case_text: Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2002] FCAFC 223 ; (2002) 193 ALR 629 the Full Court made some helpful observations about comparative advertising. Gillette and Energizer manufactured and distributed batteries. Gillette used the brand name "Duracell", and supplied alkaline batteries. Energizer used the brands "Energizer" and "Eveready". It supplied both alkaline and carbon zinc batteries. Alkaline batteries last longer but are more expensive than carbon batteries of the same size. Energizer sought to restrain Gillette's television advertisement which claimed that the Eveready Super Heavy Duty Battery (a carbon zinc battery) "just can't keep up", and that "with up to three times more power Duracell will always win", on grounds that included that the advertisement did not reveal that there was a substantial price differential between the two batteries, and thus consumers could be misled in comparing the value of the two. On that basis the trial judge granted an injunction. The Full Court allowed Gillette's appeal. Heerey J said at [20]: The characterisation of advertising as comparative does not of itself have legal significance, or create any kind of presumption in favour of a party alleging a breach of Pt V of the TPA. There is no basis in the TPA for regarding comparative advertising as an inherently disreputable form of commercial conduct, to be viewed with suspicion by the courts. On the contrary, to the extent that comparative advertising provides consumers with accurate hard facts about competing products, it assists in the making of better informed consumer choices and thereby results in more effective competition. Of course, the more actual comparisons that are used, the more potential there is for error (and half-truth). So advertisers have to be careful ... Assertions of factual inaccuracy have to be carefully considered by courts in comparative advertising cases, no differently from any other cases. Heerey J then rejected Energizer's contention that to compare the products without mentioning the price was not to make a full comparison and was thus unfair. His Honour said at [22]: [The] textual basis [for the contention] is the heading of Div 1 of Pt V , "Unfair practices". But to use general notions of unfairness, which bring to mind the concept of unconscionable conduct appearing elsewhere in the TPA, is to put an unwarranted gloss on the plain words of provisions of Pt V such as ss 52(1) and 53 (a). Provided the factual assertions are not untrue, or misleading half-truths, an advertiser can lawfully compare a particular aspect of its product or service favourably with the same aspect of a competitor's product or service. His Honour then considered an example that had been discussed in argument where airline X advertised that its economy class seats provide 20 cm more leg room than those of airline Y. If that claim is true, s 52 does not oblige airline X to provide in its advertisement detailed information as to the other factors which might influence consumers choosing between airlines. And if airline Y wanted to advertise that its fares were cheaper, its aircraft more modern, and its flights more frequent, that would be legitimate so long as "no untruths or misleading half-truths are stated": at [23]. Returning to the facts before him, Heerey J concluded at [24]: A consumer, informed by the advertisement (correctly, it must be assumed for present purposes) that the Duracell battery lasts three times longer than the Eveready Super Heavy Duty battery, can make his or her decision at the point of sale whether the extra power of the Duracell is worth the higher price. I do not see how it could be said that such a consumer has been misled or deceived. Indeed, it would be inconsistent with the policy and objectives of the TPA to restrict a trader from publicising, truthfully, a feature of its product which is superior to the same feature of a competitor's product. His Honour went on to explain why that was so. The other members of the Full Court were of the same opinion: Lindgren J at [53] (pages 646-647 point (7)) and Merkel J at [85], [91] and [93]. THE WITNESSES Polaris Trevor Guest established Polaris in 1981. It first manufactured SoundShield in 2001. Mr Guest has over 25 years experience in the sale of telecommunications equipment in Australia. He has no formal technical or scientific qualifications. However his experience in the manufacture, importation and sale of this equipment has exposed him to a wide variety of technical matters associated with sound regulation. He said he is familiar with the various technical standards that apply to telecommunication devices in Australia. He has personally installed SoundShields and other telecommunications equipment in a range of customer premises, has programmed SoundShield on numerous occasions and is familiar with the device and the settings contained within it. Mr Guest swore four affidavits and wascross-examined at length. He came across as an honest witness. On one occasion, when he was describing a test he had done of SoundShield, he seemed to gild the lily by describing it as a comparative test of SoundShield and M15D. However, I think this was attributable to confusion on his part and was not an attempt to mislead the Court. He conceded that he was wrong to characterise his test as a comparative one. Mr Guest accepted that his lack of formal technical qualifications meant he could not express authoritative opinions about scientific, electronic and audiological matters. However, his long involvement in the acoustic protection device industry, his participation in the formulation of industry standards, and his hands on experience, provided sufficient basis for the evidence he gave as to the industry, the general effect of the standards and the mechanisms of SoundShield. I have emphasised the word "general" because Mr Guest was not seised of the detail of the standards or of the technical attributes of the various devices. The best example of this was his confusion about the headset profiles, when he was at odds with his own experts. In addition, Professor Blamey took exception to many of Mr Guest's measurements, in particular his unexplained transition between the different types of decibels dB, dBA, dB SPL at DRP as though they were all the same. Thus, on matters of a technical nature, I do not regard him as having the expertise to express opinions that can compete with those of acknowledged experts. Ben Minski joined Polaris in 2004 as an account manager. More recently he has been the project/implementation manager of the major roll outs of SoundShields into call centres nationally. His experience includes installing over 20,000 SoundShields in approximately 80 call centres Australia wide, and he was consequently familiar with the device, the different technical settings contained within it, which settings best suit particular technical environments and users, and what happens if a device is not correctly customised to its particular environment and user. His evidence was largely uncontroversial. He was cross-examined. I thought him an honest witness, a conclusion that was confirmed by the fact that on one topic his evidence did not assist Polaris' case. Rodney Thompson was in charge of the technical side of Polaris' business. He has tertiary electronic engineering qualifications, and experience as an engineer with Telstra and since 2006 with Polaris. He is familiar with the measurement of sound signals and signal levels generally, the various telecommunications standards in use in Australia, and what those standards mean in technical terms for the Australian telephone network and devices that operate in conjunction with it. He was cross-examined, and the concessions he made in the course of his evidence made it clear that he was giving a truthful account of matters on which he spoke.


case_outcome: cited

case_title: Hoover (Australia) Pty Ltd v Email Ltd [1991] FCA 511 ; (1992) 104 ALR 369


case_text: It does not appear that either party drew her Honour's attention to the judgment of the High Court in CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172. In that case McHugh, Gummow and Callinan JJ at [102] indicated that the circumstances in which the discretionary power of the Family Court, and by inference the analogous power of the Federal Court, to receive further evidence on appeal should be exercised are to be determined as a matter of statutory construction and ' [t] hat matter should not be approached as if the common law procedures which gave rise to the principles laid down in such authorities as Wollongong Corporation conclusively indicate the proper construction of the statutory provision.' 19 The only reason for referring here to Mr Murdaca's desire to adduce further evidence on his appeal is that the affidavit which he sought to have received in evidence makes reference to his obtaining a stay of execution of the judgment debt and includes as an annexure a copy of the stay order obtained by him. Although the fact and date of the stay order had been established before the Federal Magistrates Court, the content of the affidavit which Mr Murdaca sought to have received in evidence on his appeal could have been seen as throwing light on at least one of the bases on which he sought to have the judgment of the Federal Magistrates Court set aside.


case_title: De Robillard v Carver [2007] FCAFC 73

case_text: Stone J had earlier made an order that the sequestration order against Mr Murdaca's estate be stayed pending the outcome of the appeal to this Court, or further order of the Court, on certain conditions. Those conditions were designed to ensure that the value of Mr Murdaca's interest in a property, which I understand to be his home, was maintained and that he delivered up vacant possession of that property to his trustee in bankruptcy should his appeal be dismissed. I note, incidentally, that her Honour ought not to have been invited to stay the sequestration order (s 37(2) of the Bankruptcy Act 1966 (Cth)). The appropriate order was a stay of proceedings under the sequestration order ( De Robillard v Carver [2007] FCAFC 73 at [125] ). 3 Mr Murdaca has not given vacant possession of the property to his trustee in bankruptcy and has been served with a writ of possession. He now seeks orders allowing him to remain in possession of the property pending the determination of an application made by him to the High Court for special leave to appeal from the judgment of this Court. Presumably, if he obtains special leave to appeal, he will make a further application for an order to maintain the status quo. 4 The appeal to this Court from the judgment of the Federal Magistrates Court was heard by a single judge pursuant to a direction made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The Chief Justice has now directed that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single judge. It seems to me that the order now sought by Mr Murdaca invokes the appellate jurisdiction of the Court in relation to his appeal and thus that I may determine the present application and need not refer it to a Full Court.


case_outcome: applied

case_text: Mr Murdaca's application is, or at least is akin to, an application for a stay to preserve the subject-matter of litigation pending an application for special leave to appeal. In Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681 at 684 Brennan J made clear that such an application should in the first instance be made to the court below which is familiar with the matter rather than to the High Court. 6 In Burgundy Royale Brennan J at 685 said: 'In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.' 7 Subject to the second of the above considerations having no relevance, the above passage provides valuable guidance as to the proper approach to be taken on the present application. I understand Brennan J's reference to the prospect of a grant of special leave being 'substantial' to be intended to convey no more than that there should be a real, as opposed to a remote or insubstantial, possibility of special leave being granted. 8 For the following reasons it seems to me that Mr Murdaca's application for special leave could be understood to involve a question of law that is of public importance because of its general application. It also seems to me that the interest of the administration of justice could be understood to require consideration by the High Court of the judgment because authoritative guidance from the High Court, or indeed the Full Court of this Court, is not presently available on that question of law (s 35A of the Judiciary Act 1903 (Cth)). 9 The act of bankruptcy on which the creditor's petition was founded was Mr Murdaca's alleged failure to comply with a bankruptcy notice. The bankruptcy notice required payment of a judgment debt within 21 days after the service of the notice. At the time of issue and service of the bankruptcy notice, execution of the relevant judgment had not been stayed (see s 41(3)(b) of the Bankruptcy Act ). However, an ex parte stay of proceedings in respect of the judgment was granted within the period of 21 days after the service of the notice; that is, before the commission by Mr Murdaca of the purported act of bankruptcy on which the creditor's petition was founded. 21 I conclude that Mr Murdaca's prospects of success on his application for special leave are sufficiently real to be characterised as substantial in the sense discussed in Burgundy Royale [1986] HCA 84 ; 161 CLR 681 (see [7] above). 22 Neither the trustee nor the petitioning creditor pointed to any loss or other prejudice that would be suffered if the stay were granted, provided that the value of Mr Murdaca's interest in his home was maintained. After taking the opportunity to review Mr Murdaca's records of payments made by or on his behalf, including payments of rates, utility charges, strata levies and mortgage instalments, the trustee did not oppose the grant of a stay of proceedings under the sequestration order so as to allow Mr Murdaca to retain possession of his home. 23 In considering the balance of convenience I note that the reasons of the Federal Magistrate suggest that Mr Murdaca's only source of income is a disability pension and that his assets are limited to a car valued at $300 and his interest in his home. His home secures repayment of a mortgage debt. The judgment debt is modest when compared with the equity apparently held by Mr Murdaca in his home. If the property is sold, costs, including agent's fees and commission and trustee's remuneration, will be incurred. Should Mr Murdaca ultimately succeed on an appeal to the High Court it may prove impossible for the status quo to be restored.


case_outcome: distinguished

case_text: The judgments of the Full Court of the Federal Court in Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 and of Weinberg J in Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260 similarly were not concerned with a situation in which a judgment was stayed between the date of service of a bankruptcy notice and the expiry of the time provided for compliance with the notice.


case_title: Makhoul v Barnes (1995) 60 FCR 572

case_text: In any event, the issue identified above is a question of law capable of being addressed on the evidence that was adduced before the Federal Magistrate. It does not appear that it was argued before his Honour that the dismissal by a Registrar of Mr Murdaca's application to have the bankruptcy notice set aside placed any impediment in the way of his challenging the alleged act of bankruptcy on which the creditor's petition was founded ( Makhoul v Barnes (1995) 60 FCR 572).


case_outcome: referred to

case_text: The authority that should have been drawn to the attention of the Federal Magistrate is Schekeloff; Ex Parte Schekeloff v The Hopkins Group Pty Limited (1989) 22 FCR 407. In that case Burchett J gave consideration to a factual situation relevantly indistinguishable from the present. His Honour concluded that, for the purposes of s 40(1)(g) of the Bankruptcy Act , the time for consideration whether a judgment on which a bankruptcy notice is founded has not been stayed is the time of issue, or at the latest, service of the notice. In reaching this conclusion Burchett J placed considerable weight on Re Dennis; Ex Parte Dennis (1888) 60 LT 348, a decision of the Court of Appeal concerning the service of a garnishee order nisi on the judgment debtor after the service of a bankruptcy notice on him.


case_text: Schekeloff has been referred to in a number of Federal Court judgments with apparent approval, but in none that I have been able to identify has a comparable factual situation been under consideration (see, for example, Re Frasersmith; Ex Parte J Blackwood & Son Limited (1992) 36 FCR 144 (Beaumont J); Re Roberts; Ex Parte Bower (1994) 48 FCR 350 (Einfeld J); Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70 (Spender J); Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275 (Drummond J)).


case_title: Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70


case_text: I turn first to the authorities to which the Federal Magistrate relevantly referred. Re Moss; Ex parte Tour Finance Ltd [1969] ALR 285 is a decision of Gibbs J sitting as the Federal Court of Bankruptcy. The case concerned whether a stay that had been lifted before the issue of a bankruptcy notice nonetheless prevented the judgment from being described in the bankruptcy notice as a judgment 'the execution of which had not been stayed' . His Honour concluded that it did not. It was in that context that Gibbs J described the time of the issue or the service of the notice as the critical time for the purpose of s 41(3)(b) of the Bankruptcy Act .


case_title: Re Roberts; Ex Parte Bower (1994) 48 FCR 350


case_title: Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275


case_title: Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572


case_text: The applicant would not receive a fair trial in the Federal Magistrates Court. Leave to appeal 14 Although s 24(1A) Federal Court Act does not require any particular test to be satisfied ( Lomas v Winton Shire Council [2002] FCAFC 413 at [15] ), issues relevant to the exercise of discretion by the Court in granting leave to appeal are whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] . 15 The applicant in this case is self-represented, and as is sometimes the case with self-represented litigants has adopted a "scatter-gun" approach to her case. The applicant has cited a significant number of grounds in support of her application for leave to appeal. However in my view key questions are those I have stated in the previous paragraph, and in that light it is clear that the application for leave to appeal must be dismissed because I find no fault in his Honour's reasoning. 16 The decision of the Federal Magistrate was to refuse an application for a stay of proceedings listed for hearing on 8 December 2008. The applicant's grounds in support of her application are largely irrelevant to that decision. In my view the only grounds of any substance or relevance to the application before me are: a. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George had earlier in 2008 commenced other proceedings in the Supreme Court of Queensland; and b. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George could not be ready for trial commencing 8 December 2008. 17 In relation to the Supreme Court proceedings, the applicant has, in my view, misunderstood the basis upon which his Honour found that the Federal Magistrates Court had exclusive jurisdiction to hear the matter which the applicant sought to bring before the Supreme Court of Queensland. I also consider that Ms George has misunderstood the relevance of principles articulated in Fencott v Muller and Philip Morris to these proceedings. 18 Section 27 Bankruptcy Act provides: (1) The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than: (a) the jurisdiction of the High Court under section 75 of the Constitution ; or (b) the jurisdiction of the Family Court under section 35 or 35A of this Act. 19 In Meriton Apartments in discussing the jurisdiction of the federal courts under s 27(1) , Greenwood J observed: [111] In Scott v Bagshaw [2000] FCA 816 ; (2000) 99 FCR 573 , the Full Court of this court again considered the source and scope of the court's jurisdiction in bankruptcy in proceedings in which the trustee of a family trust asserted an equitable charge over three properties in support of a loan made to the registered proprietors, a husband and wife. The trustees in bankruptcy of the estate of the husband denied any entitlement in the appellant trustee to an equitable mortgage of Torrens title land and contended that the appellant's claim related to a provable debt under s 82 of the Bankruptcy Act . The appellant required leave under s 58(3)(b) to commence the proceeding. [112] Applying the earlier authorities, the court described s 27 as the "seminal" source of the court's jurisdiction in bankruptcy [17]. The court held that s 27 fell to be understood in context and that s 31(1)(f) elucidated what the drafter "had in mind as falling within 'bankruptcy' in s 27(1) as defined in s 5(1)" [18]. Thus, applications declaring for or against the title of the trustee to any property would be encompassed within the s 27 concept of jurisdiction in bankruptcy. The court distinguished Sutherland v Brien on the ground that s 31(1)(f) made it plain that as against the trustees in bankruptcy, the proceeding before the Full Court was within s 27 as a proceeding under or by virtue of the Bankruptcy Act . In Green v Schneller [2001] NSWSC 897 , Barrett J after considering Sutherland v Brien and Scott v Bagshaw made this observation at [22]: When persons become bankrupt, it is necessary for courts to determine all kinds of questions about the consequences. Many of those questions will depend for their answers on the provisions of the Bankruptcy Act . One class of such questions relates to the nature of the rights of persons to property. Austin J held that nothing in the Bankruptcy Act precludes the exercise in such cases of the well established jurisdiction of courts other than those mentioned in s 27(1) "to determine and declare rights to property and make orders as to its destination". But that undoubted jurisdiction will yield to any aspect of the jurisdiction for determination and declaration of such rights which the Bankruptcy Act itself places in the hands of s 27(1) courts. In Scott v Bagshaw the Full Federal Court noted that among the matters so placed in the hands of those courts, is "applications to declare for or against the title of the trustee to any property". Because this is one of the matters s 31(1) of the Act requires "the Court" to hear an open court, it is identified as a matter within the definition of "bankruptcy" and thereby seen to be within s 27(1). That aspect of the general jurisdiction "to determine and declare rights of property and to make orders as to its destination" which entails "applications to declare for or against the title of the trustee to any property" is accordingly reposed in s 27(1) courts alone. [113] In the result, Barrett J concluded the Supreme Court of New South Wales did not have jurisdiction to entertain a motion for leave pursuant to s 58(3)(b) to continue the proceeding. 20 The facts of this case bear strong similarities to those in Scott v Bagshaw . It appears that Ms George, who is a bankrupt, has sought to commence proceedings in the Supreme Court of Queensland, claiming that property which would otherwise fall within the terms of her bankruptcy, and to which accordingly her trustee in bankruptcy would have title, is actually the subject of a separate trust, and therefore outside the terms of her bankruptcy. In my view, this is clearly an "application to declare for or against the title of the trustee to any property" for the purposes of s 31(1)(f) Bankruptcy Act . To paraphrase the words of the Full Court in Scott v Bagshaw at 577: ...the undoubted effect of an order being made in the terms sought by [Ms George] would be that a declaration would be made against the title of the [trustee in bankruptcy]. Upon the [trustee in bankruptcy] becoming trustee, the title to the properties...became vested in them: subs 58(1) and s 132 of the Act. The consequence of any such order must therefore be that it would have a necessary adverse effect on the title of the [trustee in bankruptcy] to the extent that it established title in [Ms George as trustee]. That is a matter that falls within the jurisdiction in bankruptcy.


case_text: Any further or such order the Court deems fit. 4 The application before me arises from a hearing in the substantive proceedings on 18 November 2008 before Burnett FM, where Ms George sought a stay of hearing of particular matters listed for hearing on 8 December 2008. The matters Ms George sought to have stayed in the substantive proceedings were as follows: 1. The Heads of Agreement dated 19 February 2008 remain valid and enforceable. 2. As at 24 February 2006, the legal and beneficial ownership of lot 30 on SP145714 County of Stanley, Parish of Moggill, title reference 50440445 (the Landing Place property) vests in the applicant as trustee of the bankrupt estate. 3. There is no trust in favour of Alexandra George, the bankrupt, or any other person in respect of the Landing Place property; and 4. As at 24 February 2006 the legal and beneficial ownership of items listed in schedule A vests the trustee of the bankrupt estate. 5 These matters related to paras 1, 2, 3 and 8 of the trustee in bankruptcy's Amended Application filed 7 November 2008. 6 The application for a stay in the substantive proceedings before his Honour resulted from the commencement of separate proceedings by Ms George in the Supreme Court of Queensland (the Supreme Court proceedings) in April 2008. The Supreme Court proceedings involved claims by Ms George for declarations that she was trustee for her son in respect of property the subject of the substantive proceedings, in particular the Landing Place property. I note that the learned Federal Magistrate found (at [9]) that there was a common substratum of facts and issues arising in relation to claims by Ms George in the Supreme Court of Queensland, and claims by the trustee in bankruptcy in the substantive proceedings. This finding is not disputed by the respondents before me, although in Court this morning Ms George disputed his Honour's finding that she was not necessarily in disagreement with this finding. I understand from submissions of Counsel for the trustee in bankruptcy that, after the trustee in bankruptcy was joined as a party to the Supreme Court proceedings by order of the Court, there was commonality between the parties to the Supreme Court proceedings and the parties to the substantive proceedings. The joinder of the trustee in bankruptcy to the Supreme Court proceedings is not in dispute. 7 The application brought by Ms George before his Honour for a stay of the substantive proceedings was listed for hearing before his Honour on 18 November 2008. It is not in dispute that, on that morning, Ms George applied for an adjournment of the stay application for a number of reasons including (in summary) a power cut which had affected her ability to be ready for the hearing, the fact that she had been served with material by the respondents approximately 2 hours 20 minutes late, and that she was ill on that day with medical certificates to support that assertion. 8 The Federal Magistrate refused to adjourn the hearing of Ms George's application for a stay and, after hearing the application, refused it. His Honour's reasons appear in Fletcher & George (No 5) [2008] FMCA 1628. Fletcher & George (No 5) 9 In dismissing the application for a stay of the substantive proceedings the key findings of his Honour can be summarised as follows: • There are presently on foot in the Federal Magistrates Court and the Supreme Court of Queensland proceedings which press common matters. The determination of title to the Landing Place property by either the Federal Magistrates Court or the Supreme Court of Queensland would determine the ultimate issues. If the title were properly attributable to the bankrupt the assets would vest in the trustee in bankruptcy; alternatively if the property were held by the bankrupt on trust other rights would follow (at [9]-[10]). • It was accepted by all parties save Ms George that the Federal Magistrates Court and the Federal Court were invested with exclusive jurisdiction under the Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), and that the Supreme Court has no jurisdiction in respect of such matters (at [11]). His Honour referred to Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 as authority for the proposition that contests concerning matters within s 31 Bankruptcy Act fall within the exclusive jurisdiction of the federal courts. His Honour found that the matter of real property and chattels as particularised in paras 1, 2, 3 and 8 of the Amended Application filed 7 November 2008 involved questions of determining the title of the trustee in bankruptcy and must be settled in the federal courts, or alternatively falls within the accrued jurisdiction of the courts (at [13]). Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 and Philip Morris Inc v Adam P Brown Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 were also relevant authorities. • Notwithstanding the absence of commonality of parties because at that time the trustee in bankruptcy was not a party to the Supreme Court proceedings, the interest of the trustee in bankruptcy in the Supreme Court proceedings had been flagged and identified, and the trustee in bankruptcy has reserved his position. (As I have already observed the trustee in bankruptcy was subsequently joined to the Supreme Court proceedings by order of that Court.) • On the basis that the Federal Magistrates Court was the proper Court to hear the matter involving dispute as to ownership of, inter alia , the Landing Place property, the application for a stay was refused. • In relation to submissions of Ms George with respect to the pleadings not having been closed, and that there were further issues to be raised in the pleadings, his Honour found: o the trial in the substantive proceedings raised substantially the same issues that have been the subject of pleadings and interlocutory steps in the Supreme Court proceedings; o although Ms George claimed that she wished to amend her statement of claim again, as the plaintiff in the proceedings before the Supreme Court she had had significant opportunity since the commencement of that action to articulate her claim, and strictly speaking her cause of action notionally arose at the time of her bankruptcy three years ago; o the proceedings before the Federal Magistrates Court and the Supreme Court had an extensive history. Delays appeared largely to have been occasioned by the desire of Ms George to amend pleadings and raise new issues; o Ms George was a capable and articulate person, not in employment, and with ample time to prepare the case in the substantive proceedings; o evidence in the Supreme Court proceedings could be used in the substantive proceedings. • The rights of the parties required resolution, particularly since Ms George had been bankrupt for almost three years and the costs to creditors were escalating. It was appropriate that the matter should proceed to trial on the due date. 16. Fencott v Muller is not relevant because it relates to the Trade Practices Act 1974 (Cth). 17. The matter properly belongs in the Supreme Court of Queensland because it is a civil matter comprising of contract law, law of equity, trusts and fraud and has no elements of bankruptcy to be determined. Parliament can not confer jurisdiction on a federal court with respect to a matter simply because it is associated even closely associated with one of the matters mentioned. 18. The respondents are inappropriately forum-shopping. The first respondent was aware of the Supreme Court proceedings for 8 months before filing an application in the Federal Magistrates Court. 20. The applicant would not receive a fair trial in the Federal Magistrates Court. Leave to appeal 14 Although s 24(1A) Federal Court Act does not require any particular test to be satisfied ( Lomas v Winton Shire Council [2002] FCAFC 413 at [15] ), issues relevant to the exercise of discretion by the Court in granting leave to appeal are whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] . 15 The applicant in this case is self-represented, and as is sometimes the case with self-represented litigants has adopted a "scatter-gun" approach to her case. The applicant has cited a significant number of grounds in support of her application for leave to appeal. However in my view key questions are those I have stated in the previous paragraph, and in that light it is clear that the application for leave to appeal must be dismissed because I find no fault in his Honour's reasoning. 16 The decision of the Federal Magistrate was to refuse an application for a stay of proceedings listed for hearing on 8 December 2008. The applicant's grounds in support of her application are largely irrelevant to that decision. In my view the only grounds of any substance or relevance to the application before me are: a. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George had earlier in 2008 commenced other proceedings in the Supreme Court of Queensland; and b. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George could not be ready for trial commencing 8 December 2008. 17 In relation to the Supreme Court proceedings, the applicant has, in my view, misunderstood the basis upon which his Honour found that the Federal Magistrates Court had exclusive jurisdiction to hear the matter which the applicant sought to bring before the Supreme Court of Queensland. I also consider that Ms George has misunderstood the relevance of principles articulated in Fencott v Muller and Philip Morris to these proceedings. 18 Section 27 Bankruptcy Act provides: (1) The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than: (a) the jurisdiction of the High Court under section 75 of the Constitution ; or (b) the jurisdiction of the Family Court under section 35 or 35A of this Act. 19 In Meriton Apartments in discussing the jurisdiction of the federal courts under s 27(1) , Greenwood J observed: [111] In Scott v Bagshaw [2000] FCA 816 ; (2000) 99 FCR 573 , the Full Court of this court again considered the source and scope of the court's jurisdiction in bankruptcy in proceedings in which the trustee of a family trust asserted an equitable charge over three properties in support of a loan made to the registered proprietors, a husband and wife. The trustees in bankruptcy of the estate of the husband denied any entitlement in the appellant trustee to an equitable mortgage of Torrens title land and contended that the appellant's claim related to a provable debt under s 82 of the Bankruptcy Act . The appellant required leave under s 58(3)(b) to commence the proceeding. [112] Applying the earlier authorities, the court described s 27 as the "seminal" source of the court's jurisdiction in bankruptcy [17]. The court held that s 27 fell to be understood in context and that s 31(1)(f) elucidated what the drafter "had in mind as falling within 'bankruptcy' in s 27(1) as defined in s 5(1)" [18]. Thus, applications declaring for or against the title of the trustee to any property would be encompassed within the s 27 concept of jurisdiction in bankruptcy. The court distinguished Sutherland v Brien on the ground that s 31(1)(f) made it plain that as against the trustees in bankruptcy, the proceeding before the Full Court was within s 27 as a proceeding under or by virtue of the Bankruptcy Act . In Green v Schneller [2001] NSWSC 897 , Barrett J after considering Sutherland v Brien and Scott v Bagshaw made this observation at [22]: When persons become bankrupt, it is necessary for courts to determine all kinds of questions about the consequences. Many of those questions will depend for their answers on the provisions of the Bankruptcy Act . One class of such questions relates to the nature of the rights of persons to property. Austin J held that nothing in the Bankruptcy Act precludes the exercise in such cases of the well established jurisdiction of courts other than those mentioned in s 27(1) "to determine and declare rights to property and make orders as to its destination". But that undoubted jurisdiction will yield to any aspect of the jurisdiction for determination and declaration of such rights which the Bankruptcy Act itself places in the hands of s 27(1) courts. In Scott v Bagshaw the Full Federal Court noted that among the matters so placed in the hands of those courts, is "applications to declare for or against the title of the trustee to any property". Because this is one of the matters s 31(1) of the Act requires "the Court" to hear an open court, it is identified as a matter within the definition of "bankruptcy" and thereby seen to be within s 27(1). That aspect of the general jurisdiction "to determine and declare rights of property and to make orders as to its destination" which entails "applications to declare for or against the title of the trustee to any property" is accordingly reposed in s 27(1) courts alone. [113] In the result, Barrett J concluded the Supreme Court of New South Wales did not have jurisdiction to entertain a motion for leave pursuant to s 58(3)(b) to continue the proceeding. 20 The facts of this case bear strong similarities to those in Scott v Bagshaw . It appears that Ms George, who is a bankrupt, has sought to commence proceedings in the Supreme Court of Queensland, claiming that property which would otherwise fall within the terms of her bankruptcy, and to which accordingly her trustee in bankruptcy would have title, is actually the subject of a separate trust, and therefore outside the terms of her bankruptcy. In my view, this is clearly an "application to declare for or against the title of the trustee to any property" for the purposes of s 31(1)(f) Bankruptcy Act . To paraphrase the words of the Full Court in Scott v Bagshaw at 577: ...the undoubted effect of an order being made in the terms sought by [Ms George] would be that a declaration would be made against the title of the [trustee in bankruptcy]. Upon the [trustee in bankruptcy] becoming trustee, the title to the properties...became vested in them: subs 58(1) and s 132 of the Act. The consequence of any such order must therefore be that it would have a necessary adverse effect on the title of the [trustee in bankruptcy] to the extent that it established title in [Ms George as trustee]. That is a matter that falls within the jurisdiction in bankruptcy.


case_text: Any further or such order the Court deems fit. 4 The application before me arises from a hearing in the substantive proceedings on 18 November 2008 before Burnett FM, where Ms George sought a stay of hearing of particular matters listed for hearing on 8 December 2008. The matters Ms George sought to have stayed in the substantive proceedings were as follows: 1. The Heads of Agreement dated 19 February 2008 remain valid and enforceable. 2. As at 24 February 2006, the legal and beneficial ownership of lot 30 on SP145714 County of Stanley, Parish of Moggill, title reference 50440445 (the Landing Place property) vests in the applicant as trustee of the bankrupt estate. 3. There is no trust in favour of Alexandra George, the bankrupt, or any other person in respect of the Landing Place property; and 4. As at 24 February 2006 the legal and beneficial ownership of items listed in schedule A vests the trustee of the bankrupt estate. 5 These matters related to paras 1, 2, 3 and 8 of the trustee in bankruptcy's Amended Application filed 7 November 2008. 6 The application for a stay in the substantive proceedings before his Honour resulted from the commencement of separate proceedings by Ms George in the Supreme Court of Queensland (the Supreme Court proceedings) in April 2008. The Supreme Court proceedings involved claims by Ms George for declarations that she was trustee for her son in respect of property the subject of the substantive proceedings, in particular the Landing Place property. I note that the learned Federal Magistrate found (at [9]) that there was a common substratum of facts and issues arising in relation to claims by Ms George in the Supreme Court of Queensland, and claims by the trustee in bankruptcy in the substantive proceedings. This finding is not disputed by the respondents before me, although in Court this morning Ms George disputed his Honour's finding that she was not necessarily in disagreement with this finding. I understand from submissions of Counsel for the trustee in bankruptcy that, after the trustee in bankruptcy was joined as a party to the Supreme Court proceedings by order of the Court, there was commonality between the parties to the Supreme Court proceedings and the parties to the substantive proceedings. The joinder of the trustee in bankruptcy to the Supreme Court proceedings is not in dispute. 7 The application brought by Ms George before his Honour for a stay of the substantive proceedings was listed for hearing before his Honour on 18 November 2008. It is not in dispute that, on that morning, Ms George applied for an adjournment of the stay application for a number of reasons including (in summary) a power cut which had affected her ability to be ready for the hearing, the fact that she had been served with material by the respondents approximately 2 hours 20 minutes late, and that she was ill on that day with medical certificates to support that assertion. 8 The Federal Magistrate refused to adjourn the hearing of Ms George's application for a stay and, after hearing the application, refused it. His Honour's reasons appear in Fletcher & George (No 5) [2008] FMCA 1628. Fletcher & George (No 5) 9 In dismissing the application for a stay of the substantive proceedings the key findings of his Honour can be summarised as follows: • There are presently on foot in the Federal Magistrates Court and the Supreme Court of Queensland proceedings which press common matters. The determination of title to the Landing Place property by either the Federal Magistrates Court or the Supreme Court of Queensland would determine the ultimate issues. If the title were properly attributable to the bankrupt the assets would vest in the trustee in bankruptcy; alternatively if the property were held by the bankrupt on trust other rights would follow (at [9]-[10]). • It was accepted by all parties save Ms George that the Federal Magistrates Court and the Federal Court were invested with exclusive jurisdiction under the Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), and that the Supreme Court has no jurisdiction in respect of such matters (at [11]). His Honour referred to Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 as authority for the proposition that contests concerning matters within s 31 Bankruptcy Act fall within the exclusive jurisdiction of the federal courts. His Honour found that the matter of real property and chattels as particularised in paras 1, 2, 3 and 8 of the Amended Application filed 7 November 2008 involved questions of determining the title of the trustee in bankruptcy and must be settled in the federal courts, or alternatively falls within the accrued jurisdiction of the courts (at [13]). Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 and Philip Morris Inc v Adam P Brown Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 were also relevant authorities. • Notwithstanding the absence of commonality of parties because at that time the trustee in bankruptcy was not a party to the Supreme Court proceedings, the interest of the trustee in bankruptcy in the Supreme Court proceedings had been flagged and identified, and the trustee in bankruptcy has reserved his position. (As I have already observed the trustee in bankruptcy was subsequently joined to the Supreme Court proceedings by order of that Court.) • On the basis that the Federal Magistrates Court was the proper Court to hear the matter involving dispute as to ownership of, inter alia , the Landing Place property, the application for a stay was refused. • In relation to submissions of Ms George with respect to the pleadings not having been closed, and that there were further issues to be raised in the pleadings, his Honour found: o the trial in the substantive proceedings raised substantially the same issues that have been the subject of pleadings and interlocutory steps in the Supreme Court proceedings; o although Ms George claimed that she wished to amend her statement of claim again, as the plaintiff in the proceedings before the Supreme Court she had had significant opportunity since the commencement of that action to articulate her claim, and strictly speaking her cause of action notionally arose at the time of her bankruptcy three years ago; o the proceedings before the Federal Magistrates Court and the Supreme Court had an extensive history. Delays appeared largely to have been occasioned by the desire of Ms George to amend pleadings and raise new issues; o Ms George was a capable and articulate person, not in employment, and with ample time to prepare the case in the substantive proceedings; o evidence in the Supreme Court proceedings could be used in the substantive proceedings. • The rights of the parties required resolution, particularly since Ms George had been bankrupt for almost three years and the costs to creditors were escalating. It was appropriate that the matter should proceed to trial on the due date.


case_title: Harrington v Rich [2008] FCAFC 61


case_text: In relation to Ms George's submissions concerning her lack of preparedness for trial commencing 8 December 2008, I understand that the relevant issues before his Honour were as to, inter alia , further discovery and further issues to be raised by Ms George. Ms George has raised before me other matters including as to calling witnesses and adducing additional evidence. However in relation to the decision of his Honour I am unable to identify error in his Honour's approach to the applicant's conduct of her case. Notwithstanding that the applicant claimed that she would not be able to afford to refile the material filed in the Supreme Court of Queensland in the Federal Magistrates Court, I note that his Honour ordered in para 5 of his orders of 18 November 2008 that any documents filed in the Supreme Court proceedings be taken as filed in this proceeding. Whether or not to grant an adjournment of a hearing for lack of readiness of either party is a matter of discretion for the judge, and I am unable to find that his Honour's erred as explained in House v R [1936] HCA 40 ; (1936) 55 CLR 499 in light of his Honour's findings including: • the fact that the substantive proceedings raised substantially the same issues that had been the subject of pleadings and other interlocutory steps in the Supreme Court proceedings (at [20]); • the fact that the applicant's cause of action notionally arose at the time of her bankruptcy (at [20]); • the fact that the applicant had time to prepare her case (at [21]); • the fact that evidence in the Supreme Court proceedings could be used in the substantive proceedings (at [21]); • the fact that the rights of the parties had been in contest for some time and the costs to creditors were escalating (at [26]); • the fact that the bankruptcy of the applicant had almost reached its third anniversary (at [27]).


case_title: Lomas v Winton Shire Council [2002] FCAFC 413


case_outcome: followed

case_text: Any further or such order the Court deems fit. 4 The application before me arises from a hearing in the substantive proceedings on 18 November 2008 before Burnett FM, where Ms George sought a stay of hearing of particular matters listed for hearing on 8 December 2008. The matters Ms George sought to have stayed in the substantive proceedings were as follows: 1. The Heads of Agreement dated 19 February 2008 remain valid and enforceable. 2. As at 24 February 2006, the legal and beneficial ownership of lot 30 on SP145714 County of Stanley, Parish of Moggill, title reference 50440445 (the Landing Place property) vests in the applicant as trustee of the bankrupt estate. 3. There is no trust in favour of Alexandra George, the bankrupt, or any other person in respect of the Landing Place property; and 4. As at 24 February 2006 the legal and beneficial ownership of items listed in schedule A vests the trustee of the bankrupt estate. 5 These matters related to paras 1, 2, 3 and 8 of the trustee in bankruptcy's Amended Application filed 7 November 2008. 6 The application for a stay in the substantive proceedings before his Honour resulted from the commencement of separate proceedings by Ms George in the Supreme Court of Queensland (the Supreme Court proceedings) in April 2008. The Supreme Court proceedings involved claims by Ms George for declarations that she was trustee for her son in respect of property the subject of the substantive proceedings, in particular the Landing Place property. I note that the learned Federal Magistrate found (at [9]) that there was a common substratum of facts and issues arising in relation to claims by Ms George in the Supreme Court of Queensland, and claims by the trustee in bankruptcy in the substantive proceedings. This finding is not disputed by the respondents before me, although in Court this morning Ms George disputed his Honour's finding that she was not necessarily in disagreement with this finding. I understand from submissions of Counsel for the trustee in bankruptcy that, after the trustee in bankruptcy was joined as a party to the Supreme Court proceedings by order of the Court, there was commonality between the parties to the Supreme Court proceedings and the parties to the substantive proceedings. The joinder of the trustee in bankruptcy to the Supreme Court proceedings is not in dispute. 7 The application brought by Ms George before his Honour for a stay of the substantive proceedings was listed for hearing before his Honour on 18 November 2008. It is not in dispute that, on that morning, Ms George applied for an adjournment of the stay application for a number of reasons including (in summary) a power cut which had affected her ability to be ready for the hearing, the fact that she had been served with material by the respondents approximately 2 hours 20 minutes late, and that she was ill on that day with medical certificates to support that assertion. 8 The Federal Magistrate refused to adjourn the hearing of Ms George's application for a stay and, after hearing the application, refused it. His Honour's reasons appear in Fletcher & George (No 5) [2008] FMCA 1628. Fletcher & George (No 5) 9 In dismissing the application for a stay of the substantive proceedings the key findings of his Honour can be summarised as follows: • There are presently on foot in the Federal Magistrates Court and the Supreme Court of Queensland proceedings which press common matters. The determination of title to the Landing Place property by either the Federal Magistrates Court or the Supreme Court of Queensland would determine the ultimate issues. If the title were properly attributable to the bankrupt the assets would vest in the trustee in bankruptcy; alternatively if the property were held by the bankrupt on trust other rights would follow (at [9]-[10]). • It was accepted by all parties save Ms George that the Federal Magistrates Court and the Federal Court were invested with exclusive jurisdiction under the Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), and that the Supreme Court has no jurisdiction in respect of such matters (at [11]). His Honour referred to Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 as authority for the proposition that contests concerning matters within s 31 Bankruptcy Act fall within the exclusive jurisdiction of the federal courts. His Honour found that the matter of real property and chattels as particularised in paras 1, 2, 3 and 8 of the Amended Application filed 7 November 2008 involved questions of determining the title of the trustee in bankruptcy and must be settled in the federal courts, or alternatively falls within the accrued jurisdiction of the courts (at [13]). Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 and Philip Morris Inc v Adam P Brown Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 were also relevant authorities. • Notwithstanding the absence of commonality of parties because at that time the trustee in bankruptcy was not a party to the Supreme Court proceedings, the interest of the trustee in bankruptcy in the Supreme Court proceedings had been flagged and identified, and the trustee in bankruptcy has reserved his position. (As I have already observed the trustee in bankruptcy was subsequently joined to the Supreme Court proceedings by order of that Court.) • On the basis that the Federal Magistrates Court was the proper Court to hear the matter involving dispute as to ownership of, inter alia , the Landing Place property, the application for a stay was refused. • In relation to submissions of Ms George with respect to the pleadings not having been closed, and that there were further issues to be raised in the pleadings, his Honour found: o the trial in the substantive proceedings raised substantially the same issues that have been the subject of pleadings and interlocutory steps in the Supreme Court proceedings; o although Ms George claimed that she wished to amend her statement of claim again, as the plaintiff in the proceedings before the Supreme Court she had had significant opportunity since the commencement of that action to articulate her claim, and strictly speaking her cause of action notionally arose at the time of her bankruptcy three years ago; o the proceedings before the Federal Magistrates Court and the Supreme Court had an extensive history. Delays appeared largely to have been occasioned by the desire of Ms George to amend pleadings and raise new issues; o Ms George was a capable and articulate person, not in employment, and with ample time to prepare the case in the substantive proceedings; o evidence in the Supreme Court proceedings could be used in the substantive proceedings. • The rights of the parties required resolution, particularly since Ms George had been bankrupt for almost three years and the costs to creditors were escalating. It was appropriate that the matter should proceed to trial on the due date. 20. The applicant would not receive a fair trial in the Federal Magistrates Court. Leave to appeal 14 Although s 24(1A) Federal Court Act does not require any particular test to be satisfied ( Lomas v Winton Shire Council [2002] FCAFC 413 at [15] ), issues relevant to the exercise of discretion by the Court in granting leave to appeal are whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] . 15 The applicant in this case is self-represented, and as is sometimes the case with self-represented litigants has adopted a "scatter-gun" approach to her case. The applicant has cited a significant number of grounds in support of her application for leave to appeal. However in my view key questions are those I have stated in the previous paragraph, and in that light it is clear that the application for leave to appeal must be dismissed because I find no fault in his Honour's reasoning. 16 The decision of the Federal Magistrate was to refuse an application for a stay of proceedings listed for hearing on 8 December 2008. The applicant's grounds in support of her application are largely irrelevant to that decision. In my view the only grounds of any substance or relevance to the application before me are: a. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George had earlier in 2008 commenced other proceedings in the Supreme Court of Queensland; and b. whether the Federal Magistrate erred in refusing to stay the proceedings because Ms George could not be ready for trial commencing 8 December 2008. 17 In relation to the Supreme Court proceedings, the applicant has, in my view, misunderstood the basis upon which his Honour found that the Federal Magistrates Court had exclusive jurisdiction to hear the matter which the applicant sought to bring before the Supreme Court of Queensland. I also consider that Ms George has misunderstood the relevance of principles articulated in Fencott v Muller and Philip Morris to these proceedings. 18 Section 27 Bankruptcy Act provides: (1) The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than: (a) the jurisdiction of the High Court under section 75 of the Constitution ; or (b) the jurisdiction of the Family Court under section 35 or 35A of this Act. 19 In Meriton Apartments in discussing the jurisdiction of the federal courts under s 27(1) , Greenwood J observed: [111] In Scott v Bagshaw [2000] FCA 816 ; (2000) 99 FCR 573 , the Full Court of this court again considered the source and scope of the court's jurisdiction in bankruptcy in proceedings in which the trustee of a family trust asserted an equitable charge over three properties in support of a loan made to the registered proprietors, a husband and wife. The trustees in bankruptcy of the estate of the husband denied any entitlement in the appellant trustee to an equitable mortgage of Torrens title land and contended that the appellant's claim related to a provable debt under s 82 of the Bankruptcy Act . The appellant required leave under s 58(3)(b) to commence the proceeding. [112] Applying the earlier authorities, the court described s 27 as the "seminal" source of the court's jurisdiction in bankruptcy [17]. The court held that s 27 fell to be understood in context and that s 31(1)(f) elucidated what the drafter "had in mind as falling within 'bankruptcy' in s 27(1) as defined in s 5(1)" [18]. Thus, applications declaring for or against the title of the trustee to any property would be encompassed within the s 27 concept of jurisdiction in bankruptcy. The court distinguished Sutherland v Brien on the ground that s 31(1)(f) made it plain that as against the trustees in bankruptcy, the proceeding before the Full Court was within s 27 as a proceeding under or by virtue of the Bankruptcy Act . In Green v Schneller [2001] NSWSC 897 , Barrett J after considering Sutherland v Brien and Scott v Bagshaw made this observation at [22]: When persons become bankrupt, it is necessary for courts to determine all kinds of questions about the consequences. Many of those questions will depend for their answers on the provisions of the Bankruptcy Act . One class of such questions relates to the nature of the rights of persons to property. Austin J held that nothing in the Bankruptcy Act precludes the exercise in such cases of the well established jurisdiction of courts other than those mentioned in s 27(1) "to determine and declare rights to property and make orders as to its destination". But that undoubted jurisdiction will yield to any aspect of the jurisdiction for determination and declaration of such rights which the Bankruptcy Act itself places in the hands of s 27(1) courts. In Scott v Bagshaw the Full Federal Court noted that among the matters so placed in the hands of those courts, is "applications to declare for or against the title of the trustee to any property". Because this is one of the matters s 31(1) of the Act requires "the Court" to hear an open court, it is identified as a matter within the definition of "bankruptcy" and thereby seen to be within s 27(1). That aspect of the general jurisdiction "to determine and declare rights of property and to make orders as to its destination" which entails "applications to declare for or against the title of the trustee to any property" is accordingly reposed in s 27(1) courts alone. [113] In the result, Barrett J concluded the Supreme Court of New South Wales did not have jurisdiction to entertain a motion for leave pursuant to s 58(3)(b) to continue the proceeding. 20 The facts of this case bear strong similarities to those in Scott v Bagshaw . It appears that Ms George, who is a bankrupt, has sought to commence proceedings in the Supreme Court of Queensland, claiming that property which would otherwise fall within the terms of her bankruptcy, and to which accordingly her trustee in bankruptcy would have title, is actually the subject of a separate trust, and therefore outside the terms of her bankruptcy. In my view, this is clearly an "application to declare for or against the title of the trustee to any property" for the purposes of s 31(1)(f) Bankruptcy Act . To paraphrase the words of the Full Court in Scott v Bagshaw at 577: ...the undoubted effect of an order being made in the terms sought by [Ms George] would be that a declaration would be made against the title of the [trustee in bankruptcy]. Upon the [trustee in bankruptcy] becoming trustee, the title to the properties...became vested in them: subs 58(1) and s 132 of the Act. The consequence of any such order must therefore be that it would have a necessary adverse effect on the title of the [trustee in bankruptcy] to the extent that it established title in [Ms George as trustee]. That is a matter that falls within the jurisdiction in bankruptcy.


case_title: Philip Morris Inc v Adam P Brown Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457


case_title: Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539


case_text: In the reasons that I gave on 9 May 2007, I indicated that I did not consider that there was any error in the reasons of the Federal Magistrates Court. However, because I had not had the advantage of detailed submissions on the question, I adjourned the application for three weeks, in order to give the applicant the opportunity of obtaining legal advice, filing a further draft notice of appeal and making written submission. Since the earlier hearing, my attention has been drawn to a decision of the Full Court given on 11 May 2007 concerning the operation of the relevant regulations: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69. The reasons of the Court in that proceeding tend to support views that have been expressed by judges of the Federal Magistrates Court concerning the operation of Amendment No 8. 4 As I indicated on 9 May, it is perhaps bad luck for the present applicant that his visa was cancelled only shortly before the Regulations were amended. Under the regime that exists, following the amendment, the decision-maker would have a discretion to take into account the circumstances of the applicant that led to his failing to satisfy Condition 8202. However, the language of the transitional provisions is unequivocal. As at the date of the Tribunal's decision, the visa in question had been cancelled. It follows, therefore, that the decision of the Federal Magistrates Court in this proceeding was correct. There is no arguable case that could have been advanced in an amended notice of appeal. There would be no utility in extending the time for filing a notice of appeal. In the circumstances the application must be dismissed with costs. 5 The solicitor for the Minister has asked that I fix the amount of the costs in the sum of $2,400. That is somewhat higher than would normally be expected in relation to an application for an extension of time. The Minister's solicitor assures me that the actual costs exceed that sum. The sum is justified by the nature of the claims made by the applicant in his application for extension of time. That is to say, he asserted that there was a denial of procedural fairness on the part of the Tribunal. That required the Minister to make inquiries and to file evidence, including evidence consisting of the transcript of the proceeding before the Federal Magistrates Court.


case_text: Section 44 of the Tribunal Act provides that a party may appeal to the Federal Court, on a question of law, from any decision of the Tribunal. The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal. Rather, it and it alone, is the subject matter of the appeal and the ambit of the appeal is confined to that question of law: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302. The Commissioner contends that the first three of those purported questions are not questions of law and should be struck out. 37 The thrust of the Taxpayer's contentions, in effect, is that, at the time of the termination of his employment, he was physically located in Tokyo and was not a resident of Australia. He contends that, while the period of reasonable notice may properly be determined by reference to the time of his employment by Deutsche Australia, the relevant fact is that, at the time of termination, he was being remunerated by Deutsche Securities and the Redundancy Payment was made in circumstances where he had asserted, through his solicitors, an entitlement to a payment equivalent to 24 months' salary, and had asserted that any such payment would not be subject to deduction of tax because it was a payment within the definition in s 27A. 38 The grounds of appeal are not easy to comprehend. First, the Taxpayer says that the Tribunal erred in considering that legal employment by Deutsche Australia, an Australian entity, was service not in a foreign country under paragraph (iii). Rather, he says, the Tribunal should have considered the legislative context, which included s 23AG of the Assessment Act, which had the effect that salary paid while not a resident would be exempt. The Taxpayer asserts that, had he been given reasonable notice, the reasonable notice period of 14 months would have been worked out in Japan for which he would have received salary that would have been exempt. However, there was no finding to that effect by the Tribunal. Indeed, the Tribunal was not asked to make such a finding. It is certainly not self-evident that such a finding should or could have been made on the material before the Tribunal. The first ground has no substance.


case_text: It would be wrong to allow a determination of the character of a receipt in the hands of the recipient to be affected by a consideration of the uncommunicated reasoning that led the payer to agree to make the payment. On the other hand, in a proper case, a single payment or receipt of a mixed nature may be apportioned amongst the several heads to which it relates. Thus, it may be appropriate to follow such a course where the payment or receipt is in settlement of distinct claims of which some at least are liquidated or are otherwise ascertainable by calculation. On the other hand, it will not be appropriate where the payment or receipt is in respect of a claim or claims for unliquidated damages only and is made or accepted under a compromise that treats it as a single undissected amount of damages. In such a case, the amount must be considered as a whole: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 at 391. 50 The Commissioner accepts that, had there been a basis for apportioning part of the Redundancy Payment, such that it could be said that that part was attributable to the Taxpayer's service in Japan and related solely to the period of his employment in Japan, it may have been possible to dissect the Redundancy Payment. However, no such apportionment was made by the Taxpayer and Deutsche Australia. There was a dissection made, in the correspondence that led to the payment, insofar as a distinction was drawn between redundancy and payment in lieu of notice. However, that distinction was not related to the respective periods of employment in Australia and in Japan. The 11 months' redundancy was calculated by reference to the total period of employment of the Taxpayer by Deutsche Australia from the Taxpayer's commencement in 1992 until his termination in 2002. Similarly, the payment in lieu of notice was not limited to the period of his employment in Japan. The material before the Tribunal indicated that the Taxpayer continued to be employed by Deutsche Australia. Deutsche Australia terminated his employment, albeit at a time when he was serving in Japan and was non-resident. 51 It may have been possible for the Taxpayer and Deutsche Australia to agree on the manner in which the Redundancy Payment was to be apportioned as between service in Japan and service in Australia, such that that part attributable to the service in Japan would not be included in the Taxpayer's assessable income. However, they did not do that. There was no error of law on the part of the Tribunal in concluding that dissection of the Redundancy Payment was not permissible in the circumstances before it.


case_outcome: considered

case_title: Jess v Scott (1986) 12 FCR 187

case_text: The leading authority in relation to the exercise of that discretion is a decision of the Full Federal Court in Jess v Scott (1986) 12 FCR 187. At page 195 in that case, it is observed that the term " special reasons " is " an elastic test suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period ". I remind myself also that the rules of Court are meant to be a servant of justice, not its master. 8 Later cases have highlighted a number of considerations that are relevant to the granting of an extension of time within which to appeal. These are: (a) the length of the delay involved in the filing of the notice; (b) where there is an acceptable explanation for that delay; (c) whether the respondent will suffer prejudice by reason of the delay; and (d) the nature of the injustice to the applicant if an extension is not granted. 9 As to the last of these considerations, it can, in particular cases, be relevant to consider the merits of the proposed appeal having regard to the draft notice of appeal grounds. There is no asserted prejudice to the Minister or, for that matter, the Executive Government of the Commonwealth, in relation to the granting of an extension. Further, I can well understand the difficulties faced by a person whose first language is not English and whose command of English is, at best, very limited.


case_title: Cummings v Lewis (1993) 113 ALR 285

case_text: The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136. See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9. It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order. In these circumstances, the ordinary rule should apply.


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


case_title: Adams v Naylor [1946] AC 543

case_text: At [157], Heydon JA pointed out that 'the court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.' His Honour then cited the Gramophone Co case, quoting an extensive passage from the speech of Lord Loreburn LC, including the passage I have quoted at [43]. At [158] and [159], his Honour referred to two other English cases, Adams v Naylor [1946] AC 543 and Royster v Cavey [1947] KB 204, in both of which it had been held that crucial admissions on which the cases had been conducted at first instance should not be accepted, because they were contrary to fact. By way of conclusion, at [160], Heydon JA said: 'In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.'


case_text: Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that s 87(1)(c) of the Evidence Act 1995 (NSW) (which is in the same form as s 87(1)(c) of the Evidence Act ) reproduces the pre-existing common law. See R v Macraild (unreported, NSW Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997) at 9 and Watt v R [2000] NSWCCA 37 at [8] . The pre-existing common law is found in Tripodi v R [1961] HCA 22 ; (1961) 104 CLR 1 at 7 and Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87 at 100. In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were 'reasonable evidence' establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as the New South Wales Court of Criminal Appeals appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' preferred by the legislature. For present purposes, however, Macraild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of s 87(1)(c) of the Evidence Act , Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that s 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself.


case_text: Counsel for the ACCC found it necessary to grapple with the use of the word 'commitment' in the judgment of the Full Court in Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161 (2005) ATPR 42-078 (' Apco Service Stations ') at [43] [47]. In that case, which concerned allegations that dealers in the Ballarat retail petrol market had been involved in an arrangement or understanding to fix the price of petrol, and which involved some of the parties to the present case, the trial judge had declined to make a finding that one dealer became committed to any price increase agreed on by the other dealers. In addition, his Honour had made a finding that the other dealers had no expectation that the uncommitted dealer's readiness to receive telephone calls about prices meant that the uncommitted dealer would substantially match those prices. The Full Court expressed the view that these findings led to the unavoidable conclusion that the uncommitted dealer was not a party to any understanding that it would fix its prices at the same level as the other dealers or at any particular level, or even that it would increase its prices at all. In expressing this view, at [45], the Full Court pointed out that the appellants in that case had not disputed that the trial judge had enunciated the correct legal principles. The trial judge had referred, and the Full Court also referred, to observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 (1999) 92 FCR 375 at [141] , which were specifically endorsed by a Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 (2002) 118 FCR 236 at [79] . Lindgren J said: 'The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A . The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required.'


case_text: In the present case, counsel for the ACCC recognised that the judgment in Apco Service Stations was binding on me. They made the formal submission that the Full Court was in error when it required that there be some commitment, before there could be an understanding for the purposes of s 45(2)(a) of the Trade Practices Act . The reality is that the previous authorities dealing with the content of an understanding, as distinct from its formation, provide ample support for what the Full Court said in Apco Service Stations . More than ample support is also found in the analysis of the relevant provisions, which I have already set out in [24] [34]. As I have said, for the purposes of s 45(2)(a) there can be no such thing as an understanding that leaves each party to it free to do whatever it wishes. Whatever word may be chosen to represent the essential element of an understanding for the purposes of the relevant statutory provisions, it is clear that element involves the assumption of an obligation, unenforceable in any court of law, but merely morally binding or binding in honour. Any reservation that may have existed about this has been dispelled by the High Court, which dismissed the ACCC's application for special leave to appeal from the Full Court in Apco Service Stations on 2 June 2006. See ACCC v Apco Service Stations Pty Ltd & Anor [2006] HCATrans 272. At line 619, giving the judgment of himself and Hayne J, Gleeson CJ said: 'The decision of the Full Court of the Federal Court turned not upon any controversial view of the meaning of the relevant provisions of the Trade Practices Act but upon the Full Court's view of the facts in the light of the case as pleaded and argued by the Commission. In the light of the facts as found, the case does not raise any issue of law suitable to a grant of special leave to appeal. The application is dismissed with costs.' 38 For all of these reasons, quite apart from its binding effect on me, the correctness of the Full Court's judgment in Apco Service Stations cannot be doubted.


case_text: Counsel for the ACCC found it necessary to grapple with the use of the word 'commitment' in the judgment of the Full Court in Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161 (2005) ATPR 42-078 (' Apco Service Stations ') at [43] [47]. In that case, which concerned allegations that dealers in the Ballarat retail petrol market had been involved in an arrangement or understanding to fix the price of petrol, and which involved some of the parties to the present case, the trial judge had declined to make a finding that one dealer became committed to any price increase agreed on by the other dealers. In addition, his Honour had made a finding that the other dealers had no expectation that the uncommitted dealer's readiness to receive telephone calls about prices meant that the uncommitted dealer would substantially match those prices. The Full Court expressed the view that these findings led to the unavoidable conclusion that the uncommitted dealer was not a party to any understanding that it would fix its prices at the same level as the other dealers or at any particular level, or even that it would increase its prices at all. In expressing this view, at [45], the Full Court pointed out that the appellants in that case had not disputed that the trial judge had enunciated the correct legal principles. The trial judge had referred, and the Full Court also referred, to observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 (1999) 92 FCR 375 at [141] , which were specifically endorsed by a Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 (2002) 118 FCR 236 at [79] . Lindgren J said: 'The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A . The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required.' 39 As I have said, the concepts of contract, arrangement and understanding relevant to the application of s 45(2)(a) of the Trade Practices Act are concepts representing points on a spectrum of consensual dealings. It is possible that the spectrum might be extended in one direction beyond contract, to include even more solemnly binding consensual obligations, such as deeds under seal. It is difficult to see that the spectrum of consensual dealings could extend in the other direction beyond the concept of 'understanding', whilst still remaining relevant for the purposes of s 45(2)(a). That end of the spectrum, therefore, lies somewhere between the outer limits of what constitutes an 'understanding' and the closest form of non-consensual dealing that could be imagined. It is possible that this closest form is the expectation that a party will act in a particular way, engendered by that party, to which Lindgren J referred in CC (NSW) Pty Ltd at [141]. It may be in the realm of parallel conduct, even conscious parallel conduct, such as the adoption of identical prices for homogeneous products, which clearly lies beyond the realm of 'understanding'. See the American authorities cited by Lockhart J in Email at 56 57.


case_text: Termijtelen is authority for the proposition that the fact that an admission is a deemed admission, pursuant to a provision such as O 11 r 13 of the Federal Court Rules , does not have any effect on the question whether the Court should make a finding in accordance with it if the admission appears unreliable. It is also possible for the Court to dispense with compliance with the requirements of O 11 r 13, under the general dispensing power found in O 1 r 8 of the Federal Court Rules . See Australian Competition and Consumer Commission v Francis [2004] FCA 487 (2004) 142 FCR 1 at [42] [43]. It is clear that the powers in O 18 r 4(1) and (2) respectively are discretionary; the Court is not obliged to give judgment on the basis of admissions made, whether in pleadings or otherwise. Nor is it obliged to give such judgment without determining the other issues remaining in the proceeding. 56 The applicant, the ACCC, is established by s 6A(1) of the Trade Practices Act . By s 6A(2)(a) , the ACCC is a body corporate and by s 6A(2)(d) it may sue in its corporate name. The ACCC is a party given standing by s 77(1) of the Trade Practices Act to institute a proceeding for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in s 76. Section 80(1) also gives the ACCC standing to apply for an injunction. 57 Among the 18 respondents to the proceeding, the first eight are corporations. They are respectively: the first respondent, Leahy Petroleum Pty Ltd ('Leahy'); the second respondent, Apco Service Stations Pty Ltd ('Apco'); the third respondent, Pegasus Retail Pty Ltd ('Pegasus'); the fourth respondent, United Geelong Pty Ltd, formerly called United Fuels Pty Ltd ('United Fuels'); the fifth respondent, Brumar (Vic) Pty Ltd ('Brumar'); the sixth respondent, United Retail Pty Ltd ('United Retail'); the seventh respondent, Liberty Petroleum Pty Ltd ('Liberty') and the eighth respondent, Andrianopoulos Motors Pty Ltd ('Andrianopoulos').


case_text: The starting point for determining the meaning of statutory provisions must be those provisions themselves. Previous authorities, in which the courts have pronounced upon the meanings of particular provisions, may be binding, and are often helpful. Sometimes, however, those pronouncements are made in the context of the resolution of particular issues, which may differ from those raised in a current case. As Merkel J recognised in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 (2004) 141 FCR 183 (' the Ballarat case ') at [57], previous statements of principle can be difficult to apply in a case that raises different issues. As his Honour said, it is necessary to return to the words of the statute. 24 Section 45(2)(a) of the Trade Practices Act uses the terms 'contract', 'arrangement' and 'understanding'. These are plainly intended to represent a spectrum of consensual dealings. The words of the statute themselves so demonstrate. They provide that a corporation is not to 'make' a contract or arrangement, or to 'arrive at' an understanding, if the contract, arrangement or understanding has a specified content. A corporation cannot 'make' a contract or arrangement, or 'arrive at' an understanding, without there being at least one other party to the contract, arrangement or understanding. The other party must also participate in the making, or the arriving at, before there can be a contract, arrangement or understanding. Clearly, it is not possible to 'make' something, or to 'arrive at' something, unless what is made or arrived at exists at the end of the process of making or arriving at. What must exist for s 45(2)(a) to apply is one of the three forms of consensual dealing. 25 The term 'contract' is well understood by lawyers. A contract is the result of the acceptance by one party of an offer made by another, resulting in the minds of the two parties being at one as to the agreement they have made. It must be supported by good consideration, have sufficient certainty of terms that it be possible to determine what has been agreed, and be accompanied by an intention on the part of the parties that a legally binding relationship should be established by it. In ordinary circumstances, the obligations created by a contract are enforceable in a court, but their enforceability is subject to the possibility of defences arising from the nature of the contract itself, or from external circumstances. One defence arising from the nature of the contract itself results from the illegality of its purpose. In using the word 'contract' in s 45(2)(a) of the Trade Practices Act , Parliament must have intended to refer to a consensual dealing having the fundamental characteristics of a contract, but not necessarily being enforceable in a court of law, because s 45(2)(a) would itself give rise to the defence of illegality, and thereby prevent enforcement. Thus, the word 'contract' for the purposes of s 45(2)(a) describes a consensual dealing with a high degree of formality. 61 On 17 December 2004, Merkel J delivered judgment in the Ballarat case , to which I have referred in [23], in a proceeding in which the ACCC alleged the existence of an arrangement or understanding to fix the prices of petrol in the City of Ballarat and its surrounding area. Among those found to be parties to the Ballarat arrangement or understanding was Brumar. Merkel J also found that Brumar had given effect to that arrangement or understanding on some 53 occasions. See the Ballarat case at [382]. On 17 March 2005, his Honour imposed a pecuniary penalty of $4 000 000 on Brumar in respect of those contraventions. See Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 at [42] . By that date, Brumar was already in liquidation, consequent upon a creditors' meeting on 17 February 2005. Earlier, Brumar had sold its business assets for a sum exceeding $26 000 000. Settlement of the sale occurred on 26 July 2003. After satisfaction of secured and other creditors out of the proceeds of sale, Brumar was left with $994 400. By the time of the liquidation, Brumar was said to have had total assets of $50 000 and creditors totalling $400. After investigation by the liquidator, on 18 May 2005, the liquidator expressed the view that a distribution to creditors of close to 100c in the dollar would be likely, subject to the resolution of a dispute as to whether any debt in respect of the costs awarded against Brumar by Merkel J on 17 March 2005 was provable in the liquidation. The liquidator contended that such a debt could not be proved in the liquidation. For practical purposes, any surplus of assets over liabilities of Brumar would be more than exhausted by the payment of the penalty imposed by Merkel J and the payment of any costs ordered by his Honour. The prospect of the ACCC recovering any pecuniary penalty from Brumar appears to be non-existent. Accordingly, for reasons similar to those I have given with respect to Leahy in [58], I also refused the ACCC's application, pursuant to s 500(2) of the Corporations Act , for leave to proceed against Brumar. 191 Shortly before Easter 2000, a petrol retailer in Ballarat rang a Melbourne radio station and made public the petrol price-fixing practices in Ballarat, which Merkel J subsequently found to have existed in the Ballarat case . The ACCC then announced that it would conduct an investigation into petrol pricing in Ballarat. Leahy was one of the corporations investigated in respect of its activities in Ballarat. Although he was not involved with the setting of prices for the Leahy outlets in Ballarat, Mr Carmichael became aware of a notice to Leahy under s 155 of the Trade Practices Act in relation to its Ballarat activities. He thereby became aware, about the middle of 2000, that the ACCC was using telephone call records to prove its case in Ballarat. 192 The initial announcement of the ACCC investigation in Ballarat made Ian Carmichael and Peter Anderson reluctant to discuss petrol prices on the telephone. They were not sure that the ACCC was not listening to their telephone calls. They began visiting each other's offices and talking in person about price movements. After a time, Mr Carmichael became 'a little bit cocky'. While he was keen on communications other than by telephone, there were occasions when Mr Carmichael would arrange to meet either Graeme Chisholm or Darren Campigli in the car park between Leahy's depot and the Caltex depot, where Mr Chisholm and Mr Campigli worked. 193 Fear of being detected by telephone bugging also led Mr Carmichael to invent a code, by which he hoped to communicate prices and times to those to whom he spoke. He would ring up and announce to the recipient of the call (Peter Anderson, Darren Campigli, Colin Williamson or Phil Carmichael) that an aeroplane of a particular model (eg a 939, representing 93.9c per litre) was due to land at Avalon Airport at a particular time, with a specified number of passengers (which represented the price of liquefied petroleum gas). The first time Mr Carmichael used this device, the recipient of the call did not understand it.


case_text: On 17 December 2004, Merkel J delivered judgment in the Ballarat case , to which I have referred in [23], in a proceeding in which the ACCC alleged the existence of an arrangement or understanding to fix the prices of petrol in the City of Ballarat and its surrounding area. Among those found to be parties to the Ballarat arrangement or understanding was Brumar. Merkel J also found that Brumar had given effect to that arrangement or understanding on some 53 occasions. See the Ballarat case at [382]. On 17 March 2005, his Honour imposed a pecuniary penalty of $4 000 000 on Brumar in respect of those contraventions. See Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 at [42] . By that date, Brumar was already in liquidation, consequent upon a creditors' meeting on 17 February 2005. Earlier, Brumar had sold its business assets for a sum exceeding $26 000 000. Settlement of the sale occurred on 26 July 2003. After satisfaction of secured and other creditors out of the proceeds of sale, Brumar was left with $994 400. By the time of the liquidation, Brumar was said to have had total assets of $50 000 and creditors totalling $400. After investigation by the liquidator, on 18 May 2005, the liquidator expressed the view that a distribution to creditors of close to 100c in the dollar would be likely, subject to the resolution of a dispute as to whether any debt in respect of the costs awarded against Brumar by Merkel J on 17 March 2005 was provable in the liquidation. The liquidator contended that such a debt could not be proved in the liquidation. For practical purposes, any surplus of assets over liabilities of Brumar would be more than exhausted by the payment of the penalty imposed by Merkel J and the payment of any costs ordered by his Honour. The prospect of the ACCC recovering any pecuniary penalty from Brumar appears to be non-existent. Accordingly, for reasons similar to those I have given with respect to Leahy in [58], I also refused the ACCC's application, pursuant to s 500(2) of the Corporations Act , for leave to proceed against Brumar.


case_text: However broad and flexible an understanding might be, for the purposes of s 45(2)(a) of the Trade Practices Act it must be a consensual dealing between parties. Like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court. Unlike an arrangement, it can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds. In Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 24 FLR 286 at 291, Smithers J (with whom Evatt J agreed) referred to what Diplock LJ said in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 2 All ER 807 at 819 in relation to English legislation in terms different from s 45(2) of the Trade Practices Act , and said: 'by parity of reasoning it would follow that the existence of an arrangement of the kind contemplated in s. 45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement. It seems to me also that an understanding must involve the meeting of two or more minds. Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act.'