondents, shares of the first applicant in the first respondent were fraudulently misappropriated as a result of actions of the second, third and fourth respondents in 2003 and 2004. The second and third applicants and the first respondent to these proceedings have already been parties to extensive litigation in the Supreme Court of Queensland in respect of matters arising from the breakdown in relations between the parties: Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316. Other than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland.


case_title: Virgtel Ltd v Zabusky [2008] QSC 213


case_title: Virgtel Ltd v Zabusky (No 2) [2008] QSC 316


case_text: ground of bias was not raised in the Federal Magistrates Court and, as it is a factual question, is not appropriate to be raised for the first time on appeal. In any event, it is apparent that the claim of bias is based merely upon the terms of the decision which, as counsel for the respondents submits, is extremely difficult to establish ( SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). Although the third ground was not spelled out in advance of the hearing as it should have been, the appellant referred to s 424A of the Act, linking it in a general way with a finding by the Tribunal. As the issue appears to have been raised in some fashion in the Federal Magistrates Court, it is appropriate to consider it on this appeal. The appellant's claim for protection was based upon his being a devout and active member of the underground Catholic Church in China. In support of that claim, he had produced a certificate of baptism and a certificate purporting to be from a Bishop concerning his potential and actual persecution. The relevant part of the Tribunal decision is as follows: 'I also reject the applicant's 'Certificate' signed by Bishop Yin provided that refers to restriction of freedom of belief, disruption of the mass by the PSB and that the applicant and Missionary Lin have been chased by the PSB and that Missionary Lin had been arrested. I reject the Certificate on the basis of the Country information, which I accept, which indicates that it is very easy to obtain false documents in Fujian. I also reject the applicant's comments in response concerning the special stamp placed on this document as authenticating the document. In this regard, I accept the independent evidence that it is not difficult to prepare false documents in Fuzhou (CX643). As a result of these findings, I find further that the applicant's claims regarding his role in the Catholic Church and the adverse attention shown to him as a result are inconsistent with the independent country information, and I reject them. Following on from my findings, I also find that the applicant will not face any restrictions on the practise of his religion if he were to return to the PRC. Accordingly, I find that the applicant does not have a well-founded fear of persecution based on these claims.'


case_text: for the respondent Minister accepts that the information in relation to forgery was part of the reason why the Tribunal affirmed the decision under review and therefore accepts that, prima facie, s 424A(1) of the Act was engaged. He accepts that no relevant notice was given to the appellant. It is submitted, however, that the information fell within the exception provided for by s 424A(3)(a). I accept the submission by counsel for the respondent Minister that the proper construction of that subsection has been settled by a series of Full Court decisions such that the information in question here is within that subsection and so not caught by the section ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 , (2004) 80 ALD 559; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). The appeal is dismissed. The appellant is to pay the costs of the first respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 13 October 2006 The appellant appeared in person Counsel for the First Respondent: Mr JAC Potts Solicitor for the First Respondent: Clayton Utz Dates of Hearing: 11 and 15 August 2006 Date of Judgment: 13 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1327.html


case_text: Notoriously the winds of change have been blowing through China and the extent to which they may have relevantly affected a claim such as that made by the appellant might well have been discussed in the kinds of international publications habitually resorted to by the Tribunal and referred to generally as "country information". It is true, as Mr Zipser argued for the appellant, that, not having set out what the evidence was to support his finding against the appellant, it would be open to the Court to infer that there was no such evidence at all and consequent jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. However, since I have the relevant part of the transcript it does not seem to me to be fair, in the circumstances of this particular case, to draw that inference (which in general, in the interests of transparency, courts should not be slow to draw).


case_text: A question arose as to whether, nevertheless, an order or injunction might go to the Tribunal member to cause him to comply with his obligation under s 430(1)(d) of the Migration Act 1958 (Cth) to "refer to the evidence or ... other material on which the findings of fact were based". In my opinion, in a proper case, the Court would have jurisdiction to issue such an order and ought not be slow to do so and, but for the matter to which I am about to come, I would have done so in this case: see Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, [100]. 10 Mr Smith, counsel for the Minister, points out that the Tribunal member in fact also considered the matter on the assumption that the appellant had been detained as he alleged in the second and third sentences of the quoted paragraph. 11 Mr Zipser complained of the second sentence that the Tribunal could not have used the language there set out unless it had misconceived what was involved in a claim of persecution for reasons of political opinion. Clearly enough, a public demonstration against a government-run enterprise followed by arrest by the security police, would have to be regarded as the infliction of harm for reasons of the subject person's political opinion. However, again, exercising the degree of charity to which a Tribunal member is on the authorities entitled, I think such a view of the Tribunal's words is, in their context, to misread them. It is true that the sentence, read alone, would bear the imputation and the consequent criticism identified by counsel for the appellant. But, reading the sentence in the context, particularly of the next sentence and of the paragraph that follows, I think it is fair to say that the Tribunal was not denying the potential Convention significance of demonstrating against a state employer but was asserting that, in his view, and on the other facts that he found, there was no implication arising out of what had happened to the appellant, for his future safety. There had been no indication that the appellant would wish further to agitate the matter of the cold store conditions if he returned to China, nor was there any other basis upon which he might so behave as to attract the attention of the authorities. The Tribunal member, it seems to me, was really saying that if the appellant had been detained as he claimed, there was no well-founded fear that any future harm to him might come from that fact or the underlying reason for its having occurred.


case_text: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 is authority for the proposition that a proper exercise of the discretion requires that relief should not issue in such circumstances. So much, with respect, also appears to me to be plain common sense and I regret that the appellant must fail here. 14 It will be apparent that issues were debated in this Court that were not debated before the learned Federal Magistrate but they do not require the Court to find any error on the part of the court below. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 4 September 2007 Counsel for the Appellant: Mr B Zipser Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1333.html


case_outcome: related

case_text: Section 191(2) and s 193(2) and reg 9 impose requirements as to the giving notice of the Scheme and other procedural matters. On 22 June 2007 dispensation with certain requirements was granted pursuant to s 191(5) of the Act ( Re MetLife Insurance Limited and Challenger Life No. 2 Limited [2007] FCA 937). I was carefully taken through the evidence by senior counsel for each of the applicants and was satisfied that there had been compliance with all requirements. The only debatable issue concerned typographical errors in the Scheme's summary. I was also satisfied that the Scheme complies with s 190(3) and that there was no issue with the mechanics of it. 26 The requirements of the giving of notice and some other steps taken such as telephone hotlines, websites, and so on generated a modest level of inquiry and express or implied objection from a relatively small number of policy holders, including some beneficiaries of the MetLife Retirement Fund. Some objections were misconceived and can be ignored. The only objections of substance related to the position of the affected MetLife policy holders. They were summarised as follows: "1. Concern that the Standard & Poor's rating is dropping from "AA " with MetLife to "A" with Challenger 2. Policyholder looking for security for a bulk of their retirement money concerned that Challenger is a third tier institution 3. Concern about the quality of the underlying instruments of Challenger. 4. Concern that the security of Challenger is not as good as that of Metlife. 5. Concern about Challenger's asset allocation being too risky. 6. Concern that unlike Metlife, Challenger invests funds in the stock market. 7. Concern that having started with the largest bank in the world (Citigroup), the policy is about to be transferred to Challenger which had a loss of $3/4 billion 3 years ago. 8. Concern that the Joint Actuarial Report only concludes that policyholders' benefit security will remain "adequate". 9. Policyholder looking to diversify placed a portion of their funds with Metlife and the remainder with Challenger. Concern that the transfer will result in the whole amount being placed with the one company. 10. Concern that Challenger may be a takeover target following newspaper speculations. 11. Concern that 5% return reflected a secure investment and policyholders are now being asked to assume a greater risk". 27 One objector appeared on the hearing. The essence of his position was as follows: "I served 45 years continuous service with the one organisation. In February 2004, upon advice from a senior Westpac financial adviser, I entered into a contract with Citicorp at the time for a capital guarantee type of investment, very low yield and very high security. I chose to accept this low yield, because that was the overriding my overriding decision was security of investment. At the time, I could have invested with Challenger at a higher yield. ... MetLife is higher rated than Challenger with the standard [claims] rating as double A minus for MetLife, and A or A plus for Challenger. Now, I don't understand the details of any of that other than one is higher rated than the other and, as an investor, that's all I need to know. It is unreasonable, in my view, and unethical that I should be forced into a lower rated financial institution. I see that as security being taken away from me. Throughout this morning, the counsels for MetLife repeatedly emphasise that there is no disadvantage to policyholders affected by this transfer. In my view, that's not correct. How can that be when there is a greater risk to policyholders' investments at no greater return? So there is a disadvantage, as I see it." He also drew attention to the fact that he could only redeem at a significant discount. It is relevant to note that some policies may be redeemed without discount.


case_text: The discretion to confirm the Scheme pursuant to s 194 is at large and is only confined by the purposes to be served by it in the context of the Act as a whole and Pt 9 in particular ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39 40) . The role of the Court is plainly not limited to supervising the various procedural steps to be taken, nor by any opinion that APRA cares to express. An important indication of the proper approach is the first object of the Act (s 3(1)): "to protect the interests of the owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry". ( Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at [3] ). Further, Parliament has indicated the importance of the role of the Court in Pt 9 , by identifying it as one of six principal means of effecting the objects of the Act (s 3(2)).


case_text: It is submitted that the approval of APRA is an important consideration. That may be accepted in the general way in the usual case approval of, or lack of objection by, APRA would be a necessary, but not sufficient, condition for confirmation. The statute expressly gives APRA a role in relation to Pt 9 (eg, ss 191(1) , 191 (2a), 192 and 193(3)), in addition to its other supervisory responsibilities. That role has naturally been referred to in many of the authorities (eg Re Application of Commonwealth Life Ltd [2003] FCA 637 at [13] ; Re MLC Lifetime Co Ltd and MLC Ltd (No 2) [2006] FCA 1367 at [14] ). I shall return to the position of APRA in another respect later.


case_title: Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37


case_title: Re MLC Lifetime Co Ltd and MLC Ltd (No 2) [2006] FCA 1367


case_text: The Tribunal next drew attention to the following dicta of the Administrative Appeals Tribunal (comprising Deputy President R A Layton and B C Lock and J T B Linn as members) in Re Schlatter and Defence Force Retirement and Death Benefits Authority and Brown (1985) 8 ALD 133 at 136, in a context of eligibility for defence force retirement pension and death benefits, where dependency was explained as 'a financial concept as distinct from an emotional concept...' . To similar effect in Commissioner for Superannuation v Scott (1987) 71 ALR 408, the notions of 'financial dependency', 'necessities of life' and 'lower order needs' were emphasised . Those authorities were apparently cited to the Tribunal by the Trustee for the propositions that the statutory notion of 'dependence' the subject of ss 8A and 8B of the Superannuation Act relates to financial support for 'necessities of life' or 'lower order needs' and that 'financial dependence' , in the situation of an applicant for relief meant being 'primarily, essentially or in the main dependent upon the person' . Moreover the words 'in the main' were said by the Tribunal to indicate that total dependence is not required, and further that the Tribunal indicated its expectation that so much would be less so for the notion of ' substantially dependent ' (the s 8A(4)(a) expression) than for financial dependence without qualification. As for the terms ' necessities of life ' and ' lower order needs ', the Tribunal considered on the other hand that the same should not be taken to mean ' bare necessities' , that is, the minimum needed to survive in indigent circumstances. Faull was said by the Tribunal to seemingly support the view in any event that a more reasonable interpretation should be adopted having regard to the person's station in life, and the Tribunal observed indeed in that context of its reasoning as follows: 'There is no suggestion from the evidence that the [appellant's] lifestyle was excessive, yet she appears to have been having some difficulties in meeting her normal expenditure without the financial support given by the [deceased].' 24 Nevertheless in the Tribunal's concluding view, the position here involved was properly addressed and dealt with by Scott, the reasoning whereof the Tribunal purportedly adopted. The Tribunal summarised the reasoning in Scott on what may be described as the 'wholly or substantially dependent' issue (that is, picking up reference to 'wholly and substantially ' in s 8A(4)(a)) as follows: 'In that case, the Federal Court was considering the meaning of the expression "wholly or substantially dependent" in the definition of "spouse" in s 3 of the Relevant Act (as it then was; the current s 3 does not contain a definition of "spouse"). The Court came to the view that where the word "substantially" finds its place in the phrase "wholly or substantially dependent", it must be construed having regard to the whole phrase. This was because where the word "substantially" is placed within that phrase, connotations of the term "substantially" is governed by the conjugational position of the word "wholly" immediately before it. In other words, that "substantial" does not stand alone, but is related to "wholly". On this basis, the Court came to the view that "substantially" does not simply mean something more than trivial, minimal or nominal, instead it meant in relation to a person in the expression "wholly or substantially dependent" that the person is primarily, essentially or in the main dependent upon a person (that is, upon the Deceased Member). The Court also cautioned against the use of percentage and instead suggested as the approach to consider whether the person (the Complainant) is primarily, essentially or in the main dependent upon the other person (the Deceased Member) in the context of that particular relationship.' The Tribunal proceeded to point out that the foregoing view as to whole or substantial dependence, summarised by the Full Federal Court in Scott , was applied in the context of the joint judgment of Branson and Hely JJ in Graovac .


case_outcome: discussed

case_title: Furmage v Social Security Commission (1979-1981) New Zealand Administrative Reports Vol 2 page 75

case_text: Accordingly the Tribunal reasoned that just as in normal parlance, it seemed to be unlikely that the relationship between the appellant and the deceased member, whereby they occupied separate residences, but saw one another regularly and even slept together on occasions, was one that would normally be described as 'ordinarily living together' , or necessarily 'permanent , or as having a 'bona fide domestic basis' , within par (b) of s 8A(2). The Tribunal considered that the following dictum of Barker J in Furmage v Social Security Commission (1979-1981) 2 NZ AR 75 at 80 to be here apposite, involving as it did the operation of the expression 'living together on a domestic basis' appearing in certain New Zealand social security legislation as follows, ' ... the Commission may in its discretion... regard as husband and wife, any man and woman who, not being legally married, are in the opinion of the Commission living together on a domestic basis as husband and wife and may in its discretion... terminate or reduce... any benefit already granted accordingly... '. As to the operation of that expression, the Commission contended as follows: 'Obviously all the elements of consortium need not appear in every relationship under [the legislative provision] just as they need not necessarily appear in every marriage. However, the Legislature has chosen to emphasise one element of consortium ie the "living together under one roof" aspect by its use of the words "on a domestic basis". The section requires more than ... "cohabitation"... and more than not "living apart"... [but]... has gone out of its way to add these limiting words to an otherwise fairly broad and flexible concept.' 16 As I have already indicated, the Tribunal considered that there was no qualifying marital relationship between the appellant and the deceased within s 8A(1) of the Superannuation Act essentially for the reasons I have summarised as well as cited, nor within what may be described as the deeming and illustrative provisions of s 8A(2). Accordingly in the Tribunal's opinion, whether the Trustee's decision was fair and reasonable in its operation depended on whether the circumstances of the appellant came within the scope of s 8B(3) of the Superannuation Act . So much also involved or concerned the issue whether the appellant was ' wholly or substantially dependent ' on the deceased at the time of his death within s 8A(4) , being the further issue to which I will now turn. 17 For the purposes of addressing that further issue, the Tribunal accepted, as indeed the Trustee pointed out, the extent of variation in the closeness of the relationship between the appellant and the deceased, over the years, but considered that ' ... it is the period nearest to [the time of death] that is the most important ', since ' [e]ven if earlier in the relationship the [appellant] was not so dependent, that is irrelevant if she was so dependent at the time of death ', and the Tribunal considered accordingly ' that it is most appropriate to concentrate on the last years and, having regard to s 8A(2) of the Act, the last three years, which is from 1992 on '. 43 The appellant made a further 'major complaint... that the Tribunal referred to the New Zealand case of Furmage ,' though not in relation to the passage from its reasons which I have earlier cited therefrom, but in relation to an earlier passage in those reasons at 79, where the following appears: 'However, I cannot ignore the additional words of the statute "on a domestic basis". I consider that these words require a living together under the same roof on a basis of some permanence.' It is apparent, from the Tribunal's citation of that passage, that the Tribunal had in mind part of the text of par (b) of subs 8A(2), where reference appears to ' ...ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis ' . It does not seem to me to have been inapposite to cite, whether for comparison or illustration of reasoning, that instance of judicial consideration of what was a not dissimilar text of statutory regulation. In the normal course, for a married couple to live under the same roof would at least assist exemplification as to what might constitute in certain circumstances ' ordinarily lived' by a ' ... husband or wife on a permanent and bona fide domestic basis ' with the other. Of course exceptional circumstances, such as residing in accommodation whilst absent for instance interstate on business, or in the course of visitation overseas of relatives, or in the course of hospitalisation, would normally fulfil in any event the subs 9A(5) circumstance of ' temporary absence' . 44 It follows from those conclusions that the appeal should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 April 2006 Solicitor for the Applicant: Ray Turner Solicitor Counsel for the Respondent: B Dube Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2005 Date of Judgment: 5 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/373.html


case_title: In the Marriage of Pavey (1976) 1 Fam LR11, 358

case_text: The Tribunal discussed the scope of operation of the statutory notion of 'marital relationship' and concluded that whilst there are 'various criteria to consider, there is no hard and fast rule that must be complied with in deciding whether a "marital relationship" existed' . Initially the Trustee drew attention to two authorities of the early decades of the twentieth century which exemplified traditional notions of the matrimonial relationship, but moved promptly thereafter to the more contemporary analysis of juridical decisions of the last three decades, commencing with the discussion approvingly by Evatt CJ, Demack and Watson JJ, in the context of their joint judgment In the Marriage of Pavey (1976) 25 FLR 450, of what had been earlier said In the Marriage of Todd (No 2) (1976) 25 FLR 260 at 262 by Watson J as follows: 'In my view "separation" means more than physical separation it involves the destruction of the marital relationship... Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.' The foregoing sentence '[w]hat comprises the marital relationship for each couple will vary' was adopted by the Tribunal as reflective of 'a practical, commonsense point of view' . In that context of authority, the Tribunal thought that '[t]he Complainant and the Deceased Member, for their own purposes, over a period, fashioned a relationship that suited them and they may well have regarded it as the most appropriate marriage for them in all their circumstances' , the Tribunal adding the observation that ' [i]t is even quite arguable that it may have been a "marital relationship" at common law, which is what the Complainant's lawyers seem to have been submitting' . So much was described by the Tribunal however as not determinative of the issue presently arising, and understandably so, in the light of the critical words of s 8A, which at least include '... the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide basis '.


case_text: As to the import and operation of 'wholly and substantially' appearing in ss 8A(4)(a) and 8B(3)(d), I was referred to an analysis of the statutory notion of whole or substantial dependency appearing in the reasons the joint judgment of Branson and Hely JJ in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 , being a decision made otherwise than in a matrimonial context. After reference to usages in statutory contexts of superannuation, social security and bankruptcy legislation, the following appears at [11]-[12] of that joint judgment: 'Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially". We respectfully disagree with [the primary judge's] conclusion ... that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon C that A is mainly dependent. Whilst B's contribution may be essential to A's support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking.' Although that dicta occurred of course in relation to a different legislative context, its emphasis on ' the notion of predominance ' seems to me to carry through by way of assistance to the resolution of the issues of legislative construction here arising. 14 The Tribunal considered that ' the real question is not whether the ultimate relationship of the [appellant] and the Deceased Member was a "marital relationship" at common law, but rather whether it was a "marital relationship" for the purposes of ss 8A and 8B ' of the Superannuation Act , which the Tribunal described ' as a materially different issue '. The Tribunal's reasoning continued to the effect that for the purposes of the Superannuation Act , s 8A(1) stipulates that there is a 'marital relationship if two people ordinarily lived together as husband and wife on a permanent and bona fide domestic basis at the relevant time, and further that it was ' fairly clear ' that those s 8A(1) terms such as ' ordinarily ', ' lived together ', ' permanent ' and ' bona fide domestic basis ' imported requirements over and above those that may be necessary for an undefined marital relationship, and should not be regarded as merely surplusage. There is clear force in those observations. 24 Nevertheless in the Tribunal's concluding view, the position here involved was properly addressed and dealt with by Scott, the reasoning whereof the Tribunal purportedly adopted. The Tribunal summarised the reasoning in Scott on what may be described as the 'wholly or substantially dependent' issue (that is, picking up reference to 'wholly and substantially ' in s 8A(4)(a)) as follows: 'In that case, the Federal Court was considering the meaning of the expression "wholly or substantially dependent" in the definition of "spouse" in s 3 of the Relevant Act (as it then was; the current s 3 does not contain a definition of "spouse"). The Court came to the view that where the word "substantially" finds its place in the phrase "wholly or substantially dependent", it must be construed having regard to the whole phrase. This was because where the word "substantially" is placed within that phrase, connotations of the term "substantially" is governed by the conjugational position of the word "wholly" immediately before it. In other words, that "substantial" does not stand alone, but is related to "wholly". On this basis, the Court came to the view that "substantially" does not simply mean something more than trivial, minimal or nominal, instead it meant in relation to a person in the expression "wholly or substantially dependent" that the person is primarily, essentially or in the main dependent upon a person (that is, upon the Deceased Member). The Court also cautioned against the use of percentage and instead suggested as the approach to consider whether the person (the Complainant) is primarily, essentially or in the main dependent upon the other person (the Deceased Member) in the context of that particular relationship.' The Tribunal proceeded to point out that the foregoing view as to whole or substantial dependence, summarised by the Full Federal Court in Scott , was applied in the context of the joint judgment of Branson and Hely JJ in Graovac .


case_title: Re Schlatter and Defence Force Retirement and Death Benefits Authority and Brown (1983-1986) 8 ALD 133

case_text: The Tribunal next drew attention to the following dicta of the Administrative Appeals Tribunal (comprising Deputy President R A Layton and B C Lock and J T B Linn as members) in Re Schlatter and Defence Force Retirement and Death Benefits Authority and Brown (1985) 8 ALD 133 at 136, in a context of eligibility for defence force retirement pension and death benefits, where dependency was explained as 'a financial concept as distinct from an emotional concept...' . To similar effect in Commissioner for Superannuation v Scott (1987) 71 ALR 408, the notions of 'financial dependency', 'necessities of life' and 'lower order needs' were emphasised . Those authorities were apparently cited to the Tribunal by the Trustee for the propositions that the statutory notion of 'dependence' the subject of ss 8A and 8B of the Superannuation Act relates to financial support for 'necessities of life' or 'lower order needs' and that 'financial dependence' , in the situation of an applicant for relief meant being 'primarily, essentially or in the main dependent upon the person' . Moreover the words 'in the main' were said by the Tribunal to indicate that total dependence is not required, and further that the Tribunal indicated its expectation that so much would be less so for the notion of ' substantially dependent ' (the s 8A(4)(a) expression) than for financial dependence without qualification. As for the terms ' necessities of life ' and ' lower order needs ', the Tribunal considered on the other hand that the same should not be taken to mean ' bare necessities' , that is, the minimum needed to survive in indigent circumstances. Faull was said by the Tribunal to seemingly support the view in any event that a more reasonable interpretation should be adopted having regard to the person's station in life, and the Tribunal observed indeed in that context of its reasoning as follows: 'There is no suggestion from the evidence that the [appellant's] lifestyle was excessive, yet she appears to have been having some difficulties in meeting her normal expenditure without the financial support given by the [deceased].'


case_title: Todd and Todd (No 2) (1976) 9 ALR 401


case_title: Roy v Sturgeon (1986) 11 NSWLR 454

case_text: The appellant submitted in any event that what constitutes 'living together on a bona fide basis' is a matter to be determined on the facts of each case, drawing attention thereby to dictum of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459, where the following appears: '... it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: 1. the duration of the relationship; 2. the nature and extent of the common residence; 3. whether or not a sexual relationship existed; 4. the degree of financial interdependence, and any arrangements for support, between or by the parties; 5. the ownership, use and acquisition of property; 6. the procreation of children; 7. the care and support of children; 8. the performance of household duties; 9. the degree of mutual commitment and mutual support; 10. reputation and "public" aspects of the relationship.' Those observations in Roy were made in the context of the De Facto Relationships Act 1984 (NSW), where the statutory definition of ' de facto relationship ' meant ' the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other' . Sections 8A and 8B of the subject legislation were of course enacted in 1992, and the text thereof is more specific than the earlier State of New South Wales legislation addressed in Roy . Part of the present statutory criteria addresses inter alia the s 8A(4)(d) requirement to consider evidence establishing whether ' the persons jointly owned a home which was their usual residence '. 31 In any event, the appellant's submissions continued to the effect that by limiting itself to a consideration of whether there was a common residence, the Tribunal applied the wrong test and failed to take account of other significant indicators such as what the couple themselves considered their relationship to be and what others, who knew the couple, considered the relationship to be. I have encountered difficult with that submission by the appellant, which to my perception derives insufficient support from the text of ss 8A and 8B, whether explicitly or implicitly. 32 Thereafter the appellant referred to the opinion of the Tribunal '... that when the [Superannuation] Act speaks of dependency it is referring primarily to financial dependency, so it is the sums of money paid by the Deceased Member to the Complainant in the period prior to his death that seem the most important consideration', and contended that in so finding, the Tribunal ignored the ordinary meaning of the word dependency which can include emotional and/or physical dependency. Emotional dependency is not readily susceptible of course to financial measurement. The criteria described by ss 8A and 8B are necessarily or at least expediently objective, and although subjective factors may well be sometimes relevant in evidentiary terms in order to throw light upon the satisfaction or otherwise objectively of the statutory requirement as to ' ordinarily living on a permanent and bona fide domestic basis ', it is not apparent that the same may compellingly enter the ultimate assessment or computation of a pension entitlement of a surviving spouse or partner otherwise existing pursuant to the Superannuation Act .


case_title: Albarran v Theodorou [2006] NSWSC 9

case_text: instance of such " special " circumstances emerges where " it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success ": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401 per Woodward J. Conversely, such an order may be appropriate where a view can be formed that a Respondent has no reasonable prospect of resisting the claims being advanced by an Applicant: Albarran v Theodorou [2006] NSWSC 9. The plaintiff had there commenced proceedings to remove a lapsing notice concerning a caveat and Campbell J (as His Honour then was) observed: [5] Today, the lapsing notice has been withdrawn. [6] It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. [7] The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. [8] Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order. Another instance is where a so-called " Calderbank " offer of settlement has been made and rejected: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236 at 238 to 239 per Lindgren J.


case_text: 31 August 2009 declarations of contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW) were made. On the day these declarations were sought, an outline of written submissions was provided by Counsel for the Applicant. Written reasons in support of the decision to grant declaratory relief were not sought by the parties. No written reasons have thus been published in support of the relief then granted. But, when granting the declaratory relief, the Court's attention was drawn to the observations of Reeves J in Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 at [18] to [21], [2008] ATPR 42-269 at 49,818 to 49,819 and the approach that should be taken before granting such relief. Reference was also made to the summary of the authorities by Moore J in Australian Competition and Consumer Commission v AMV Holding Ltd [2009] FCA 605.


case_title: Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 , [2008] ATPR 42-269

case_text: 31 August 2009 declarations of contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW) were made. On the day these declarations were sought, an outline of written submissions was provided by Counsel for the Applicant. Written reasons in support of the decision to grant declaratory relief were not sought by the parties. No written reasons have thus been published in support of the relief then granted. But, when granting the declaratory relief, the Court's attention was drawn to the observations of Reeves J in Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 at [18] to [21], [2008] ATPR 42-269 at 49,818 to 49,819 and the approach that should be taken before granting such relief. Reference was also made to the summary of the authorities by Moore J in Australian Competition and Consumer Commission v AMV Holding Ltd [2009] FCA 605. This was the approach pursued on 31 August 2009. Indeed, express reference was made during the course of that hearing to the observations of both Reeves J and Moore J. Whether such a hearing constitutes a hearing on the merits may be left to one side. The facts of the present proceeding were considered with sufficient care to ensure that the granting of declaratory and injunctive relief was appropriate. The present proceeding is thus not considered to be one where the Court has not sufficiently considered the merits of the claim sought to be litigated by an Applicant that it is not in a position to form a view as to prospects of success. Indeed, relief in the form of declarations and injunctions — albeit relief not opposed by the Respondents — would not have been granted in the absence of such a view being formed. The present proceeding is thus not one where it is appropriate to make no order as to costs. Neither any general principle nor the merits of the proceeding warrant such a conclusion. The Applicant commenced its proceeding and has been successful in obtaining significant relief. The fact that it has obtained that relief without the necessity for a fully contested hearing does not diminish the success it has obtained.


case_text: the exercise of this discretion, one matter to be considered is whether or not there has been any hearing on the merits. In the absence of a hearing, it has been said that each party must bear its own costs " except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284. Finkelstein J at 287 there cited with approval the following propositions formulated by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201 (citations omitted): These cases seem to me to support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial ... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... The third proposition formulated by Hill J has, however, attracted repeated comment — both in this Court and in State courts. Thus, for instance, in Gribbles, Finkelstein J observed at 287: For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. And in Boscaini v Corporation of Kensington and Norwood [1999] SASC 327 , Debelle J observed: [22] I immediately acknowledge the assistance of Hill J but suggest that proposition (3) is of limited assistance. The fact that a party has not conducted himself reasonably may disentitle him to costs. But, beyond that, the reasonableness of the conduct of the parties is not likely to assist in determining whether the applicant should recover his costs. The real question is whether the applicant had reasonable prospects of success. It seems preferable, therefore, to express proposition (3) in different terms. Depending on circumstances, where the applicant has acted reasonably in commencing proceedings, has an arguable case, and it is reasonable to conclude that the respondent has acted in consequence of the commencement of proceedings, the court may be prepared to make an order as to costs in favour of the applicant. Both of these observations were most recently addressed by Lander J in Consolidated Byrnes Holdings Ltd v Hardel Investments Pty Ltd [2009] FCA 399 at [353] to [354], 176 FCR 348 at 364. His Honour said at [359], 176 FCR at 364: ... I disagree with respect with Debelle J's decision in Boscaini ... A party may behave so unreasonably in the bringing or conducting of proceedings so that an order for costs against that party is required in the interests of justice without ever deciding whether the party had a good cause of action. See also: Residential Property Conveyancers v Bagnato [2009] SASC 71 at [22] to [25] per Layton J. Reservation has also been expressed as to the constraint suggested by Finkelstein J in Gribbles that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in " special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47]. Each case, it was there correctly observed, " must depend upon its own circumstances ". See also: Tervonen v Minister for Home Affairs (No 2) [2008] FCA 872 at [19] . The observations of Finkelstein J in Gribbles and those of Hill J in Aust-Home Investments Ltd nevertheless remain a useful guide to the general principles that may be relevant to the exercise of the discretion conferred by s 43 of the 1976 Act. The general and unconfined content of that discretion, however, remains to be exercised by reference to the facts and circumstances of each individual case. No constraint can be imposed upon the exercise of that discretion that precludes consideration of each individual case on its own merits or which seeks to give any one or other consideration any preconceived significance or weight in the exercise of that discretion.


case_text: discretion, it has long been recognised, is unconfined but must nevertheless be exercised judicially: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748. Toohey J there stated at 48,136: Subsection 43(2) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is O. 62, r. 15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders". The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12. Similarly, in Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178, Woodward J accepted that the discretion, whilst "' absolute and unfettered' ... must be exercised judicially ".


case_text: the exercise of this discretion, one matter to be considered is whether or not there has been any hearing on the merits. In the absence of a hearing, it has been said that each party must bear its own costs " except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284. Finkelstein J at 287 there cited with approval the following propositions formulated by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201 (citations omitted): These cases seem to me to support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial ... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... The third proposition formulated by Hill J has, however, attracted repeated comment — both in this Court and in State courts. Thus, for instance, in Gribbles, Finkelstein J observed at 287: For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. And in Boscaini v Corporation of Kensington and Norwood [1999] SASC 327 , Debelle J observed: [22] I immediately acknowledge the assistance of Hill J but suggest that proposition (3) is of limited assistance. The fact that a party has not conducted himself reasonably may disentitle him to costs. But, beyond that, the reasonableness of the conduct of the parties is not likely to assist in determining whether the applicant should recover his costs. The real question is whether the applicant had reasonable prospects of success. It seems preferable, therefore, to express proposition (3) in different terms. Depending on circumstances, where the applicant has acted reasonably in commencing proceedings, has an arguable case, and it is reasonable to conclude that the respondent has acted in consequence of the commencement of proceedings, the court may be prepared to make an order as to costs in favour of the applicant. Both of these observations were most recently addressed by Lander J in Consolidated Byrnes Holdings Ltd v Hardel Investments Pty Ltd [2009] FCA 399 at [353] to [354], 176 FCR 348 at 364. His Honour said at [359], 176 FCR at 364: ... I disagree with respect with Debelle J's decision in Boscaini ... A party may behave so unreasonably in the bringing or conducting of proceedings so that an order for costs against that party is required in the interests of justice without ever deciding whether the party had a good cause of action. See also: Residential Property Conveyancers v Bagnato [2009] SASC 71 at [22] to [25] per Layton J. Reservation has also been expressed as to the constraint suggested by Finkelstein J in Gribbles that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in " special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47]. Each case, it was there correctly observed, " must depend upon its own circumstances ". See also: Tervonen v Minister for Home Affairs (No 2) [2008] FCA 872 at [19] .


case_title: Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214


case_text: Respondents sought to rely upon O 62 r 36A of the Federal Court Rules as a basis for further resisting or minimising the effect of any order for costs that may be made in favour of the Applicant, but this submission was subsequently abandoned. That Rule provides as follows: Reduction in costs otherwise allowable (1) Where a party is awarded judgment for less than $100,000 on a claim (not including a cross-claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders. (2) If the Court or a Judge is of the opinion that a proceeding (including a cross-claim for a money sum or damages) brought in this Court could more suitably have been brought in another court or in a tribunal and so declares, then any costs to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order. (3) This rule does not apply to a proceeding under the Admiralty Act 1988 . The operation of that Rule, however, is " triggered by a money judgment " for less than $100,000: Collier Constructions Pty Limited v Foskett Pty Limited [1992] FCA 19 ; (1992) 33 FCR 591 at 593 per French J (as His Honour then was). His Honour further stated that "[i]n my opinion, the operation of subr (1) is not triggered by the simple grant of final declaratory relief ". His Honour, as has subsequently been held, " said nothing about the situation ... where damages, declarations and injunctions were sought, but where the only final relied awarded ... is by way of a money judgment ": Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 at [14] . The Rule is not excluded where damages are sought together with declaratory or injunctive relief: Nokia Corporation v Liu [2009] FCA 20 at [32] , [2009] FCA 20 ; 80 IPR 286 at 298 per Jessup J. Rule 36A, it is considered, has no application where the only substantive relief that is granted is declaratory and injunctive relief and where any claim for monetary relief is not pursued.


case_title: Consolidated Byrnes Holdings Ltd v Hardel Investments Pty Ltd [2009] FCA 399 , 176 FCR 348


case_title: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397


case_title: Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748


case_title: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236


case_title: Residential Property Conveyancers v Bagnato [2009] SASC 71


case_title: Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98


case_text: warrant an order for costs on an indemnity basis the circumstances must be " special " and such as to take the case out of the " ordinary " category. It " must involve behaviour associated with the conduct of the proceeding ... which is so unreasonable as to make it unjust that the other party should be limited in its recovery to party and party costs ": Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 at [4] per Lindgren J (citing NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 , 109 FCR 77 and Waverley Council v Refkin Pty Ltd [2001] FCA 1469).


case_title: Tervonen v Minister for Home Affairs (No 2) [2008] FCA 872


case_title: Gough v Myall Pty (2001) FCA 1692

case_text: The applicant sought to introduce fresh evidence before me providing an alternative version of events, from the applicant's perspective, on the morning of 2 May 2005 when she was putatively served with the petition. However, the whereabouts of the applicant on that morning have already been exhaustively argued before his Honour. The applicant has already, it seems, given one version of events on that morning which has been dismissed by the learned Federal Magistrate, and is now seeking to put forward another version. In my view comments of Gray J in Gough v Myall Pty (2001) FCA 1692 at par 14 are pertinent to this case, namely, 'the appeal system does not allow a party to make repeated attempts to change findings of fact by introducing evidence that could have been introduced at an earlier stage.' 40 In my view, it is prima facie unlikely, for the reasons given by his Honour, that the Court would make any finding other than that the applicant was served with the second creditor's petition at her premises at Wooloowin on the morning of 2 May 2005. His Honour was satisfied on the evidence of the process server that the applicant had been served with the second creditor's petition. On the evidence before me I would not disturb the finding of the learned Federal Magistrate on the issue of whether the applicant was actually served with the second creditor's petition. 41 The applicant has also claimed that she now has additional resources, in the form of refinancing from other creditors. It is difficult to know how to view this evidence. While it may be evidence of solvency, the fact of the matter is that, if the applicant has recently managed to obtain additional credit while she has been a bankrupt (TS p 57 ll 24-28), her actions are likely to have been in breach of s 269 of the Act and hence unlawful. I make no finding in relation to this issue. 42 In my view the case put to me by the applicant does not on its face disclose any basis upon which I would disturb the findings of the learned Federal Magistrate on appeal. His Honour heard the evidence before him, and refused to annul the bankruptcy of the applicant under s 153B(1) of the Act. The applicant has made submissions concerning comments of his Honour in refusing to exercise his discretion in the applicant's favour, including the view of his Honour that the applicant's affairs were deserving of further investigation, as she failed to disclose assets to the trustees, failed to comply with her obligations under the Act, and there was uncertainty with respect to ownership of assets. In view of the nature of the case, I am not prepared to hold that his Honour was in error in so finding. As stated succinctly by the learned authors of McDonald Henry and Meek Australian Bankruptcy Law and Practice at par 153B.0.07: 'The discretionary consideration is an important factor and is often overlooked by applicants. Despite an applicant demonstrating that the sequestration order ought not to have been made or the debtor's petition ought not to have been presented the discretionary factors may result in the application being refused.' 43 On review of the case and the evidence before me, in my view an appeal from the decision of the learned Federal Magistrate would be bound to fail. I find there are no special reasons within the meaning of O 52 r 15(2) to extend time to the applicant to file her notice of appeal from the decision of Jarrett FM. 44 Accordingly, I dismiss the application with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier J. Associate: Dated: 18 April 2006 Counsel for the Applicant: Andrew Lyons Solicitor for the Applicant: Douglas Law Solicitor for the Respondent: Hawthorne Cuppaidge & Badgery Counsel for I & L Securities Pty Ltd: F Gerard Forde Solicitor for I & L Securities Pty Ltd: Ingwersen & Lansdown Counsel for the Trustee: Cameron McKenzie Solicitor for the Trustee: Deacons Lawyers Date of Hearing: 16 March 2006 Date of Judgment: 18 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/401.html


case_text: As pointed out by the Full Court in Heinrich v Commonwealth Bank of Australia (2003) FCAFC 315 at par 20, 'The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled... Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made.' 33 On the facts of this case, the applicant has committed an act of bankruptcy. There appears to be no dispute that the applicant was indebted to the respondent, that the respondent obtained a final judgment for the sum in question, and that this final judgment formed the basis of the bankruptcy notice. That debt, and that judgment are not in any way being impugned in this matter. Failure to comply with the bankruptcy notice in turn resulted in a sequestration order being made against the applicant. I have already recounted in some detail the background to this debt. 34 The applicant has submitted before me that, notwithstanding that she did not pay the debt, she was nonetheless solvent that is, able to pay all of her debts as and when they became due and payable. The applicant has also sought to demonstrate that her income exceeded her expenditure during the period when the sequestration order was made, and indeed the applicant has claimed that she had estimated gross annual earnings net of expenses of $90 000 (TS p 23 ll 35-38). However it became clear during cross-examination before me that the applicant has little or no income, and had little or no income at the date of the sequestration order (for example, TS p 15 l 3). Further, under cross-examination by counsel for I & L Securities it became apparent that the applicant's expenses far exceeded any earnings during this time (TS pp 25-32).


case_text: At the same time, it is vital to constantly keep in mind that the power exercised by the learned Federal Magistrate at first instance under s 153B(1), is discretionary. As pointed out by Dixon, Evatt and McTiernan JJ in the well-known case House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505, in the case of an appeal against an exercise of discretion, the appellate court must not attempt to simply substitute its opinion for that of the court at first instance. It must appear that some error has been made by the judge at first instance in exercising discretion, before the appellate court can and should interfere in that decision. 31 The merits of the applicant's proposed appeal case were argued in detail and at length during the hearing before me. The key matters upon which the case prospectively appears to turn are: • Whether the applicant was actually solvent at the date of the sequestration order, and therefore whether the order should not have been made; • Whether the applicant was actually served with the second creditor's petition; and • The applicant's claim that she now has additional resources, in the form of refinancing from other creditors.


case_text: The Full Court in Jess v Scott emphasised that, given the discretionary nature of the Court's power in O 52 r 15(2) to relax the requirement of the general rules, the power should not itself 'become entangled in a web of rules spun out of the Court's discretionary decisions'. (p 20) However, there are a number of guiding principles which may assist the court in exercising its discretion. These were described by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and adopted by the Full Court in Parker v The Queen at par 6, as follows: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.


case_title: Jess v Scott (unreported Full Court of the Federal Court, Lockhart, Sheppard and Burchett JJ, 4 November 1986)

case_text: Prima facie , time limits set by the Federal Court Rules , including those with respect to notices of appeal, are there to be observed by the parties. However, O 52 r 15(2) vests a discretion in the Court to extend the time during which a notice of appeal may be lodged, in order to avoid injustice where a party has missed a prescribed deadline for lodgement ( Parker v The Queen [2002] FCAFC 133 at par 13). 'Special reasons' must be demonstrated in order for this rule to be invoked. In considering the meaning of this term in Jess v Scott (unreported Full Court of the Federal Court, 4 November 1986), the Full Court said: 'It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (pp 18-19) 6 The Full Court in Jess v Scott emphasised that, given the discretionary nature of the Court's power in O 52 r 15(2) to relax the requirement of the general rules, the power should not itself 'become entangled in a web of rules spun out of the Court's discretionary decisions'. (p 20) However, there are a number of guiding principles which may assist the court in exercising its discretion. These were described by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and adopted by the Full Court in Parker v The Queen at par 6, as follows: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.


case_title: Kalaba v R (unreported, 13 September 1996, Finn J)

case_text: In my view, the key question is whether, prima facie , the merit of the applicant's case is such that the Court should exercise its discretion to allow additional time to file a notice of appeal. To paraphrase Finn J in Kalaba v R (unreported, 13 September 1996 at p 6, quoting in turn the Full Court in Jones v The Queen (unreported) Federal Court, 17 August 1984), has the applicant demonstrated that her appeal may have sufficient prospect of success to make it just that she should not be allowed to proceed with it? The other side of this coin is clearly that it is potentially unjust to all parties to this matter to allow the applicant to proceed with a case, where there are not sufficient prospects of success, but which would cause all parties to perhaps futilely incur costs, and introduce improper delay into the affairs of the parties. 29 It is appropriate that I should then consider the prima facie merit of the applicant's appeal case should she be granted leave to now file her notice of appeal.


case_title: Parker v The Queen [2002] FCAFC 133


case_text: The applicant has also claimed that her apparent excess of assets over liabilities means that she was solvent at the relevant time: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670. I note that, to some extent, it is difficult to know exactly what assets the applicant owns, as there appears to be disputes about, for example, various vehicles and boats. Further, I note, as did his Honour, that the applicant has apparently concealed property, including a china collection, for fear that it would be removed from her. 36 In my view, the applicant has not established a prima facie case that she was solvent at the date of the sequestration order upon which her bankruptcy is founded.


case_title: Stankiewicz v Plata (2002) FCA 1185

case_text: In Stankiewicz v Plata (2002) FCA 1185 at par 19 the Court held that in determining whether a sequestration order ought not to have been made, the court is entitled to consider not only the case as disclosed at the time the order was made, but as it would have been disclosed had all the true facts been before the court on the making of the order. In my view in the case before me, no new facts of substance, relevant to the making of the sequestration order, have emerged since the hearing before the learned Federal Magistrate. In my view the evidence before me shows that it is likely the applicant was not solvent at the date of the sequestration order. I note that his Honour also considered evidence in relation to solvency of the applicant during the relevant period. His Honour, in light of evidence before him, exercised his discretion and refused to annul the applicant's bankruptcy. There appeared on the case before me to be little or no variation in the financial position of the applicant over the period before and after the making of the sequestration order. 38 No evidence has been brought before me which would prima facie incline me to disturb his Honour's findings on appeal in relation to whether the sequestration order ought to have been made.


case_text: The notice of appeal filed by Mr Lim does not identify a question of law capable of constituting the subject matter of his purported appeal (see, Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [26] - [34] ). The factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law. Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal. The references in the notice of appeal to the law of "attendance" and "reasonable excuse" do not assist Mr Lim in this regard. 13 Nonetheless, as Mr Lim does not have the benefit of legal representation, I have considered it appropriate to approach the issue of the competence of the appeal by giving consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend that document. Mr Lim identified the following matters which he characterised as legal errors: (a) it was not legally possible, he argued, for the Tribunal to find that he had breached his Activity Agreement on 27 April 2007 (and possibly on other occasions) as he had received emails from WorkDirections requiring him to make-up missed days; (b) it was not open to the Tribunal, he argued, to find that he had breached one of his Activity Agreements unless his case manager, Rebecca, had asserted that he had done so; (c) he was, he argued, only legally obliged to attend at WorkDirections if his case manager, Rebecca, was present on that day and she was not present on one of the days on which the Tribunal found that he had breached his Activity Agreement without reasonable excuse; (d) he argued that WorkDirections imposed an unlawful condition on him by requiring him to find job interviews for himself; and (e) he argued that his case manager, Rebecca, made an administrative error by requiring him on short notice to make up for missed attendances. 14 None of the above alleged legal errors gives rise to a question of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal. They each concern an issue not raised by him before the Tribunal. More importantly, they reflect a clear misapprehension of the obligations imposed on Mr Lim by the agreements signed by him.


case_text: The test for permissible inspection is not whether the documents ought to be admitted into evidence ( National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 385-386 per Glass JA; Albert Hadid v Lenfest Communications Inc [1998] FCA 470 per Lehane J). Mr Maganga no longer seeks to uphold this aspect of the Tribunal's reasons where it held that inspection of the summonsed documents should not occur in circumstances where they may not ultimately be admissible.