case_outcome: considered

case_title: Hudson v Entsch [2005] FCA 557

case_text: The Commission also points to Hudson v Entsch [2005] FCA 557 where Dowsett J considered Mr Hudson's opposition to a costs order being made against him on the basis that, inter alia, the matter involved a significant question of public interest. His Honour held that that submission was the most significant and meritorious of Mr Hudson's arguments (at [5]) but that: ...there is great potential danger in allowing individual members of the public to decide that particular issues are of public interest if that means that others must pay for the ensuing litigation. An individual should not be encouraged to think that he or she can litigate without the risk of an order for costs in the event that he or she is unsuccessful, merely because he or she considers that there is some aspect of public interest to be vindicated in the litigation. The question is whether the first respondent or the applicant should bear the first respondent's costs of these proceedings. The applicant started the proceedings; the first respondent had no choice in the matter and resisted them. I consider that the better outcome is that the applicant pay those costs. 14 Mr Smith does not rely solely on the question of public interest in relation to costs. However, the Commission submits that, as in Entsch , Mr Smith started the proceedings and the Commission had no choice but to contest them. Accordingly, the Commission says, the Court should make an order that Mr Smith pay its costs. 15 In response, Mr Smith submits that the evidence before the Tribunal, which was also requested by discovery in his petition, will show that it was the Commission that ' caused my allegation and petition '.


case_text: The High Court has addressed costs orders under the Act in Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 and Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627.


case_text: The High Court has addressed costs orders under the Act in Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 and Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627. 9 In Nile , Deane and Toohey JJ (at 143) held that s 360(4) of the Act conferred a general power upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. Their Honours observed that the power should be exercised ' when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition '. The same view was taken by Gaudron J in Hudson (at 633). 10 The Commission seeks to distinguish these cases. It argues that in Nile , although Mrs Nile had been ordered to pay Mr Wood's costs, Deane and Toohey JJ had found that it was (at 143): ... now known that Mr Wood was not qualified to be elected as a senator. If that fact had been known at the conclusion of these proceedings, in which Mr Wood was defending his putative position as a senator, a question would have arisen about whether an order for costs should have been made in his favour. Be that as it may, we think that, on balance, the interests of justice would be served if Mrs Nile did not have to bear the ultimate burden of the order to pay Mr Wood's costs of the proceedings. 11 The Commission submits that although the Court in Nile had ordered that the Commonwealth pay the amount of costs which Mrs Nile had to pay to Mr Wood, it appeared to be of the view that Mrs Nile should not be financially penalised, as subsequent events demonstrated that there was some merit to her petition. The Commission argues that in the present case no subsequent events have occurred which demonstrate that there is any merit to Mr Smith's petition. 12 The Commission also notes that in Hudson , the petitioner applied for an order that the Commonwealth pay his costs. Justice Gaudron stated that the Act contained ' very few impediments ' against a person seeking to challenge an election in the Court of Disputed Returns (at 633) and concluded that in the circumstances where the petitioner was a person of ' limited means ' it was fair and just that the Commonwealth pay the respondent's costs (at 634). The Commission submits that in the present case there is no material before the Court regarding the capacity of Mr Smith to meet any costs order which may be made against him. 16 Mr Smith also relies on Nile at 143. He submits that the Court should have regard to what the ' constitutional consequences ' would be if the Australian Fishing and Lifestyle Party is found by the Tribunal to have been registered by fraud or misrepresentation and that this Court is aware of his allegations. He emphasises, again, that the inclusion of the Australian Fishing and Lifestyle Party on the Senate ballot was in contravention of the Act and says that that party was knowingly registered by the Commission despite having obtained registration by fraud or misrepresentation. 17 The Act contains few impediments to a person seeking to challenge an election in the Court of Disputed Returns. However, the assertion of public interest is not, of itself, sufficient reason to deny the Commission its costs. I have dismissed the petition. Section 371 of the Act provides that the ' Court may award costs against an unsuccessful party to the petition '. Mr Smith was the unsuccessful party in this case. I have no evidence of Mr Smith's financial capacity or otherwise to pay the costs. Mr Smith has not informed me of the basis of his application to the Tribunal other than to say that at the Tribunal hearing ' the Constitutional validity of the cause of [the] election petition...will be either confirmed or denied '. He asserts, and the Commission does not dispute, that the merit of his allegations will be determined in the Tribunal. 18 Mr Smith submits that the Court should defer its decision on costs until after the following events have occurred: 1. the appeal he has sought to file in the Full Court ' is heard and further evidence on questions of Constitutional fact from that Appeal can be filed to the High Court '. Mr Smith submits that this Court should award him his costs ' in the event that those Constitutional questions of fact are confirmed by Appeal or in the High Court '; 2. the Tribunal makes a ruling on the matter listed before it and where the constitutional validity of the election petition will be ' confirmed or denied '; 3. the Commonwealth Ombudsman decides on the matter of false statutory declarations that Mr Smith has put before him; 4. the Governor General decides on the constitutional matter Mr Smith has put before him of invalid certification of writs for the election; and 5. the Commonwealth Director of Public Prosecutions makes a decision on the matter of the false statutory declarations as an offence against the Commonwealth. 19 Mr Smith's main submission as to why each party should bear its own costs appears to be that, ultimately, it will be found that the matters alleged by him are true and that the Australian Fishing and Lifestyle Party was illegally registered by the Commission. As the petition was deficient, that determination was not made. Mr Smith has sought to appeal to the Full Court from my decision to dismiss the petition. If the Full Court should find in Mr Smith's favour it will be in the discretion of that Court to make appropriate costs orders. Those costs orders may include the costs of the hearing before me. Mr Smith has also instigated proceedings in the Tribunal. The Tribunal hearing has not taken place, so there has been no consideration of the merits of Mr Smith's case. 20 The proceedings before me are concluded. Mr Smith is not legally represented and his petition was dismissed because it failed to comply with s 355(a) of the Act, in that it did not set out the essential facts relied on to invalidate the election (at [16], [26] [27]). The remaining matters, as set out in [18], may disclose merit in Mr Smith's allegations. That would provide a basis for the exercise of discretion to conclude that, as in Nile , the interests of justice would be served if Mr Smith did not bear the Commission's costs. 21 If there is no merit in the allegations the subject of the petition, there is no basis on the material before me to decline to order Mr Smith to pay the Commission's costs. However, that cannot be determined at this stage. In my view it is in the interests of justice that the payment of costs await that determination. 22 As the proceedings in the Full Court, the Tribunal and possibly the High Court may take some time to resolve, in the interests of finality of litigation I will make an order pursuant to s 360(4) of the Act that the Commonwealth pay the respondent's costs. That means that each party will pay its own costs rather than defer for an indeterminate time the question whether Mr Smith should pay the Commission's costs of the hearing before me.


case_text: On 27 June 2008 I delivered judgment in Smith v Australian Electoral Commission [2008] FCA 953. Mr Smith filed a petition on 25 January 2008 under s 355 of the Commonwealth Electoral Act 1918 (Cth) ('the Act') in respect of the half Senate election held on 24 November 2007 ('the election'). Mr Smith was the No 1 Senate candidate for The Fishing Party, contesting the election in the above the line group ticket G. He alleged in his petition that the Australian Electoral Commission ('the Commission') had registered a political party, the Australian Fishing and Lifestyle Party, that contested the election and obtained its registration by "fraud or misrepresentation". The petition was filed in the High Court as the Court of Disputed Returns (s 354 of the Act) and the matter was referred to this Court on the application of the Commission. 2 The Commission sought an order that the petition be dismissed on the grounds that the petition fails to comply with s 358 of the Act and is doomed to failure. As the first of those grounds could be determinative of the petition, I considered it separately. 3 In Smith I determined that: 1. the statutory threshold had not been established and that the petition did not set out the essential facts relied on to invalidate the election as required by s 355(a) of the Act (at [16]); 2. the 40 day period in s 355(e) of the Act had expired and amendment to the petition was not available (at [19]); and 3. this was not a case of a lack of particularisation in the petition and, accordingly, amendment under s 355(aa) was not available (at [24] [25]). 4 I told the parties that I would hear them as to costs and the parties have now filed written submissions on this issue. 5 By letter of 30 June 2008 Mr Smith proposed that each party bear his or its own costs. He also proffered, as an alternative, that the Australian Government Solicitor's ('the AGS') costs could be paid by the Commonwealth under s 360(4) of the Act. Section 360(4) provides that: The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so . In written submissions filed later, Mr Smith clarified his position. He says that the Commission's costs, not the AGS' costs, should be paid by the Commonwealth. An order under s 360(4) would extend to an order that the Commonwealth pay the costs of the Commission. The Commission concedes that it is part of the Commonwealth and not a separate legal entity so, in effect, an order under s 360(4) that the Commonwealth pay the costs of the Commission would be an order that each party bear his or its own costs. Section 360(4) of the Act does not limit the circumstances in which the Commonwealth pays costs, in this case its own costs. 6 In his written submissions, Mr Smith also seeks orders that the Court defer its decision on costs until various matters relating to these proceedings are determined, including an application to the Administrative Appeals Tribunal ('the Tribunal') and an appeal from Smith to the Full Court. Mr Smith's primary submission is that, although I dismissed his petition for technical reasons, the underlying claim made by him remains ' unsolved '. He submits that the underlying claim will remain unsolved until the Tribunal deals with his application or until the Full Court, and ultimately the High Court, determines the appeal. 7 The Commission does not consent to Mr Smith's proposal that each party bear its own costs. The Commission seeks an order pursuant to s 371 of the Act that Mr Smith pay its costs of the proceedings before me on a party and party basis. Section 371 of the Act provides that the ' Court may award costs against an unsuccessful party to the petition '. The Commission submits that there is no reason why the Court should not exercise its discretion to order that Mr Smith pay its costs.


case_outcome: followed

case_text: these circumstances it is, I think, appropriate for a warrant to be issued under s 530C. Mr Broberg for the liquidator has provided me with a form of warrant which is based on the form granted in Australian Securities Commission v Samson (1997) 24 ACSR 555. With minor modification, I will direct that the warrant in those terms be issued to be executed at the place of business of the second defendant. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 11 December 2009 Counsel for the Plaintiff: Mr R Broberg Solicitor for the Plaintiff: Irlicht & Broberg Date of Hearing: 1 December 2009 Date of Judgment: 1 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1489.html


case_outcome: affirmed

case_text: This is an application brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act ") for review of a decision of the Administrative Appeals Tribunal ("the Tribunal") which refused an application for reinstatement under s 42A(10) of the AAT Act : see YBCF v Minister for Immigration and Citizenship [2007] AATA 1863. The application for reinstatement was filed in respect of an application to the Tribunal ("the review application") for review of a decision of a delegate of the second respondent which refused the grant of a protection visa to the applicant. The Tribunal's order dismissing the review application was made on 9 September 1996 pursuant to the filing of a notice of withdrawal by the applicant's representative. Since that date, the applicant has been involved in other unsuccessful proceedings seeking a protection visa under the Migration Act 1958 (Cth). 2 Section 42A(10) of the AAT Act enables the Tribunal to reinstate an application to the Tribunal which has been "dismissed in error". Under s 42A(6) , unless there is an order of reinstatement of a dismissed application, that application is taken to be concluded. 3 In relation to the present application for reinstatement, the Tribunal decided that the review application had not been dismissed in error because Mr Jones, the applicant's representative before the Tribunal in 1996, had in fact acted within his instructions when lodging a withdrawal of the review application.


case_text: Both the parties and the Tribunal discussed the decision of the Full Court in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 ; (2002) 121 FCR 383. In that case, the Full Court addressed at 388 what might constitute an "error" for the purposes of an application for reinstatement under s 42A(10) of the AAT Act : 'The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".' Having considered the material before it, the Full Court found that the word "error" is not limited to administrative errors on the part of the Tribunal. Rather, the term could include errors of any kind which related to the application before the Tribunal and which were operative in leading to the dismissal of that application. An example of such an error is a mistake by the applicant's legal or other representative, such as misconstruing the applicant's instructions, thereby inducing an erroneous dismissal of the application by the Tribunal. 8 Counsel for the applicant submitted that, on its face, the Tribunal's reasons disclose error. Mr Karp pointed to the observation at [11] in the reasons of the Tribunal that the applicant's evidence suggested that he did not have any view as to whether the Tribunal proceedings should be commenced or concluded. Mr Karp submitted that the Tribunal, because it neither considered nor found that there was "informed consent" on the part of the applicant to the withdrawal of the review application, but rather simply observed that the applicant had given general instructions to Mr Jones to procure a particular outcome by whatever means he thought best, thus committed jurisdictional error. 9 There are two difficulties with this submission. The first is that it is contrary to, and therefore seeks to challenge, the express finding by the Tribunal at [12] that there was no evidence that Mr Jones erred in the execution of the instructions given to him by the applicant. 10 The second difficulty is that the Tribunal at [6] specifically considered the principle expressed in Goldie 121 FCR at 388 that a mistake by a representative of an applicant could, in certain circumstances, induce an "error" sufficient to ground an application for reinstatement. It is not to be lightly inferred that, having expressly referred to this principle, the Tribunal would ignore it when making a determination. The Tribunal also considered the statement of issues prepared by Mr Jones concerning the proposed withdrawal of the applicant's review application, and the statement by the applicant that he was unaware of the decision to withdraw. Having done so, the Tribunal found at [12] that the evidence indicated that Mr Jones had not misunderstood or failed to execute the instructions given to him by the applicant. This conclusion is a finding of fact which was open to the Tribunal on the evidence before it, and which took into account the Full Court's observations in Goldie 121 FCR at 388. Accordingly, there is no error of law shown in the reasoning of the Tribunal in relation to this issue. 11 In addition to the submissions advanced by Mr Karp and discussed above, the original Notice of Appeal recites five grounds of appeal. None of these grounds are established in the present case. 12 The first ground alleges that the Tribunal's reasons disclose jurisdictional error and breach rules of natural justice. This ground of appeal must be rejected. Neither the assertion of jurisdictional error nor the assertion of a breach of natural justice are relevant to the decision under review, which concerns whether or not an application should be reinstated, and does not address the merits of any claim to refugee status. 13 The second ground of appeal alleges that the Tribunal failed to consider specific material relevant to the application for reinstatement. This ground fails because the reasons of the Tribunal disclose that the material was referred to and considered. 14 The third ground also alleges that the Tribunal failed to consider certain information. This ground must fail because it discloses no basis on which the Tribunal can be said to have ignored the information, or on which the information can be said to be of such importance that a failure to address it would constitute jurisdictional error. This ground may also be interpreted as alleging that the applicant did not consent to the withdrawal of the review application, and thus the Tribunal's reasons fell into error. For the reasons given above, this submission cannot be accepted.


case_outcome: cited

case_text: The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1901 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the FCA. The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) CLR 507. The question on appeal is whether the FMC decision is affected by some legal, factual or other error : Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] . Section 28(1)(a) and (b) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination.


case_text: In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.


case_text: In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342. 22 The appellant may have had a sense of unease that his s 424A response letter was not properly considered because it was received by the RRT on the same day as the RRT's decision and that the decision was accordingly predetermined. However, more than a sense of disquiet is required to make good a claim of apprehended bias. Even a reasonable apprehension of bias must be "firmly established": Forge . 23 There is no basis, let alone a firm basis, to make good a claim of apprehended bias on the part of the RRT. The appellant's submissions are based upon a misconception of the RRT and its processes. 24 First, as the history of the proceedings before the RRT demonstrates (see [14] to [18] above), the RRT heard the appellant's application for review of the delegate's decision over two days. Secondly, at the conclusion of that hearing, the RRT prepared a detailed s 424 letter. A s 424A letter is not produced in a vacuum. So much is made clear by the express words of s 424A(1) of the Act. It provides, so far as is relevant: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it.


case_outcome: applied

case_text: It is not sufficient if a reasonable bystander " has a vague sense of unease or disquiet " ( Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (per Weinberg J)).


case_text: Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).


case_text: The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.


case_text: The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1901 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the FCA. The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) CLR 507. The question on appeal is whether the FMC decision is affected by some legal, factual or other error : Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] . Section 28(1)(a) and (b) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination. 20 In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.


case_title: NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24


case_title: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088


case_text: The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 11 Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).


case_title: Rana v Australian Federal Police [2006] FCAFC 169


case_title: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425


case_title: Servos v Repatriation Commission (1995) 56 FCR 377


case_title: STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546


case_title: SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627


case_title: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54


case_text: I was referred to a passage from the reasons of Nettle JA in Steutel v Kimple Pty Ltd [2005] VSCA 312 which seems to me to be apposite to this case. At [43] his Honour said: 'But as Chernov JA makes plain, conduct is only misleading or deceptive if it is capable of inducing error. Whether it is misleading or deceptive is therefore a question of fact to be determined in the context of the known facts and circumstances. In the end, conduct cannot be characterised as misleading or deceptive unless it conveys a misrepresentation. And if the circumstances of its communication, and the state of knowledge of the recipient, are such as to prevent misrepresentation, it matters not that in other circumstances the result could have been different.' 178 In each proceeding the application must be dismissed with costs. 179 No substantive attempt was made by 1800 and the Jacobsons to press their amended cross-claims against Bannerhey and the Grettons or against the Hortons, apart from four paragraphs at the conclusion of the respondents' written submissions, and even they were confined to the alleged undischarged obligations of the applicants to pay the amounts to the respective Territory Promotion Funds pursuant to clause 14.16.1 of the respective Master Licence Agreements - $50,000 in the case of Bannerhey and $100,000 in the case of the Hortons. The applicants both submitted that the cross-claims were baseless given the respondents misleading and deceptive conduct. Effectively, there was no other submission.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: For the reasons set out below I am not satisfied that this is a case in which departure from the ordinary rule according to which a notice of appeal is to be filed and served within a time period prescribed by O 52 r 15(1)(a) is justified (see Jess v Scott (1986) 12 FCR 187). Indeed, I am satisfied that it would be contrary to the public interest for any discretionary relief to be granted to this applicant for the purpose of allowing him to pursue further the application made by him for a protection visa. 4 The applicant arrived in Australia from the People's Republic of China ('the PRC') on 17 May 2000. He applied for a protection visa, using a name which he now acknowledges is not his true name, on an application form which he signed in Chinese characters on 12 November 2000. The application contains an acknowledgment that the applicant had received help completing the form from a registered migration agent, Pricilla International Co Pty Ltd ('Pricilla'). Accompanying the applicant's application for a protection visa is a further document, again signed by the applicant in Chinese characters, by which he appointed Pricilla to act as his agent in dealings with the Department of Immigration and Ethnic Affairs ('the Department'). 5 Annexed to the application is a three page statement in English ('the Statement') which is also signed by the applicant in Chinese characters. It is reasonable to assume that an officer or employee of Pricilla had some involvement in the preparation and completion of all of the documents associated with the applicant's application for a protection visa, including the Statement. It is necessary to refer in some detail below to aspects of the Statement.


case_text: The draft notice of appeal upon which the applicant, by his counsel, indicated that he would rely should he be granted the extension of time sought by him raised three grounds of appeal. The first proposed ground of appeal alleges that the Tribunal constructively failed to exercise its jurisdiction in relation to a critical element of the applicant's claim. The particulars of this ground reveal that it is solely concerned with the alleged failure of the Tribunal to understand the case of the applicant with respect to the issue of his passport. The applicant is seeking an extension of time within which to institute an appeal from the judgment of the Federal Magistrates Court. This ground of appeal must therefore be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. As it was not argued before the Federal Magistrates Court that the Tribunal erred in this regard, the applicant's ability to rely on this ground of appeal is dependent on a finding by this Court that it is expedient in the interests of justice to allow him to rely on the ground (see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134). 18 The second proposed ground of appeal raised by the draft notice of appeal alleges that the Tribunal erred in a manner amounting to jurisdictional error in the way in which it gave consideration to whether the applicant would face a real risk of persecution as an ordinary practitioner of Falun Gong should he be required to return to the PRC. As in the case of the first of the proposed grounds of appeal, this proposed ground of appeal must be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. 19 The third proposed ground of appeal raised by the draft notice of appeal contends that the Federal Magistrate erred in declining to consider an affidavit filed by the applicant in the Federal Magistrates Court containing information about the applicant's association with the Falun Gong movement in Australia. The Federal Magistrate refused to consider the affidavit on the basis that the evidence contained in it had not been before the Tribunal.


case_text: Understandably, the applicant did not argue that the application for a protection visa which was made with his authority and signed by him, albeit in a false name, was not a valid application (see NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199). 31 I conclude that the applicant's application for a protection visa constituted an attempt to practise deception on the Minister. I am satisfied that he knew that the application had been made in a name that was not his true name. I am further satisfied that the applicant either knew that the Statement was false in material particulars or alternatively took no steps to ensure that the Statement was accurate. The applicant's application to the Tribunal was similarly pressed on a false basis as was his appeal to the Federal Magistrates Court. It was understandably not suggested that the applicant was not throughout aware that his true identity and the contents of the Statement formed critical aspects of his application for a protection visa. 32 The applicant seeks discretionary relief from this Court. In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court declined to grant discretionary relief to an appellant who had attempted to practise deception on the Minister noting at [14] that: 'It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.' 33 In my view, this is also a case in which the public interest requires that discretionary relief be denied to the applicant. The evidence does not support any suggestion, and it was not so submitted, that what the applicant sought to do was simply, in the words of Shakespeare, ' [to] gild refined gold, to paint the lily' (see King John Act IV Scene II). The applicant's application for a protection visa does not merely exaggerate the applicant's experiences in the PRC. The applicant applied for a protection visa using a name that was not his own. As mentioned above, I am satisfied that he did this knowingly and that he has either known throughout the time that he has asserted an entitlement to a protection visa that the contents of the Statement are false in material respects or alternatively that he has been recklessly indifferent concerning the accuracy of the Statement. 34 Moreover, if the applicant were to be allowed to appeal from the judgment of the Federal Magistrates Court, it is unclear what claims it will be asserted that the learned Federal Magistrate should have regarded as the legitimate subject matter of the review conducted by the Tribunal.


case_outcome: referred to

case_text: In Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69, the claimant had an accepted schizophrenic condition. That was a permanent impairment that the claimant had prior to 1 December 1988. There was no entitlement to compensation by way of a lump sum for that condition under the 1971 Act. The claimant's condition worsened after 1 December 1988. The question was whether the claimant's claim under the SRC Act should be allowed. After reviewing the authorities, Mansfield J said (at [28]) that the following was a correct summary of the state of the law: '1. The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment. 2. If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment. 3. A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying path-physiological condition, so that there has been a qualitative change to the impairment that is, the development of a new impairment.' 33 On the evidence in this case, the deterioration in the applicant's hearing loss was an effect of ageing and that means that it was not a new or further impairment in the relevant sense. The applicant has already received compensation of a lump sum in respect of his hearing loss under the 1971 Act. Any claim for compensation of a lump sum in relation to a deterioration of that condition of the nature indicated is precluded by s 124(3)(a) of the SRC Act. 34 As I have said, there is no evidence of a deterioration of the applicant's tinnitus, but even if it has deteriorated, there is nothing to suggest that that deterioration is other than a progression or gradual worsening of the condition. Tinnitus was not a compensable condition under the 1930 Act or the 1971 Act. Any claim for compensation of a lump sum in relation to that condition or a deterioration of that condition of the nature indicated is precluded by s 124(3)(b) of the SRC Act. 35 The claim in relation to the conditions of loss of balance and stress were not the subject of any debate before the Tribunal. The applicant's case is that those conditions were permanent impairments that occurred in 1970. The applicant's claim for compensation of a lump sum in relation to those conditions in these proceedings cannot succeed for a number of reasons.


case_title: Comcare v Mooi (1996) 69 FCR 439

case_text: Finally, although there are related conditions or effects under the SRC Act (eg, vertigo), loss of balance and stress are not of themselves conditions compensable under the approved guide prepared under s 28 of the SRC Act (see also Comcare v Mooi (1996) 69 FCR 439). 39 In my opinion, the proposed appeal is futile and doomed to fail and, in those circumstances, the application for an extension of time within which to appeal should be dismissed. 40 The application for an extension of time within which to appeal is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 27 July 2006 The Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 May 2006 Date of Judgment: 27 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/946.html


case_text: In Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651, the question was whether a deterioration in the claimant's lumbar spine and an impairment in both legs were new impairments for the purpose of a claim for compensation under the SRC Act. Merkel J (with whom O'Connor J agreed) stated the relevant principles in the following passages from his reasons for judgment (at 668 and 669): 'The present state of the authorities can be summarised as follows: • the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation: see Blackman at 14 and Brennan at FCR 570 1 per Gummow J; cf Brennan at FCR 558 9 per Burchett J; • the observation in Blackman at 14 that a permanent impairment which worsens significantly or is such that the variation between it and the earlier permanent impairment is substantial does not result in a new permanent impairment is to be approached with "some caution": see Brennan at FCR 558 9 and 560 1 per Burchett J and at 571 per Gummow J and Levett at FCR 20. The present case requires resolution of the question left unresolved in the current state of the authorities, that is, whether a deterioration in a permanent impairment which existed as at 1 December 1988 is capable of constituting a new permanent impairment. The caution expressed in relation to Blackman by Burchett and Gummow JJ in Brennan and adopted by the Full Court in Levett suggests a reluctance to accept that a substantial variation, or a significant deterioration, in a person's permanent impairment is incapable of constituting a permanent impairment which is different to that which existed prior to the variation or deterioration. ... A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan , where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at FCR 559 and the cases there referred to.'


case_title: Lees v Comcare (1999) 56 ALD 84

case_text: First, it was the claim for loss of hearing which was the subject of the reconsideration under s 62 of the SRC Act. In those circumstances, it seems that a claim in relation to loss of balance and stress could not have been considered by the Tribunal: Lees v Comcare (1999) 56 ALD 84. 37 Secondly, the applicant's case is that the conditions of loss of balance and stress were permanent impairments which occurred in 1970. Those conditions were not impairments for which there was an entitlement to compensation of a lump sum under the 1930 Act or the 1971 Act. Accordingly, there was no entitlement to receive compensation of a lump sum in relation to them under the SRC Act: s 124(3)(b) of the SRC Act.


case_text: In forming this opinion, the Repatriation Commission is required to decide the matter to its reasonable satisfaction; s 120(4). This requires the Commission to ask itself whether it was satisfied on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327. Section 120 does not impose an onus of proof on the applicant for a pension or on the Commission; s 120(6). Nevertheless, the Commission can only reach the requisite state of satisfaction if two conditions are fulfilled; s 120B(3). First, the material before the Commission must raise a connection between the disease and some particular service rendered by the person. Secondly, where there is a Statement of Principles in force concerning that disease, that Statement of Principles must uphold the contention that the disease is, on the balance of probabilities, connected with the service. 8 Statements of Principles are determined by the Repatriation Medical Authority; s 196B(1). They set out the factors that must be present and must be related to service before it can be said that, on the balance of probabilities, a disease can be connected with the service; s 196B(3). Subsection 196B(14)(d) states that a factor causing or contributing to a disease is related to service if: (d) it was contributed to in a material degree by, or was aggravated by, that service; ... 9 The Authority has determined a Statement of Principles, Instrument No. 16 of 1998, for IFA. This Statement of Principles holds that, in order for IFA to be connected with the circumstances of defence service, there must have been an "inability to obtain appropriate clinical management" for the condition; see clause 5(a). This applies only where IFA was contracted before or during service (although not arising out of that service), but was materially contributed to or aggravated by that service; see clause 6.


case_outcome: distinguished

case_text: The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649 , Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation ( Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80) , it seems to me that a person in Mr Money's position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it.


case_title: Repatriation Commission v Wedekind [2000] FCA 649


case_text: The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649 , Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation ( Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80) , it seems to me that a person in Mr Money's position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it. 41 The applicant submits that the correct construction in this matter is that adopted in Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80 , namely, that as a matter of practical reality, "inability" requires barriers to obtaining appropriate clinical management. The applicant submits that it could not be said that the same outcome would have resulted if the Tribunal had considered this meaning. I do not think that the applicant has been able to establish this. As Burchett J expressed it in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, the issue "turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error". 42 The Tribunal clearly found that there was an inability to obtain appropriate clinical management; it expressly states so in [82] of its reasons. Although the Tribunal made no express findings as to why the identified systemic failures in the naval medical system presented a barrier to Mr Money receiving appropriate clinical management, it is implicit in its reasons that Mr Money was reliant upon the Navy's medical system during his period of service. As a matter of practical reality, a person in Mr Money's position could not reasonably have been expected to take steps to obtain medical care beyond that offered by the Navy; see Brew at 88. The applicant has not demonstrated that the Tribunal applied an incorrect construction. 43 In addressing the question of whether the inability to obtain appropriate clinical management had aggravated Mr Money's IFA, Dr Waring expressed slightly different opinions. In the earlier report (13 April 2004) Dr Waring discussed the usual form of treatment in the 1970s which was usually high dose prednisolone, an immunosuppressant. He said that it was "serendipitously appropriate" that Mr Money was not given this treatment because more recent studies have "not demonstrated any benefit from prednisolone therapy for the interstitial lung disease that has been diagnosed on lung biopsy". He added: Having said this, the majority of chest physicians still consider a trial of prednisolone therapy, especially in young otherwise fit patients, who are likely to tolerate the drug relatively well. [Emphasis added] 44 Dr Waring also commented that the naturally slow progression of Mr Money's disease would not have been expected if it had been diagnosed in the 1970s, and added that, in retrospect, this slow progress meant that the side effects of prednisolone therapy would have out-weighed any benefit he might have received had he been given this treatment. He summarised his view by saying that "the lack of appropriate clinical management may have, but probably has not aggravated his condition". [Original emphasis]


case_text: The applicant submits that the correct construction in this matter is that adopted in Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80 , namely, that as a matter of practical reality, "inability" requires barriers to obtaining appropriate clinical management. The applicant submits that it could not be said that the same outcome would have resulted if the Tribunal had considered this meaning. I do not think that the applicant has been able to establish this. As Burchett J expressed it in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, the issue "turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error".


case_text: In Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598 , Fox, Deane and Morling JJ said at 601: An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. 51 The applicant argues that there was no material before the Tribunal capable of supporting a finding that there were barriers to Mr Money obtaining appropriate clinical management for his IFA. As discussed above, I am of the view that a failure to diagnose is sufficient to create a barrier to obtaining appropriate clinical management, and the evidence in this case is that a diagnosis could have been made in 1979. 52 The applicant submits that there was no material before the Tribunal capable of supporting the finding that Mr Money did not receive appropriate clinical management. This submission is founded on the equation of appropriate management with appropriate treatment and the contemporary absence of any effective treatment; two contentions which I have rejected above. In any event, there was expert evidence before the Tribunal that Mr Money did not receive appropriate clinical management. Dr Waring gave this opinion in his letter to the departmental medical officer dated 13 April 2004 and in his report dated 8 March 2005. Both of these reports are discussed in the context of the first ground of appeal. That discussion shows that there was considerable evidence on the point and that this 'no evidence' ground must fail. 53 The applicant claims that the Tribunal was required to find whether any inability to obtain appropriate clinical management was related to Mr Money's service in one of the ways set out in s 196B(14). The applicant further claims that the Tribunal failed to make such a finding.


case_text: The Tribunal's discussion of the applicable law includes, at [28], an explicit acknowledgement that the "relationship to service must be one of the relationships prescribed in s 196B(14) of the Act". As noted above, one of those relationships is that prescribed by s 196B(14)(a), which states that a factor contributing to a disease (here, inability to obtain appropriate clinical management) can be related to service if it "resulted from an occurrence that happened while the person was rendering that service". In its reasons, the Tribunal explicitly found that one of the circumstances of Mr Money's service and therefore an occurrence during his service was that "the Navy's medical system, on this particular occasion, failed to deliver appropriate clinical management" to Mr Money. Additional examples of the "systems failure in the medical management structure that the Navy had in place in relation to this applicant's disease at that time" were given by the Tribunal and are described above at [26] et seq. Bearing in mind that the Tribunal's reasons should "not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272), it is clear that the Tribunal has found that Mr Money's inability to obtain appropriate clinical management for his IFA resulted from occurrences while he was serving in the Navy.


case_text: The applicant submits that the Tribunal was in error in considering that the issue was governed by the decision of the High Court in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626. Alternatively, it submits that if Federal Broom were applicable, it would require the Tribunal to turn its mind to whether Mr Money's inability to obtain appropriate clinical management was a state of affairs to which he would not otherwise have been exposed - presumably if he had not been in the Navy at the relevant time. The applicant submits that a similar comparative exercise is required by Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 337-8. In my view, it is clear that the Tribunal did consider this issue. Implicit in the finding that the naval doctor's "clinical management fell short of the level required" is the finding that other doctors would be capable of meeting that standard. Mr Money could self-evidently not have been subject to a systemic failure of the Navy's medical management structure if he had not been serving in the Navy. Accordingly, this ground must fail.


case_text: The applicant submits that the Tribunal was in error in considering that the issue was governed by the decision of the High Court in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626. Alternatively, it submits that if Federal Broom were applicable, it would require the Tribunal to turn its mind to whether Mr Money's inability to obtain appropriate clinical management was a state of affairs to which he would not otherwise have been exposed - presumably if he had not been in the Navy at the relevant time. The applicant submits that a similar comparative exercise is required by Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 337-8. In my view, it is clear that the Tribunal did consider this issue. Implicit in the finding that the naval doctor's "clinical management fell short of the level required" is the finding that other doctors would be capable of meeting that standard. Mr Money could self-evidently not have been subject to a systemic failure of the Navy's medical management structure if he had not been serving in the Navy. Accordingly, this ground must fail. 58 The applicant argues that there was no evidence before the Tribunal that any inability to obtain appropriate clinical management had contributed materially to, or aggravated, Mr Money's IFA. The applicant submits that the evidence does not demonstrate that Mr Money's defence service made his IFA worse than it otherwise would have been; Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 338. 59 I have already held that a factor not being mentioned in the Statement of Principles is not inconsistent with it being a factor that aggravates a disease, though it cannot of itself be a factor that creates a connection with defence service. Dr Waring's report refers to Mr Money's exposure to poor atmospheric conditions while serving in submarines, notes that if his IFA had been correctly diagnosed it would have been reasonable to recommend that he no longer serve in submarines, and states that it is likely that his continued exposure could have exacerbated his condition. The Tribunal relied on this evidence; see [73]. There was material before the Tribunal upon which it could base its conclusion that Mr Money's condition was aggravated by the failure to diagnose it. It is not for this Court to substitute its opinion as to the appropriate weight that should be given to that evidence. That is a task for the Tribunal. It is sufficient for this Court to note that there was some real evidence for it to reject this 'no evidence' claim.


case_text: The applicant drew the Court's attention to the requirement that mere de minimus aggravation of IFA would not suffice, given the requirements of clause 6 of the Statement of Principles; see Repatriation Commission v Bendy (1989) 10 AAR 323 at 330. It could not, however, point to any evidence that the aggravation identified by the expert would have been de minimus . This ground must fail. 61 The Tribunal found that Mr Money's service in submarines " could (via the fumes that he had to inhale), have aggravated his IFA" [emphasis added]. The applicant argues that the Tribunal here misconceived its task, which is to decide to its reasonable satisfaction whether the fumes aggravated Mr Money's IFA, as required by s 120(4). 62 The Tribunal has failed to express its satisfaction on the balance of probabilities that Mr Money's submarine service aggravated his IFA. The Tribunal's treatment of this topic nonetheless implies that it was satisfied to the appropriate standard on this point. In any event, even if this implication cannot be drawn, the Tribunal identified other aggravating factors, primarily smoking. The Tribunal laid out the measures that could have been taken to protect Mr Money's lung capacity, but which were not instituted: The prophylactic measures appropriate to the applicant's disease are: • making sure that the applicant has his yearly flu vaccine and five yearly pneumococcal vaccine, and having antibiotics at hand so he could promptly start taking them at the start of infection, and therefore not be delayed waiting for doctor's appointments etc; • advising him to stop smoking; • keeping him under long term surveillance; • regular monitoring of his lung function by non invasive testing; and • explaining the importance of losing weight to the patient. The Tribunal said that these measures "would have protected [Mr Money's] spare lung capacity that was being inexorably eroded".


case_text: The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers". Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53.


case_text: Whilst the appellant relied upon the decisions of the Full Court in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 , neither have application to the present proceedings since each of those cases concern service with regard to an 'authorised recipient' . For reasons referred to above, there was no appointment of such person in the present proceedings.


case_text: His Honour also noted that the original Application for Review was made before s 441G of the Act became operational and that the nomination of the migration agent in the application for review could not have been made in the context of an 'authorised recipient' as provided by s 441G of the Act. However, the parties proceeded on the basis that when s 411G did become operational, it rendered the appellant's migration agent the authorised recipient for the purpose of the section. His Honour followed the decision of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 to deem that the appellant had received the invitation, notwithstanding that under s 441G of the Act the invitation ' must ' be sent to the appellant's authorised recipient. 21 Although finding that the Tribunal acted correctly in respect of service of the notice, Nicholls FM found that the Tribunal did not comply with the relevant statutory requirements in respect of the period of notice. His Honour found that there was jurisdictional error in the procedures of the Tribunal. His Honour noted that s 425A(3) in conjunction with Regulation 4.35D(b) of the Migration Regulations 1994 (Cth) ('the Regulations') stipulated that the prescribed period for giving notice of an invitation to a hearing starts when the appellant receives notice of the invitation and ends at the expiration of 14 days after the day on which notice is received. His Honour also noted that s 441A(4) of the Act provided a method by which the Tribunal gives a document to a person is to date the document and dispatch it by prepaid post within 3 working days to the last address for service, or last residential or business address provided by the appellant. His Honour also noted that section 441C(4)(a) of the Act relevantly provides that a person is taken to have received a document from the Tribunal 7 working days after the date of the document. 22 In applying the legislation to the facts his Honour found that the date of the invitation to the hearing was 31 January 2002 and that the invitation was sent by prepaid post to the migration agent and the appellant at his residential address on 1 February 2002, thus within the requisite 3 working days. His Honour found that the migration agent would be deemed to have received the letter of invitation on Monday 11 February 2002. Pursuant to Regulation 4.35D(b) the period of notice required in relation to an invitation to attend a hearing in the case would have ended 14 days later on Monday 25 February 2002. The hearing was set for 22 February 2002 and thus the period of notice was deficient by 3 days. His Honour accordingly found that the Tribunal did not satisfy the requirements of the prescribed period of notice both for the letter sent to the migration agent and the letter sent to the appellant pursuant to s 425A(3) of the Act.


case_text: The appellant claims that, since s 422B was not in force at the time there had been common law unfairness by the Tribunal. However, the Tribunal satisfied the statutory requirements in respect of the issue and service of the invitation under s 425A of the Act. Further, receipt is deemed to have been effected by the provisions of s 441C. Since the statutory procedure was adopted, there is no basis for a finding of a denial of procedural fairness: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 373. 42 As stated previously, Nicholls FM observed that no evidence had been led by the appellant to show that the appellant's advisor had not received a copy of the invitation. There is however evidence that the Tribunal contacted the adviser by telephone and was informed that the appellant was unlikely to attend but that efforts would be made to contact him. Nothing further was heard and no application was made to the Tribunal to adjourn the hearing. It follows that this ground of appeal must be dismissed. 43 Although Nicholls FM found that there had been a breach of the statutory requirements concerning the provision of notice in the s 425A invitation, he declined to remit the matter to the Tribunal in the exercise of his discretion. His discretion was so exercised after a detailed investigation of the facts and circumstances surrounding the appellant's application.


case_title: Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495


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


case_text: Nicholls FM, referring to the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 observed that the grant of relief of the nature sought by the appellant (writs under s 75(v) of the Constitution ) is discretionary and may be refused if the conduct of a party is inconsistent with the grant of such relief for reasons of, inter alia, unwarrantable delay, acquiescence or waiver or unclean hands on the part of the party seeking relief. 26 Nicholls FM was satisfied that the appellant would have known of the Tribunal's decision to affirm the Minister's refusal of his application for a protection visa by mid November 2004. Nicholls FM found that since the appellant's application for review to the Federal Magistrates Court was not made until May 2005, there was an unwarrantable delay by the appellant in pursuing his appeal. Nicholls FM considered that the appellant's conduct in pursuing the s 48B Application rather than seeking review of the Tribunal's decision of 27 February 2002 showed that the appellant lacked the sense of grievance or urgency that the appellant had subsequently asserted. Nicholls FM was also of the view that the appellant demonstrated 'unclean hands' due to inconsistencies in the appellant's evidence and submissions. Accordingly his Honour refused to exercise his discretion to grant the relief sought by the appellant and dismissed the application. 27 By Notice of Appeal dated 3 May 2006 the appellant raises the following grounds of review: the Federal Magistrate erred by not finding that the Tribunal failed to accord the appellant procedural fairness in that the Tribunal failed to follow the procedures required by s 425A(1) and s 441G(1) of the Act; the Federal Magistrate erred in not remitting the matter to the Tribunal even though a breach of procedural fairness existed; and the Tribunal failed to accord the appellant procedural fairness in its failure to give the appellant an opportunity to comment upon the country information reports which were taken into account by the Tribunal. 28 The appellant submits that since s 441A of the Act had commenced operation by the time the invitation to the Tribunal's hearing was sent, it was necessary for the Tribunal to send the letter to the 'authorised recipient' as required by s 441G. The Tribunal failed to do so and accordingly service of the invitation was defective. 29 It is essential to consider the legislative regime which applied at the time of the appellant's original Application for Review. The original Application for Review was received by the Tribunal on 10 November 2000 under cover of a facsimile sheet provided by the appellant's adviser, Kamlesh Singh. The address on the fax coversheet was nominated as 16 Blue Hills Avenue, Mount Waverley, Victoria.


case_text: The Court has considered the statements of principle referred to in the above decisions but does not consider that they address the issue which Nicholls FM had before him. The appellant had chosen deliberately to pursue alternate means of obtaining a visa rather than to challenge the decision which had been made by the Tribunal. Nicholls FM exercised his discretion in determining whether to grant the relief sought by the appellant for the established breach: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28] and [49]-[59]. His Honour was entitled to find, on the evidence before him, that the appellant had engaged in conduct inconsistent with his recently stated grievance, had acquiesced in the Tribunal's decision and came to the Court with 'unclean hands'.


case_text: As the proceedings were commenced prior to the enactment of s 422B of the Act, Nicholls FM also had regard to the question whether the requirements of common law procedural fairness were met by the Tribunal in relation to the hearing invitation. His Honour had regard to the decisions of Smith FM in SZDOG v Minister for Immigration [2004] FMCA 972 and SZEMB v Minister for Immigration [2005] FMCA 448. In these decisions the discretion of the Tribunal to proceed to determination of the application under s 426A(1) of the Act was vitiated because the Tribunal failed to address considerations relevant to the exercise of that discretion. However his Honour distinguished such decisions on their facts. In SZDOG , the Tribunal had drawn a mistaken positive conclusion that the appellant had shown a deliberate lack of interest in his application. In SZEMB the Tribunal proceeded to make a final decision on the mistaken belief that the agent had been notified with sufficient time for him to make significant efforts to contact his client. No such considerations applied in the present circumstances.


case_title: SZEMB v Minister for Immigration [2005] FMCA 448


case_title: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63


case_title: SZHRF v Minister for Immigration [2006] FMCA 766


case_text: these principles are applicable in this case is clear from a number of recent judgments of this Court (see Besanko J in SZGCH v Minister for Immigration & Multicultural Affairs [2006] FCA 809 at par 14; Sundberg J in MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544 at par 8).


case_text: the first respondent in written submissions cited Niemann v Electronic Industries Ltd [1978] VR 431 as authority that the following principles are applicable to the grant of leave to appeal: (a) whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong. In respect of the principles in Niemann the first respondent submitted the following: • the application does not create any doubt as to the correctness of the judgment of Driver FM, much less sufficient doubt, to warrant reconsideration by this Court • no error is raised as to the approach or findings of Driver FM • Driver FM was plainly correct to dismiss the application for the reasons he did • the Court ought not to interfere with the exercise of judicial discretion in the making of an interlocutory decision unless it is satisfied that there has been some error of law or logic or some unfairness which is apparent on the face of the reasons or implicit in the result • no substantial injustice would result because there is no error in the Tribunal's decision.


case_title: SZGCH v Minister for Immigration & Multicultural Affairs [2006] FCA 809


case_text: My consideration of the provisions for the no-shop and break fee provisions in this case has led me to the view that it would be desirable that applications under s 411(1) be supported by affidavit evidence directed to showing: • that the no-shop and break fee provisions are the result of a normal commercial negotiation, and explaining, at least briefly and in general terms, the factual basis for that statement (see [46] above); • that the directors of the target company, or at least those directors of it who are not affiliated with the offeror, believe that the provisions do not operate against the interests of offeree shareholders, and that in fact it was in the interests of such shareholders that the directors agreed to the inclusion of the provisions in the merger implementation agreement (see [46] above and In re Paramount Communications Inc Shareholders' Litigation 637 A2d 34 (Del Supr 1993) for a case in which a target company's directors' commitment to no-shop and break fee provisions was held, in all the circumstances, to constitute a breach of their fiduciary duty); and • in the case of the break fee, explaining, by reference to calculations based on the evidence before the Court, the percentage that the break fee represents (a) of the "equity value" of the target company, calculated in accordance with para 7.18 of the Takeovers Panel's Guidance Note 7, and (b) of the scheme consideration (the explanation might, instead, be conveyed in a submission, but still by reference to the evidence before the Court). If the independent expert is in a position to express an opinion on the matter (see s 79 of the Evidence Act 1995 (Cth)), the expert should state whether the no-shop and break fee provisions appear to be reasonable and not detrimental to the interests of shareholders, and if so, the basis for that opinion. Of course, the independent expert's opinions that agreement to the Scheme is in the best interests of the offeree shareholders and that no superior proposal is likely to be made, must not have been arrived at as a result of the very existence of the no-shop and break fee provisions (see [52] above). Convertible Notes and Options 56 The Scheme Booklet discloses, at sections 11.8 and 11.9 , the existence of convertible notes in APN and of options under an "APN Option Plan". Although the proposed Scheme is between APN and Offeree Shareholders (not option holders), INMAL is making an offer to all option holders to acquire their options at a price per option of $6.20 less the option exercise price. The acquisition by INMAL of the options is, naturally, conditional on the Scheme becoming effective. 57 As noted at [16](i) above, the Scheme provides for a deemed warranty by the APN Scheme participants of freedom from encumbrances. The deemed warranty is found in cl 3.4 of the Scheme document which provides: 3.4 Warranties by Scheme Participants Each Scheme Participant is deemed to have warranted to APN and appointed and authorised APN as its attorney and agent to warrant to INMAL, that all its APN Scheme Shares (including any rights and entitlements attaching to those shares) which are transferred to INMAL under the Scheme will, at the date of the transfer of the APN Scheme Shares to INMAL, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and any restrictions on their transfer and that it has the full power and capacity to sell and transfer its APN Scheme Shares (including any rights and entitlements) to INMAL under the Scheme.


case_outcome: discussed

case_text: In Re Arthur Yates & Co Ltd (2001) 36 ACSR 758, Santow J gave attention to no-shop provisions. His Honour expressed the opinion (at [9]) that such a provision should satisfy the following concerns: (a) it should be for no more than a reasonable period capable of precise ascertainment; (b) while it may differentiate between actively soliciting an alternative merger proposal and simply dealing with an unsolicited one, in either case the provision should be framed so that it is subject to the overriding obligation not to breach the directors' fiduciary duties or be otherwise unlawful; and (c) there should be adequate prominence given to the provision in the explanatory memorandum sent to shareholders. 30 Are these three requirements satisfied in the present case? 31 (a) As noted, the Exclusivity Period in this case runs from the date of the SIA to the date when the Scheme becomes effective pursuant to the Court's approval of it. The date of the SIA is 11 February 2007. If we assume that all conditions precedent will be satisfied, apparently the last to be satisfied will be the Court's approving the Scheme under s 411(4)(b) of the Act , which, ex hypothesi , would be likely to take place at the second court hearing, presently fixed for 28 May 2007. I do not regard the period of some three and a half months as unreasonably long. 32 (b) I do not find cl 11.6 comforting. It operates only if and when the matter comes before a court, arbitral tribunal or the Takeovers Panel something that may never happen. 33 Clause 11.5(b) provides: Nothing in clauses 11.3 or 11.4 prevents APN from undertaking, or requires APN to undertake, any act, if doing so would be inconsistent with the proper exercise of the fiduciary duties of the APN Independent Committee . (My emphasis.) This provision may suggest that cl 11.3 and cl 11.4 may properly require APN to act in a manner inconsistent with the proper exercise of the fiduciary duties of its other seven directors. No doubt the provision was framed as it is to recognise the fact that those other directors may be seen to owe duties to INMAL, an indirect wholly owned subsidiary of INM, a member of the Consortium. However, those directors also have fiduciary duties as directors of APN. 34 I do not think, however, that what I regard as a deficiency in the form of expression of cl 11.5(b) should stand in the way of the convening of the Scheme Meeting or of the approval of the Scheme. 35 (c) Is adequate prominence given the no-shop provision in the Scheme Booklet? I think so. First, a copy of the SIA is Annexure A to the Scheme Booklet. In addition, within the text of the Scheme Booklet, at section 10.3 ("Key Terms of the Scheme Implementation Agreement"), the no-shop provision is referred to under the heading "No-Shop and No Due Diligence" and "Right to Respond to Competing Transactions".


case_text: The Takeovers Panel has had occasion to consider break fees in the context of takeovers under Ch 6 of the Act : see the discussion in Renard IA and Santamaria JG , Takeovers and Reconstruction in Australia (Butterworths, looseleaf service) at [1149], esp at 11,173 ff. Break fees were considered by the Panel in Re Normandy Mining Ltd (No 3) (2002) 20 ACLC 471; Re Ballarat Goldfields NL (2002) 41 ACSR 691; and Re National Can Industries Ltd (No 1) (2003) 48 ACSR 409 (" National Can "). In National Can , the review panel stated (at 434 [33]): We consider that a 1% fee is usually not materially anti-competitive and does not place unreasonable pressure on shareholders. This is the basis for the choice of the 1% guideline in GN7. Further, we query whether a sunk cost is anti-competitive if shareholders reject the scheme and agree with the initial panel's statement [made earlier at 418 [42]]: "In these circumstances, we do not entirely reject the notion that a fee should be payable if and when a proposal the directors endorsed was rejected by shareholders. As GN7 puts it, such a fee may be an appropriate price to secure an opportunity broadly in the nature of an option [GN7 at para 7.21]".


case_text: A concern raised in previous scheme of arrangement applications in this Court is that shareholders may be left in a position, once a scheme has become effective, where their shares have been transferred but where there is a delay in the provision of the Scheme Consideration and where their only remedy is to sue on the deed poll (see Re KAZ Group Ltd [2004] FCA 738 at [4] - [5] ; Re Tempo Services Ltd (2005) 53 ACSR 523 at [5]-[6]; Re SFE Corporation Ltd [2006] FCA 670 at [4] ; and Re Brambles Industries Ltd (2006) 59 ACSR 501 at [9]). Such "performance risk" has been addressed here by requiring that the Scheme Consideration be paid to APN before 8.00 am on the implementation date to be held by it in trust for the purpose of being paid, free of deductions, to the Scheme participants before they are divested of their shares in APN later on the implementation date. This is provided for in the Deed Poll. Disadvantages and Risks


case_title: Re KAZ Group Ltd [2004] FCA 738


case_title: Re Mincom Ltd (2007) 25 ACLC 163

case_text: In Re Mincom Ltd (2007) 25 ACLC 163, Fryberg J described (at [39]) a deemed warranty clause almost identical to the present one as: onerous, unreasonable and calculated to catapult unsuspecting shareholders who have not read the small print of the arrangement in the schedule to the explanatory statement into a state of breach of warranty. As will be clear from what I have said above, I respectfully disagree. At first blush the deemed warranty may appear to attract criticism along these lines, but I think the criticism disappears once it is appreciated that its purpose and effect are as I have described them. Perhaps a better way of framing the provision would have been to avoid the language of warranty, and, instead, to provide simply that if shares continue to be subject to encumbrances after transfer, the shareholder would, upon demand by INMAL, pay the amount required to discharge the encumbrance to the encumbrancee if the encumbrance remains outstanding, or to INMAL if INMAL had already discharged it. 63 On the hearing I indicated that I would require the attention of Scheme participants to be drawn to the existence of the deemed warranty in the Scheme by a specific mention of it in section 2.4 ("Assessment of the Scheme" "Other Relevant Considerations") of the Scheme Booklet. Accordingly, a new cl 2.4(c) will state: Deemed warranty Shareholders' attention is drawn to the warranties that Scheme Participants will be deemed to have given, if the Scheme takes effect, in clause 3.4 of the Scheme (see page 283).


case_title: Re National Can Industries Ltd (No 1) (2003) 48 ACSR 409


case_title: Re Normandy Mining Ltd (No 3) (2002) 20 ACLC 471


case_title: Re SFE Corporation Ltd [2006] FCA 670

case_text: A concern raised in previous scheme of arrangement applications in this Court is that shareholders may be left in a position, once a scheme has become effective, where their shares have been transferred but where there is a delay in the provision of the Scheme Consideration and where their only remedy is to sue on the deed poll (see Re KAZ Group Ltd [2004] FCA 738 at [4] - [5] ; Re Tempo Services Ltd (2005) 53 ACSR 523 at [5]-[6]; Re SFE Corporation Ltd [2006] FCA 670 at [4] ; and Re Brambles Industries Ltd (2006) 59 ACSR 501 at [9]). Such "performance risk" has been addressed here by requiring that the Scheme Consideration be paid to APN before 8.00 am on the implementation date to be held by it in trust for the purpose of being paid, free of deductions, to the Scheme participants before they are divested of their shares in APN later on the implementation date. This is provided for in the Deed Poll. Disadvantages and Risks 43 Provisions for the payment of break fees are not uncommon in agreements for schemes of arrangements and in merger and takeover agreements, both in Australia and overseas. Such provisions have not been an obstacle to the making of orders under s 411(1) of the Act for the convening of meetings. In Re SFE Corporation Ltd [2006] FCA 670 at [6] - [7] , Gyles J said that he would be dissuaded from making an order by a break fee only if the amount was of such magnitude that it could influence voting or if there were some other unusual circumstances. 44 Break fees are justified by reference to: • the costs incurred by the offeror company; • the benefit that that company confers on the members of the target company by increasing its value; and • the desirability, from the viewpoint of those members, that takeover offers be made to them. 45 Clearly, a company making an approach to the board of a target company is entitled to stipulate as a term of its offer that the target company agree to a provision for a break fee. It is entitled to inform that board that if it does not agree to the break fee, the offer will not be made to the target company's shareholders, and it is entitled not to make the offer to the target's shareholders, if its board does not agree to the break fee. The question is what is the appropriate response of the target company's directors, and later of the Court.


case_text: Senior counsel for the plaintiff raised the question whether I should take into account at the first hearing stage the position of creditors of APN. In the absence of unusual circumstances (none are obvious here), I do not think I should. Senior counsel acknowledged that it would remain open to the Court to consider the position of creditors as relevant to the Court's discretion to approve the Scheme at the second court hearing, as happened in Re Stork ICM Australia Pty Ltd (2006) 25 ACLC 208. 65 The Australian Securities and Investments Commission has provided the "usual letter" that it provides in relation to schemes of arrangement of the present kind, to the effect that it has had the opportunity to review the Scheme Booklet and does not propose to appear at the first court hearing. As is its practice in such cases, ASIC does not issue a "no objection" statement under s 411(17) of the Act until the second court hearing. 66 Helpfully, APN's legal advisers have provided a "checklist" that identifies the requirements of the Act and the Corporations Regulations 2001 (Cth) ("the Regulations ") with respect to information required to be included in the explanatory statement. The checklist refers to those parts of the Scheme Booklet that constitute the information required by s 411(3) and s 412(1)(a) of the Act , and by the Regulations , Sch 8, Pt 3 ("Prescribed information relating to proposed compromise or arrangement with members or a class of members").


case_title: Re Tempo Services Ltd (2005) 53 ACSR 523


case_text: Clause 3.4 is not a "no encumbrances" provision of the kind considered in Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742 at [14]-[22] because it cannot give the impression to encumbrancees that their security over the shares is being adversely affected by the transfer. Indeed, it assumes that the shares may be transferred subject to encumbrances, to the detriment of INMAL. 59 In substance, the purpose of the deemed warranty is to prevent a shareholder whose shares are subject to encumbrances from receiving the same Scheme Consideration as that to be received by those whose shares are free from encumbrances, without any obligation, in effect, to refund to INMAL the amount required to discharge the encumbrance. It is not practicable for amounts secured by encumbrance to be deducted from the Scheme Consideration payable to the relevant Scheme participants on the implementation date. 60 The warranty will be deemed to have been given, not only by those Offeree Shareholders who vote to agree to the Scheme, and who, therefore, can be seen to be consenting to give it, but also those who do not vote at all or who vote against the Scheme. However, I do not think that this matters. What is important, in my view, is that the deemed warranty is no more than a device directed to ensuring that a Scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty is the amount required to discharge the encumbrance.