case_text: AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.


case_outcome: cited

case_title: Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491


case_title: Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197


case_title: Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116


case_title: Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260


case_text: The Commonwealth expressly conceded that this proceeding is neither hypothetical nor abstract, and raises a genuine controversy that constitutes a 'matter' appropriate for judicial determination: Bass at 355-356; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 and 596; and Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643 at 649-650. Nonetheless, the Commonwealth submitted that, because of the presently incomplete definition of the issues that will have to be resolved in this Court, the proceeding is premature. In my opinion, this submission does not assist the Commonwealth's application for separate trials. In any proceeding, the process of joining and defining the issues of fact and law that will fall the decision takes some time, and will ordinarily follow the institution of proceedings. The issues in this case are still being defined and there are several reasons why that process is incomplete: the Commonwealth wished to pursue its notice of motion for separate questions at this hearing, which the Court had originally set aside as a hearing at which it was anticipated that there would be a trial of all issues; AWB has filed most but not all its evidence in support of its privilege claims; and the Commissioner has, thus far, taken the stance that it would be inappropriate for him as a submitting respondent to assist the Commonwealth, or the Court, to determine the merits or otherwise of AWB's claims for privilege.


case_title: Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643


case_outcome: discussed

case_text: The Commonwealth could not refer me to any case in which the Court has made an order under O 29 r 2 for the separate trial of the question whether declaratory relief should be refused as a matter of discretion, prior to any consideration of the merits of the claim for declaratory relief. It did, however, refer me to McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118 ( 'McGowan' ) which concerned the dismissal of a judicial review application. 67 In McGowan , the applicant sought judicial review of a decision by the Migration Agents Registration Authority to suspend her registration as a migration agent until she satisfied certain conditions. The applicant made an application to the Administrative Appeals Tribunal under s 306 of the Migration Act for a merits review of the Authority's decision to suspend her registration some days before she instituted proceedings in the Federal Court seeking judicial review of the Authority's decision. The application was founded principally on the provisions of the Administrative Decisions (Judicial Review) Act 1977 ( 'ADJR Act' ), but also relied in the alternative on s 39B(1A)(c) of the Judiciary Act . The relief sought by the applicant included an order pursuant to s 16(1) of the ADJR Act setting aside or quashing the Authority's decision, and in the alternative, orders by way of prohibition and injunction pursuant to s 39B.


case_text: By notice of motion, the Authority applied for orders dismissing the application on the basis that it disclosed no reasonable cause of action or alternatively on the basis that it should be dismissed pursuant to s 10(2)(b)(ii) of the ADJR Act. The first ground was not pursued. Section 10(2)(b)(ii) provides that the Court may refuse an application for judicial review on the ground that adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek a review of the relevant decision. Order 54 r 7 of the Federal Court Rules requires that a party who seeks to have an application for review dismissed on the ground set out in s 10(2)(b)(ii) or in the exercise of the Court's discretion must apply promptly for such dismissal. This rule is designed to avoid the necessity for a court to consider the whole of the applicant's case where, even if otherwise the applicant would succeed, it is clear that no order would be made in favour of the applicant: Edelsten v Minister of Health (1994) 58 FCR 419 at 422. 71 McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.


case_text: McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.


case_title: Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31


case_title: Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739


case_title: Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829


case_title: Saitta Pty Ltd v Commonwealth [2000] FCA 1596 ; (2000) 106 FCR 1


case_title: Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 85 ALD 346


case_text: Section 44(1) of the Act provides that a creditor's petition shall not be presented against a debtor unless there is owed by the debtor, to the petitioning creditor, a debt or debts that amount to $2,000 or more. Further, s 52(1) of the Act provides that, at the hearing of the creditor's petition, the Court shall require proof of the matters stated in the petition. Those matters include the debtor's indebtedness to the petitioning creditor. The Court can only make a sequestration order if it is satisfied that there is proof of those matters. If any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he is made bankrupt: Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137 at 148.


case_outcome: referred to

case_text: Fifth, the alleged term is uncertain and almost certainly unenforceable. Liability had already been established in favour of the appellant and the other litigants by a judgment of the Supreme Court and only an assessment of damages remained: Camila Pty Ltd v Actus Australia Pty Ltd (1994) 16 ATPR 41-367. What did "success" mean in those circumstances? If such a term had been agreed I would have expected that the parties would have spelt out what was the minimum amount of damages such as to constitute a "success". Mr Kurland does not depose to having discussed or agreed what circumstances would constitute "success" in the context of the litigation. This is to be contrasted with his own success fee agreement to which I have referred. There Mr Kurland was to receive $50,000 plus 20% of all gross amounts (after first deducting the $50,000) paid by the respondent to the appellant and the other litigants as a result of the Supreme Court action. 41 Sixth, Mr Kurland has a history of demonstrated dishonesty. Some six years before the events in question here, on 30 October 1989, acting pursuant to the Legal Practitioner Act 1898 (NSW), the Solicitors' Statutory Committee made an order that no solicitor should, in connection with his practice as a solicitor, take into or retain in his employment or remunerate Mr Kurland except in accordance with permission in writing granted by the Law Society of New South Wales for such a period and subject to such conditions as the Law Society might think fit to specify in the permission. The Committee had considered serious allegations made against Mr Kurland concerning his employment as a Clerk in the employment of two separate firms of solicitors. The allegations concerned Mr Kurland holding himself out as being a legally qualified practising solicitor when he was not, as well as misappropriating cheques, misappropriating trust funds and failing to account for deposit monies under a contract. The Committee found that the allegations had been established. The dishonesty variously described involved significant sums of money. In addition the Committee took into account the fact that Mr Kurland had been convicted at Hornsby Local Court in February 1987 with a criminal offence of obtaining financial advantage by deception. There is no corroboration of Mr Kurland's evidence as to the success fee. Indeed, Mr Kurland's evidence as to the $50,000 success fee allegedly made a few weeks after the 21 September 1995 meeting is contradicted by the fact that no amendment was made to the Retainer Agreement to include this term. 42 Seventh, the defence filed by the appellant and Mr Paligorov in the District Court action denied that the respondent had been engaged to act for the appellant and the other litigants in the Supreme Court proceedings in writing and in particular denied that the respondent had been instructed pursuant to a Law Society costs agreement relating to hourly charges. This denial was contrary to the true position as the appellant must be taken to have known. Before the primary court, for the first time, the appellant said that the costs agreement was partly written and partly oral. It was admitted by the appellant that a Law Society of Western Australia's written Retainer Agreement was entered into on or about 1 October 1995 between himself and the other litigants, as clients, and the respondent as solicitors. The agreement provides for payment based on an hourly rate fee. It does not contain a "no win no fee" term or any term for a success fee of $50,000 or otherwise.


case_text: The appellant submits that the affidavit evidence was sufficient to establish a "bona-fide allegation" that no real debt lies behind the judgment: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357-8. Putting it another way, he submits that substantial reasons had been demonstrated for questioning whether behind the Judgment there was in truth and reality a debt due to the respondent: Wren at p 224-5. He relied upon his own affidavits sworn on 22 and 24 May 2007 and that of Mr Richard Kurland sworn on 5 November 2007. Mr Kurland was engaged by the appellant and the other litigants to assist them in their Supreme Court action. 22 It will often be necessary, in considering whether or not to exercise the discretion to go behind a judgment to conduct some preliminary investigation of the merits of the attack on the judgment: Corney v Brien at 358. The primary judge took that course. His Honour gave consideration to whether the allegation that the parties agreed on 21 September 1995, to an oral term for payment of a $50,000 success fee could succeed and whether it was, in effect, a bona fide allegation.


case_text: It is not necessary for a respondent debtor to prove that they are not, in truth and reality, indebted to the petitioning creditor. All that is required of a respondent debtor was to show that there was "substantial reason for questioning whether there is ... a debt": Joosse v Deputy Commissioner of Taxation [2004] FCAFC 245 ; (2004) 137 FCR 576 at 579 [6] per North and Finkelstein JJ. 15 The primary judge declined to go behind the Judgment for reasons he expressed in the following way. [17] Accepting that this Court can go behind a judgment, and that it can do so more easily where there is as here a default judgment, the matter is ultimately one for the exercise of the Court discretion. Given: a) the history of the litigation and the delays which have occurred (none of which are the fault of the Applicant); and b) that the Respondent has now failed, resoundingly, twice in the District Court and twice in the Court of Appeal in attempts to allow it to effectively further pursue the matter with a view to undoing the order of Sleight DCJ giving rise to the Judgment Debt; this Court does not consider it appropriate to go behind the Judgment Debt. There is a general principle of comity and recognition of other courts' judgments which also underlies this Court's view. [18] In any event, the Court does not consider the allegations of champerty and maintenance, or other illegality in the Terms, can succeed or are genuinely arguable. The Applicant was entitled to be paid for its services as a professional service firm, and the Respondent agreed to do so on the terms of a standard Law Society of Western Australia costs agreement. The express terms of that agreement preclude the implication of a term as to a success fee. Further, the evidence of the success fee agreement relied upon by the Respondent is, in any event, entirely hearsay and not admissible.


case_text: The Judgment was entered following the dismissal of an appeal by the appellant and Mr Paligorov against a springing order that had been made by a Deputy Registrar on 5 May 2005 following a series of defaults by the appellant and Mr Paligorov in providing proper discovery. As the springing order had not been complied with, judgment was entered for the respondent: Leonard Cohen & Co v Richardson [2005] WADC 172. The reasons of Sleight DCJ recounted that: ...the history of this matter demonstrates that the defendants have deliberately attempted to frustrate the plaintiff's attempts to obtain proper discovery, and in doing so they have sought to avoid putting the plaintiffs in the position which they will be able to prepare adequately for trial.


case_title: Payne v Parker [1976] 1 NSWLR 191

case_text: The appellant submits that Mr Kurland's testimony is uncontradicted in that Mr Levitan did not provide an affidavit concerning this alleged telephone conversation. It is by no means clear that Mr Levitan is a witness who would ordinarily have been expected to be called by the respondent. Mr Levitan acted as the appellant's solicitor in the Supreme Court litigation after the respondent's retainer ended. He was, at least, equally available as a witness for both parties in this matter and possibly more available to the appellant given the past relationship of confidence between them as solicitor and client: Payne v Parker [1976] 1 NSWLR 191 at 201-202. More importantly the evidence of a $50,000 success fee term agreed to orally a few weeks after 21 September 1995 does not support the appellant's pleaded defence in the District Court action: a defence from which he did not resile in the court below. 49 Finally, I consider that the primary judge was correct to take into account the history of the District Court action and the appeals by the appellant to the Court of Appeal of Western Australia, particularly the criticisms made by Sleight DCJ and Wheeler JA respectively. They are testimony to the improper conduct of the appellant in the litigation but for which the merits of the respondent's claim and more significantly the appellant's defence would long ago have been heard and determined. This conduct, in my opinion, is a relevant factor in the Court's overall consideration of the merits of the defence and whether the evidence of the appellant and Mr Kurland raise genuine issues and a reason therefore to go behind the Judgment. These considerations weigh in the balance against the appellant. 50 For these reasons I would reject each of the three grounds of appeal. I am not satisfied that the appellant has demonstrated that the discretion of the primary judge miscarried. The appeal should be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 12 September 2008 Counsel for the Appellant: Mr C S Williams Solicitor for the Appellant: Solomon Brothers Counsel for the Respondent: Mr B W Ashdown Solicitor for the Respondent: Stewart Forbes, Barrister and Solicitor Date of Hearing: 28 August 2008 Date of Judgment: 12 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1392.html


case_text: An appeal from the Judgment was dismissed by the Court of Appeal of Western Australia following further procedural defaults by the appellant and Mr Paligorov: Richardson v Leonard Cohen & Co (a firm) [2006] WASCA 64. Wheeler JA at [2] in reasons for judgment noted that the appellants had "... demonstrated a continuing disregard of their obligations ... over a considerable period of time". An application by the appellant to extend time for a review of that decision was dismissed: Richardson v Leonard Cohen & Co (a firm) [No 2] [2008] WASCA 101.


case_text: In September 2006 the appellant applied to the District Court for orders extending the time to comply with the springing order and setting aside the Judgment. That application was dismissed by a Deputy Registrar on 3 October 2006. An appeal from that decision was dismissed by the District Court on 12 January 2007: Richardson v Leonard Cohen & Co [2007] WADC 128. An appeal from that decision was dismissed by the Court of Appeal on 20 September 2007: Richardson v Leonard Cohen & Co (a firm) [No 2] [2007] WASCA 205.


case_text: An appeal from the Judgment was dismissed by the Court of Appeal of Western Australia following further procedural defaults by the appellant and Mr Paligorov: Richardson v Leonard Cohen & Co (a firm) [2006] WASCA 64. Wheeler JA at [2] in reasons for judgment noted that the appellants had "... demonstrated a continuing disregard of their obligations ... over a considerable period of time". An application by the appellant to extend time for a review of that decision was dismissed: Richardson v Leonard Cohen & Co (a firm) [No 2] [2008] WASCA 101. 8 In September 2006 the appellant applied to the District Court for orders extending the time to comply with the springing order and setting aside the Judgment. That application was dismissed by a Deputy Registrar on 3 October 2006. An appeal from that decision was dismissed by the District Court on 12 January 2007: Richardson v Leonard Cohen & Co [2007] WADC 128. An appeal from that decision was dismissed by the Court of Appeal on 20 September 2007: Richardson v Leonard Cohen & Co (a firm) [No 2] [2007] WASCA 205.


case_text: In September 2006 the appellant also applied unsuccessfully for time to comply with the Bankruptcy Notice to be extended. An application for review to the Federal Magistrates Court was dismissed in February 2007: Richardson v Leonard Cohen & Co [2007] FMCA 78. 10 Despite these numerous proceedings across a period of years the merits of the respondent's action have never been tried.


case_title: Richardson v Leonard Cohen & Co (a firm) [2008] WASCA 101


case_text: Tenth, even if I were to assume for present purposes that the Retainer Agreement was partly oral and partly written, and included a "no win-no fee" oral term, it is highly probable that it would avail the appellant nothing. First it seems to me that the term would fail because it is uncertain: Scammell & Nephew Ltd v Ouston [1941] AC 251 at 268 (approved Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 437 per Barwick CJ). Second the respondent was unable to finalise the Supreme Court litigation as its retainer was terminated by the appellant and the other litigants in April 1999 before the litigation was resolved. At this time the appellant retained Mr Levitan who had by then left the employ of the respondent and established his own law firm. In those circumstances the appellant could not rely upon a "no win-no fee" term for refusing to pay the respondent's costs on a quantum merit basis. It cannot be doubted that these would have exceeded $2,000.


case_title: Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429


case_text: The Court, considering the petition, may, in its discretion, accept a judgment as satisfactory proof, or not, of the petitioning creditor's debt. Such a judgment is prima facie evidence of the antecedent debt. The discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner: Wren v Mahony [1972] HCA 5 ; (1971) 126 CLR 212 at 224-5 per Barwick CJ with whom Windeyer and Owen JJ agreed. 18 The appellant submits that the affidavit evidence was sufficient to establish a "bona-fide allegation" that no real debt lies behind the judgment: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357-8. Putting it another way, he submits that substantial reasons had been demonstrated for questioning whether behind the Judgment there was in truth and reality a debt due to the respondent: Wren at p 224-5. He relied upon his own affidavits sworn on 22 and 24 May 2007 and that of Mr Richard Kurland sworn on 5 November 2007. Mr Kurland was engaged by the appellant and the other litigants to assist them in their Supreme Court action.


case_title: Wolff v Donovan (1991) 29 FCR 480

case_text: The Court will not go behind a judgment as a matter of course, but where a judgment is obtained by default the Court in bankruptcy will more readily look behind the judgment than it would if the judgment were obtained following a hearing on the merits: Wolff v Donovan (1991) 29 FCR 480 at 486 per Lee and Hill JJ. At 487 their Honours said: "[T]he true position is that there is a shifting onus. Once the judgment is proved, and it is prima facie evidence of the existence of the underlying debt, there is a tactical onus on the debtor to show that there are circumstances which make it appropriate to go behind the debt to see whether the judgment was in truth and reality a true debt. The overall onus of proof of the existence of a real debt underlying a judgment, however, remains always with the petitioning creditor." 23 There is no suggestion in the reasons of the primary judge, in the papers before me or the submissions of the parties, that the court below was asked to enter upon a two-staged process involving, first, the adjudication of a preliminary issue, whether reason was shown for questioning whether behind the Judgment there was really a debt, before proceeding at a later hearing to determine the issue of whether there was in truth a real debt: Wolff at p 486. 24 Rather, the court below was invited to consider such evidence as was before it and to exercise its discretion one way or the other. If it exercised its discretion in favour of going behind the Judgment, it would then, on the same body of evidence, adjudicate the question whether a debt was truly owed. If it exercised the discretion against going behind the Judgment then a sequestration order would immediately follow. 25 The affidavit evidence concerns what allegedly occurred at a meeting on 21 September 1995 at the respondent's offices and in a later alleged telephone conversation a few weeks after 21 September 1995. The defence in the District Court action did not plead or particularise that any term of the "Terms of Engagement" was made on any date other than 21 September 1995. The background to the meeting according to Mr Kurland was that he had come to Perth with the appellant in September 1995 to attempt to identify a law firm which would act for the appellant and the other litigants in the Supreme Court action on a "no win-no fee" basis. The respondent was identified by him as such a firm and he arranged a meeting for 21 September 1995 to discuss the matter of fees.


case_title: Duke of Bedford v Ellis [1901] AC 1

case_text: 6 r 13(1) provides as follows: Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. Therefore, before O 6 r 13(1) can be invoked, there must be "numerous persons" having "the same interest in [the] proceeding". This requirement must be satisfied at the time the proceeding is commenced. The interest in question is an interest in the proceeding, to be judged by reference to the effect of the matters at issue on the rights and obligations of the representing respondent and the represented persons. A representative proceeding will not necessarily be defeated because some members, or even the representing party, have separate interests additional to a common interest, providing there is a common interest: compare Duke of Bedford v Ellis [1901] AC 1 at 7 per Lord Macnaghten. Thus, on the respondents' motion, the basic question is whether, at the time the proceeding commenced, it could be said that numerous persons had the same interest in the proceeding as between themselves and Swimart Balwyn. For the reasons stated below, I would answer this question in the negative. In order to understand my reasons for ruling against Stacey Brothers, it is necessary to refer to the case law on the operation of O 6 r 13 and provisions like it. Whether there are sufficient persons to constitute "numerous" persons has been said to depend on whether "the parties were so numerous that you could never 'come at justice' ... if everybody interested was made a party": see Duke of Bedford v Ellis [1901] AC at 8 per Lord Macnaghten. Today, the question may be put a little differently whether the representative proceeding can be regarded as an efficient and just way to proceed, having regard to the likely costs, the issues involved and the capacity of the Court to manage the proceeding suitably. In view of my conclusion as to lack of commonality of interest, it is unnecessary to explore this question further. It is also unnecessary to consider the effect on this issue of Mr Sloan's third affidavit, as to which see below.


case_text: High Court considered Pt 8 , r 13 of the Supreme Court Rules (NSW), which at the time was relevantly the same as O 6 r 13 of the Federal Court Rules , in Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398 and Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386: contrast Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 , an applicant representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth). As noted in Carnie , "the ancestor" to these Rules "is to be found in the English Rules of the Supreme Court", which was "in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery": see Carnie 182 CLR at 415 per Toohey and Gaudron JJ and 427-429 per McHugh J. Some care needs to be taken, however, with regard to Carnie and Campbells Cash since both concerned plaintiff representative actions, not defendant representative actions. Thus, in Carnie 182 CLR at 404, Mason CJ, Deane and Dawson JJ said that the purpose of the representative procedure was "to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions". In Campbells Cash 229 CLR at 422 [55], Gummow, Hayne and Crennan JJ made much the same point, saying: A central objective of the representative procedures for which Pt 8, r 13 provided was the avoidance of multiplicity of proceedings and the efficient determination, once and for all, of controversies in which parties have the same interest. An important indication of the nature of the interest that numerous persons must have in proceedings instituted under Pt 8, r 13 was given by Pt 8, r 13(4). A judgment entered or order made in the proceedings 'shall be binding on all the persons as representing whom the plaintiffs sue'. What the rules were intended to achieve was a single determination of common issues in a way that binds those who were interested in those issues. As Carnie and Campbells Cash show, though simply expressed, the requirement of "same interest" has presented difficulties. In Carnie the High Court held that persons having separate causes of action in contract and tort might have the same interest in a proceeding for the purposes of the representative proceeding rules as they then stood in the NSW Supreme Court. The fact that the represented persons' claims arose under separate contracts was held insufficient to defeat the requirement that there be numerous persons having the same interest. In Carnie 182 CLR at 405, Mason CJ, Deane and Dawson JJ held that, in the circumstances of that case, numerous persons had "the requisite commonality of interest" to satisfy the jurisdictional requirement of the rule. Toohey and Gaudron JJ reached a similar conclusion, holding that the onus was on the named plaintiffs "to identify the class with sufficient particularity", without necessarily identifying every member, and that they had done so, noting that "[t]he class is not open-ended; it is limited to those persons who have credit sale or loan contracts with the respondent which have been varied in circumstances where the variation has been executed in such a way as to be inconsistent with the [Credit] Act": see Carnie 182 CLR at 422. In discussing Carnie in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 ; (2007) 70 NSWLR 565 at 582 [74] , Mason P, with whom Ipp JA and McColl JA agreed, usefully summarised the various approaches in Carnie thus: McHugh J suggested (at 427) that a plaintiff and the represented persons would have 'the same interest' in legal proceedings when they have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings. Brennan J (at 408) agreed with this test. Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the (declaratory) relief sought by the appellants in the instant proceedings. Mason CJ, Deane and Dawson JJ thought (at 404) that the 'same interest' requirement 'may ... [extend] to a significant common interest in the resolution of any question of law or fact arising in the proceedings'. Carnie also showed that, even if the jurisdictional requirements of O 6 r 13(1) are satisfied, the Court may nonetheless consider, as a matter of discretion, that the proceeding ought not continue as a representative proceeding. Various factors might be relevant to this determination, including whether alterations to the group description can be allowed, notice requirements for group members, and the practicalities of settlement or discontinuance of the proceeding. As Mason CJ, Deane and Dawson JJ said in Carnie at 405, determining the importance of such matters in the context of the particular case is not necessarily straightforward, especially in the context of a defendant representative proceeding. Again, having regard to the conclusion I have reached on the lack of commonality of interest, it is strictly unnecessary to explore these discretionary considerations further. Since, however, Stacey Brothers specifically sought to amend the definition of the group, in order, so it said, better to "capture" the group, I discuss briefly whether the amendment might be made.


case_text: High Court considered Pt 8 , r 13 of the Supreme Court Rules (NSW), which at the time was relevantly the same as O 6 r 13 of the Federal Court Rules , in Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398 and Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386: contrast Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 , an applicant representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth). As noted in Carnie , "the ancestor" to these Rules "is to be found in the English Rules of the Supreme Court", which was "in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery": see Carnie 182 CLR at 415 per Toohey and Gaudron JJ and 427-429 per McHugh J. Some care needs to be taken, however, with regard to Carnie and Campbells Cash since both concerned plaintiff representative actions, not defendant representative actions. Thus, in Carnie 182 CLR at 404, Mason CJ, Deane and Dawson JJ said that the purpose of the representative procedure was "to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions". In Campbells Cash 229 CLR at 422 [55], Gummow, Hayne and Crennan JJ made much the same point, saying: A central objective of the representative procedures for which Pt 8, r 13 provided was the avoidance of multiplicity of proceedings and the efficient determination, once and for all, of controversies in which parties have the same interest. An important indication of the nature of the interest that numerous persons must have in proceedings instituted under Pt 8, r 13 was given by Pt 8, r 13(4). A judgment entered or order made in the proceedings 'shall be binding on all the persons as representing whom the plaintiffs sue'. What the rules were intended to achieve was a single determination of common issues in a way that binds those who were interested in those issues. As Carnie and Campbells Cash show, though simply expressed, the requirement of "same interest" has presented difficulties. In Carnie the High Court held that persons having separate causes of action in contract and tort might have the same interest in a proceeding for the purposes of the representative proceeding rules as they then stood in the NSW Supreme Court. The fact that the represented persons' claims arose under separate contracts was held insufficient to defeat the requirement that there be numerous persons having the same interest. In Carnie 182 CLR at 405, Mason CJ, Deane and Dawson JJ held that, in the circumstances of that case, numerous persons had "the requisite commonality of interest" to satisfy the jurisdictional requirement of the rule. Toohey and Gaudron JJ reached a similar conclusion, holding that the onus was on the named plaintiffs "to identify the class with sufficient particularity", without necessarily identifying every member, and that they had done so, noting that "[t]he class is not open-ended; it is limited to those persons who have credit sale or loan contracts with the respondent which have been varied in circumstances where the variation has been executed in such a way as to be inconsistent with the [Credit] Act": see Carnie 182 CLR at 422. In Campbells Cash , a proceeding was instituted in the name of one plaintiff and a group of represented retailers who chose, by opting-in, to be bound: see Campbells Cash at 421 [52]. Gummow, Hayne and Crennan JJ accepted, at 421 [54], that "the rule did not require the separate identification of, and consent from, those who were said to constitute the 'numerous persons'". In Campbells Cash , their Honours held, however, that, at the commencement of the proceeding, there was no person, other than the named plaintiff, who had an interest in the proceeding, because no order or judgment given in the proceeding would have bound any other person: see Campbells Cash at 422 [57]-[58]; and see also 472-473 [222]-[226] per Callinan and Heydon JJ. Accordingly, the jurisdictional requirement was not met.


case_text: High Court considered Pt 8 , r 13 of the Supreme Court Rules (NSW), which at the time was relevantly the same as O 6 r 13 of the Federal Court Rules , in Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398 and Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386: contrast Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 , an applicant representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth). As noted in Carnie , "the ancestor" to these Rules "is to be found in the English Rules of the Supreme Court", which was "in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery": see Carnie 182 CLR at 415 per Toohey and Gaudron JJ and 427-429 per McHugh J.


case_text: discussing Carnie in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 ; (2007) 70 NSWLR 565 at 582 [74] , Mason P, with whom Ipp JA and McColl JA agreed, usefully summarised the various approaches in Carnie thus: McHugh J suggested (at 427) that a plaintiff and the represented persons would have 'the same interest' in legal proceedings when they have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings. Brennan J (at 408) agreed with this test. Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the (declaratory) relief sought by the appellants in the instant proceedings. Mason CJ, Deane and Dawson JJ thought (at 404) that the 'same interest' requirement 'may ... [extend] to a significant common interest in the resolution of any question of law or fact arising in the proceedings'. In the context of a defendant (or respondent) representative proceeding, the nature of defences may be especially significant. The authorities support the proposition that a proceeding will generally not disclose persons in the same interest where defendants are entitled to raise different defences, although this is not an absolute rule. I agree with Mason P who said, in Trustees of the Roman Catholic Church v Ellis 70 NSWLR at 582 [74], that "[t]he requirement that each member of the class have identical defences may not be an absolute proposition". Whether the fact that different defences may be taken will defeat a finding of commonality of interest depends on the nature of the case, the centrality of any common questions of law and fact, and, having regard to the proceeding as a whole, the reality, importance and likely scope of the different defences.


case_text: foreshadowed, I accept that there are significant differences between plaintiff (or applicant) representative actions and defendant (or respondent) representative actions: see also BT (Australasia) Pty Ltd v New South Wales [1997] FCA 1553 per Sackville J. As Sackville J noted, members of a represented group may have much to gain when represented by a plaintiff and everything to lose when represented by a defendant.


case_text: development of the law relating to defendant representative proceedings reflects the fact that they have typically been used in the past against members of unions and unincorporated associations: see, e.g., Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 ; [1901] AC 426 at 438-439 per Lord Macnaghten, 443 per Lord Lindley; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 30 per Lord Atkinson, 39 per Lord Parker; and John v Rees [1970] 1 Ch 345 at 371 per Megarry J.


case_title: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15


case_title: John v Rees [1970] 1 Ch 345


case_title: Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525

case_text: Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 is illustrative of this history. The plaintiffs, who were members of the New South Wales Road Transport Association, sued 19 members of the Committee of Management of the Shipping Section of the Federated Clerks Union of Australia (NSW Branch) as representing the Section, or at least those members of the Section that attended a meeting at which certain resolutions were passed. The plaintiffs relied on the representative procedure of the NSW Supreme Court, which, as we have seen, was then equivalent to O 6 r 13. In giving reasons for judgment in the case, Hunt J identified three requirements for a defendant representative procedure: first, that the persons to be represented formed an identifiable group or class; secondly, that the person selected as a representative must be in management of the group or class and have control of its funds; and thirdly, that those selected to be represented must have a common interest or a community of interest with all other members: see Amos Removals [1981] 2 NSWLR 525 at 529-530. Hunt J held that this last element was satisfied in Amos Removals because "the liability as alleged against the members ... was ... enlarged to become one of conspiracy, based upon what is said to be the history of concerted action by those members and the resolution" at the meeting: Amos Removals [1981] 2 NSWLR 535 at 520. The respondents in this case made much of the "management" issue. Subsequent cases indicate, however, that "management" is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate. In truth, in Amos Removals , Hunt J's first two "requirements" are to be understood as factors that were strongly indicative of a commonality of interest. In other circumstances, respondent representative orders have been made where there has been no management and control, although there has been some other factor linking the group. For example, a respondent representative order was made in an action involving breach of trademark to support an ex parte interlocutory injunction against the members of the represented group where the evidence indicated that there was in fact a group of persons acting in a co-ordinated way: see Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414. See also EMI Records Ltd v Kudhail [1985] FSR 36. In these cases, there were factors other than mere management and control that supported the representative order, such as knowledge within the group of the group's members, co-ordinated action, and common purpose.


case_text: against unincorporated associations and unions, a representative proceeding is not properly brought where the essential inquiries concern the individual circumstances of the members. For example, in Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia [2003] FCA 773 ; (2003) 130 FCR 447 at 452 [12] , Finkelstein J held that the representative procedure of this Court was unavailable and that the union could not represent its members participating in a picket. First, the evidence did not establish that the members of the group were acting with a common purpose and, secondly, the proceeding was one to recover penalties. As his Honour said, the applicant had to establish that each respondent had contravened the legislation, which involved an inquiry into each respondent's conduct and purpose and, if the contravention were established, separate consideration of the amount of the penalty. There was, therefore, "no community of interest" amongst the members of the group.


case_text: respondents in this case made much of the "management" issue. Subsequent cases indicate, however, that "management" is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate. In truth, in Amos Removals , Hunt J's first two "requirements" are to be understood as factors that were strongly indicative of a commonality of interest. In other circumstances, respondent representative orders have been made where there has been no management and control, although there has been some other factor linking the group. For example, a respondent representative order was made in an action involving breach of trademark to support an ex parte interlocutory injunction against the members of the represented group where the evidence indicated that there was in fact a group of persons acting in a co-ordinated way: see Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414. See also EMI Records Ltd v Kudhail [1985] FSR 36. In these cases, there were factors other than mere management and control that supported the representative order, such as knowledge within the group of the group's members, co-ordinated action, and common purpose.


case_title: EMI Records Ltd v Kudhail [1985] FSR 36


case_text: example, the general rule (that separate defences defeat the same interest criterion) did not prevent insurers being sued via representative orders in Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206 , where a shipowners' contractual claim, which all insurers had an interest in resisting, disclosed a community of interest amongst the insurers, even though there was a possibility that some foreign insurers might have a defence not available to all insurers: see [1991] 2 QB at 227 per Staughton LJ, 231-232 per Sir John Megaw, and 240 per Purchas LJ. An argument that the representative order might work injustice because a represented insurer might wish to contend lack of authority, fraud or misrepresentation was put aside on the basis that there was "no suggestion" that any such contention would be made, and appropriate steps could be taken if there were: see [1991] 2 QB at 232.


case_text: other circumstances, however, the availability of different defences has precluded a finding of community of interest. Thus, in Mercantile Marine Service Association v Toms [1916] 2 KB 243 , the members of an unincorporated association were to be represented on the defendant's side in a libel action against them. Swinfen Eady LJ noted, at 246, that the various members of the association might be "in a wholly different position", saying: If the members of the management committee were sued, and if in fact they had authorized the publication of the libel they could raise such defences as might be open to them. It might be that their defence would be that the words complained of were not capable of the meaning alleged or of any defamatory meaning, or that the words did not refer to the plaintiffs. The other members of the association, if sued, might say that, however defamatory the words complained of might be, they did not authorize their publication; that they were on the high seas and knew nothing about the matter.


case_title: Roche v Sherrington [1982] 2 All ER 426

case_text: in Roche v Sherrington [1982] 2 All ER 426 , a proceeding to set aside gifts on the grounds of undue influence against defendants representing the present members of Opus Dei, an organisation within the Roman Catholic Church, failed for lack of common interest amongst the represented defendants. Slade J held that the representative proceeding rule was not available against the defendants because members of the group were likely to have separate defences. His Honour said that "where separate defences may be opened to some members of the class in question, there can be no common interest within the rule": see [1982] 2 All ER at 434.


case_text: if membership of a defendant group is liable to fluctuate, then this may indicate a want of sufficient particularity and a lack of commonality: see Hardie & Lane Ltd v Chiltern [1928] 1 KB 663 and Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655. In Taubenfeld at 659, Mackenzie J pointed to "the difficulty in establishing the necessary identity of interest of all persons against whom the [representative] order was sought and of eliminating the possibility of different defences" on account of the fluctuating nature of membership of the group.


case_title: Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655


case_outcome: followed

case_text: granted, the amendment that Stacey Brothers seeks by its motion would expand the group of represented persons in the sense that the group would henceforth include persons who were not Waterco franchisees. In SZ v Minister for Immigration and Multicultural Affairs [2000] FCA 458 ; (2000) 172 ALR 172 , at 179, Lehane J held that O 6 r 13 did not allow an amendment that would expand the group of person on whose behalf an applicant had commenced a proceeding. The case might be distinguished on the basis that it concerned an applicant representative proceeding, as opposed to a respondent representative proceeding. I do not, however, consider that this approach would withstand scrutiny, because his Honour's reasoning is applicable in both kinds of representative proceedings. Further, there is no reason to doubt his Honour's reasoning. In this proceeding, if there were to be an amendment to expand the persons sought to be bound, the amendment would need to take place under O 6 r 2, governing the joinder of parties. This is not an amendment of a kind that might be made under O 13 r 2. Having regard to the terms of O 6 r 2, Stacey Brothers would be obliged to seek leave to amend pursuant to O 6 r 2(b). There is power under O 6 r 2(b) to join additional parties after the commencement of the proceeding. It is, however, a discretionary power. Stacey Brothers did not apply for leave under O 6 r 2 in respect of any particular respondent. Nor did it advance submissions in support of any discretionary exercise of the power in its favour in respect of any respondent. It is therefore inappropriate to say anything more about the possible application of O 6 r 2. It should be borne in mind that any amendment under O 6 r 2 would require amendment of the terms in which the substantive relief claimed in the proceeding is framed. This and other matters would fall for consideration in an application under O 6 r 2(b) to join additional parties.


case_text: Brothers relied on passages in Bright v Femcare Ltd [2002] FCAFC 243 ; (2002) 195 ALR 574 at 580 [18] and 589 [79] per Lindgren J, in support of its argument that the respondents' challenge to the representative character of the proceeding was premature. I observe that this was a case under Pt IVA of the Federal Court of Australia Act , and that his Honours' comments were clearly directed to this legislation. Different considerations apply in a case such as this, where it is apparent even at this early stage that the putative group is not held together by the same interest, so as to satisfy O 6 r 13(1) of the Rules. For the reasons stated, I would dismiss Stacey Brothers' motion, with costs. I would order that the application and the statement of claim be struck out in so far as each refers to "the Represented persons", and in particular the following paragraphs be struck out: (a) in the application paragraph 9 (in its entirety) and paragraphs 1 to 5 and 7 (in so far as these paragraphs refer to "the Represented persons"); and (b) in the statement of claim paragraphs 4, 5, 30 and Schedule 1 (in their entirety) and paragraphs 10, 12, 13, 14, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28 and 29 (in so far as these paragraphs refer to "the Represented persons"). Stacey Brothers will have seven days to file and serve an amended statement of claim in conformity with this order. Since the respondents have succeeded on their motion, they should also have their costs. At the commencement of these reasons, I noted that, after the hearing, the respondents sought leave to file a third affidavit by Mr Sloan. This affidavit concerned various matters, chiefly the printing and distribution of the Posters, and the information obtained as a result of inquiries made of Swimart franchisees. In a letter dated 13 March 2009, the respondents' solicitor wrote: The Respondents' position is that the content of the affidavit does not ... impact on the majority of the arguments raised by the Respondents and, subject to the stance taken by the Applicant, the Respondents propose that the Court decide on the Notices of Motion and arguments already advanced. If the Applicant wishes to be heard on matters arising from the affidavit then we propose that they be given the opportunity to file supplementary written submissions limited to those issues.


case_title: Association of Land Financiers, In re (1878) 10 Ch D 269

case_text: The qualification to which I referred is this. In most applications for the removal of a liquidator it is necessary to find out the wishes of the persons really interested, in this case the creditors : In re Association of Land Financiers (1878) 10 Ch D 269. I propose here not to require that a meeting of creditors be convened for that purpose (a step that is sometimes taken before a liquidator is removed) but to request the plaintiffs to provide a copy of these reasons to the Australian Taxation Office (the Commissioner being by far the largest creditor) for the purpose of ascertaining whether it has any objection to Mr Cant remaining on as liquidator of Stafford Services. I will direct the plaintiffs to report to my associate within fourteen days the response (if any) received from the ATO. In the meantime, the orders that I will make should not be perfected. It may be necessary to recall them if the ATO takes any objection. 19 There will be orders as follows. Upon Mr Cant undertaking to resign as the liquidator of Burns International that Dennis Turner be appointed in his place; and upon Mr Cant undertaking to resign as the liquidator of Greight that Mathew Muldoon be appointed as liquidator in his place. Mr Cant's costs and expenses will be secured. I will also direct that the costs of all parties are to come out of the funds of Greight and Stafford Services. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 25 January 2006 Counsel for the Plaintiffs: R Brett QC M Galvin Solicitor for the Plaintiffs: Mills Oakley Lawyers Counsel for the Defendants: J Evans Solicitor for the Defendants: White Cleland Date of Hearing: 19 January 2006 Date of Judgment: 25 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/17.html


case_title: Bank of Credit and Commerce International S.A. (No 8), In re [1998] AC 214

case_text: The corporate plaintiff's proprietary interest in that part of the trust fund that remains with Greight still subsists provided, of course, that Greight is not able to show that it is a bona fide purchaser for value without notice: Chief Commissioner of Stamp Duties for New South Wales v Buckle [1998] HCA 4 ; (1998) 192 CLR 226. The probability of this defence being made out is so unlikely that it may be put to one side. On this assumption, the corporate plaintiff could obtain an order for the sale of the trust property in the hands of Greight and payment out of the proceeds of an amount sufficient to discharge the indemnity ( Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, 604) or if the trust property is constituted by a fund an order for the payment out of that fund ( Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639, 663). These rights, however, are rights in rem. They impose no personal obligations on the person who holds the trust assets: In re Diplock [1948] 1 Ch 465, 521; In re Bank of Credit and Commerce International S.A. (No 8) [1998] AC 214. This notwithstanding, the person with the right is often called a secured creditor. But there is no debtor.


case_text: In its dealings as trustee of the NP Trust, the corporate plaintiff incurred a debt of around $17 million to the Commissioner of Taxation. As a trustee it is entitled to be indemnified for that expense out of the trust fund of the NP Trust ( Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 367) and has an equitable lien on the fund for such expense ( Jennings v Mather [1901] 1 QB 108). The equitable lien is a proprietary interest in the trust property: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360, 370. If the trust fund were in the hands of the corporate plaintiff, it could apply those funds in payment of the debt: Jennings v Mather [1901] 1 QB 108, 113-114. If necessary the trustee could sell trust property to pay out the debt: In re Blundell (1888) 40 Ch D 370, 377; (1889) 44 Ch D 1.


case_title: Britton & Millard Ltd, In re (1957) 107 L Jo 601

case_text: Before deciding what to do, let me make these preliminary observations. If there are, or are likely to be, disputes between companies in liquidation that are under the control of one liquidator then as a general rule different persons should be appointed as liquidator to each company: In re City and County Investment Co (Ltd) (1877) 25 WR 342; In re Britton & Millard Ltd (1957) 107 L Jo 601. This is not to say that it is inappropriate to appoint one person as liquidator of a group of companies or of companies that are closely connected: In re Western Life Assurance Society; Ex parte Willett (1870) 5 Ch App 396. But once the likelihood of conflict becomes apparent it is necessary to take action.


case_title: City and County Investment Co (Ltd), In re (1877) 25 WR 342


case_text: The first question to consider is whether the plaintiffs (really only the corporate plaintiff) have standing to apply for the removal of Mr Cant. The application is made under s 503 of the Corporations Act 2001 (Cth). That section reads: "The Court may, on cause shown, remove a liquidator and appoint another liquidator." The section does not say (and none of its predecessors have said) who may make the application to remove a liquidator. That is left for the court to determine. As a matter of principle I think that any person with a real interest in the winding up of a company ( In re Rubber and Produce Investment Trust [1915] 1 Ch 382) has standing under the section. By a person with a real interest in the winding up, I mean one whose rights or interests will directly be affected by action taken by a liquidator in the course of performing his (the liquidator's) duties. If the company is solvent the persons with a real interest are the contributories. If it is insolvent they are the creditors. The Privy Council recently considered this question in Deloitte & Touche A.G. v Johnson [1999] UKPC 25 ; [1999] 1 WLR 1605 in relation to the Companies Law of the Cayman Islands which, having regard to its origins, is rather similar to the Australian statute. There joint liquidators caused the company in liquidation to bring proceedings in negligence against the company's former auditors. One of the defendants to the action applied for the removal of the joint liquidators on the ground that they had a conflict of interest. The Privy Council advised that the liquidators ought not be removed. It did so on the basis that the plaintiff did not have standing to make the application. Lord Millett, who delivered the judgment of the Privy Council, said (at 1611) that in the case before the Board "[t]he only persons who could have any legitimate interest of their own in having the liquidators removed from office as liquidators are the persons entitled to participate in the ultimate distribution of the company's assets, that is to say the creditors."


case_title: Diplock, In re [1948] 1 Ch 465


case_text: It is nevertheless possible that the corporate plaintiff has a personal claim against Greight. The trust fund presently in its possession is not sufficient to satisfy the indemnity. Shortly before its winding up, presumably at the instigation of Cardamone, Greight paid significant sums out of the fund. One payment which possibly came out of the fund was a sum of $2.290 million paid to Stafford Services. Why the payment was made is not known. If the corporate plaintiff can establish that part of the trust fund went to Stafford Services and that Stafford Services was not a bona fide purchaser for value, then the corporate plaintiff will be entitled to recover that property from it because its proprietary interest would not have been destroyed. On the other hand, if the right has been destroyed by Greight the corporate plaintiff may have an action against Greight for damages for the destruction of its lien. See Hovey v Elliott , 118 NY 124 (1890); Hale v Omaha National Bank , 49 NY 626 (1872); 1 Jones on Lien s, SS95 (1914) in relation to an action of this kind. Such a cause of action might also be maintained against Stafford Services if it has destroyed the charge in respect of any trust property coming into its possession.


case_title: Hovey v Elliott , 118 NY 124 (1890)


case_title: Jennings v Mather [1901] 1 QB 108


case_title: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360


case_title: Rubber and Produce Investment Trust, In re [1915] 1 Ch 382


case_title: Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584


case_title: Western Life Assurance Society; Ex parte Willett, In re (1870) 5 Ch App 396


case_outcome: considered

case_text: The appellant is a citizen of the People's Republic of China. She applied for a protection visa on 13 September 2006. The application was refused by a delegate of the Minister on 10 October 2006. In a decision signed on 29 October 2007, the Refugee Review Tribunal affirmed the decision of the delegate. This was the second decision of the Tribunal in relation to the appellant's application for a protection visa. An application for review of the second Tribunal decision was dismissed by Smith FM ( SZKIB v Minister for Immigration [2008] FMCA 769). 2 The appellant claimed to fear persecution in China due to her implied anti-government opinion. Her claims related broadly to the fact that her husband had been imprisoned and to her own activities following her husband's imprisonment in connection with a teacher, Ms L. The Tribunal accepted that the appellant's husband had been imprisoned but it did not accept the appellant's claims in relation to her own actions which formed the basis of her claim to fear persecution. The Tribunal was not satisfied that the appellant had distributed petitions prepared by Ms L or organised a protest after Ms L was arrested. Those findings were based upon the Tribunal's assessment of the appellant's credibility. 3 The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention, and it affirmed the decision of the delegate of the Minister not to grant a protection visa to the appellant.


case_text: Devers's submissions relied on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 to suggest that her evidence should be accepted uncritically on several issues. Many of the issues which her counsel referred to were ones on which Focus called evidence from its witnesses. As counsel for Focus observed, the principle in Jones v Dunkel will not assist in the creation of evidence, merely the drawing of inferences where this is supported by Ms Devers's evidence. The evidence before the Court on the relevant issues raised by Ms Devers's application does not lead to the application of Jones v Dunkel , as there is nothing to suggest that Focus failed to called evidence on any matters of material significance from witnesses it would have been expected to call. The Act renders unlawful conduct which constitutes discrimination on the ground of disability in the context of employment. At all material times, s 15 of the Act relevantly provided: (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates: (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. For the discrimination alleged to have been unlawful, it must have occurred "on the ground" of Ms Devers's disability. The discrimination may have been either direct or indirect discrimination as defined in the Act.


case_text: a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. An alleged discriminator may be found to have insisted on compliance with a requirement or condition within the meaning of s 6 of the Act even though the requirement or condition is not explicitly imposed. It is sufficient that the requirement or condition is implicit in the conduct that is said to constitute indirect discrimination; see Waters at 360 per Mason CJ and Gaudron J, 392 per Dawson and Toohey JJ and 407 per McHugh J. For example, the Court in Waters considered that it was open to the trial judge to find that the removal of conductors from trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use trams without the assistance of conductors; at 361 per Mason CJ and Gaudron J.


case_title: Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121

case_text: a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. Several cases have characterised the requirement to participate and receive classroom instruction without Auslan interpreters as a "requirement or condition" within the meaning of s 6 of the Act; see eg, Clarke and Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In Clarke both the trial judge and Full Court found that not providing Auslan interpreters to a student with a hearing disability imposed a condition on him with which he could not comply; at [11] per Tamberlin J, [126] per Sackville and Stone JJ. Similarly, the Court in Hurst held that a student would be "denied the opportunity to achieve her full potential" if she were required to undertake her education without the assistance of Auslan interpreters; at [130] per Ryan, Finn and Weinberg JJ. Focus submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. Ms Devers contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply "cope" by attending some of the required training sessions and staff meetings and access the information through written English. Ms Devers alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for Ms Devers argues that Focus's submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment.


case_text: a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. The next step in determining whether indirect discrimination has occurred within the meaning of s 6 of the Act is to identify "an appropriate base group" with which to compare the individual alleging indirect discrimination in order to assess whether a substantially higher proportion of the individuals in the base group are able to comply with the requirement or condition; see Banovic at 178 9 per Deane and Gaudron JJ, 187 per Dawson J. Ability to comply


case_text: cases have characterised the requirement to participate and receive classroom instruction without Auslan interpreters as a "requirement or condition" within the meaning of s 6 of the Act; see eg, Clarke and Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In Clarke both the trial judge and Full Court found that not providing Auslan interpreters to a student with a hearing disability imposed a condition on him with which he could not comply; at [11] per Tamberlin J, [126] per Sackville and Stone JJ. Similarly, the Court in Hurst held that a student would be "denied the opportunity to achieve her full potential" if she were required to undertake her education without the assistance of Auslan interpreters; at [130] per Ryan, Finn and Weinberg JJ. Focus submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. Ms Devers contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply "cope" by attending some of the required training sessions and staff meetings and access the information through written English. Ms Devers alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for Ms Devers argues that Focus's submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment. The third step in the analysis is to determine whether Ms Devers was able to comply with the requirement or condition. The Full Court in Hurst at [134] stated if: a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition the "not able to comply" element of s 6(c) of the Act will be satisfied. Reasonableness To succeed in her claim, Ms Devers also must show that the imposition of the requirement or condition was not reasonable having regard to all the circumstances of the case. In the absence of evidence to establish that the requirement or condition was unreasonable, the conduct engaged in by Focus will not be discriminatory. As with the other aspects of her claim, the onus is on Ms Devers to prove that the requirement or condition imposed was not reasonable in all the circumstances. ANALYSIS OF INDIRECT DISCRIMINATION CLAIMS Request for a TTY A major issue in contest in the proceeding is whether Ms Devers required Focus to provide her with a TTY before it ultimately provided her with one in July 2008. Ms Devers was able to perform most aspects of her employment without the installation of flashing lights. She was unable to answer the door without the aid of flashing lights. Ms Devers was able to "cope" with the condition as another staff member was required to be in the CRU at all times. Nevertheless, the relevant test is whether Ms Devers was able to comply with the requirement; see Hurst at [134]. The Court in Hurst noted that an inability to comply may shown if "a disabled person will suffer serious disadvantage in complying with the requirement or condition"; at [134]. Ms Devers has not shown that she suffered any serious disadvantage from her inability to answer the door. There is evidence to suggest that in 2004 her inability to hear whether someone was at the door was a source of grievances among other staff members. However, there is no evidence to indicate that this was a live issue in 2006 when the request for flashing lights was made. By this time, Focus had also purchased a pager which provided staff members with a means of attracting Ms Devers's attention. Her work consisted of caring for the clients at the Bungower Road CRU and she has not shown that her inability to answer the door led to any serious disadvantage. It is a requirement with which Ms Devers was able to comply in performing her employment. Similarly, Ms Devers has not demonstrated that the requirement was unreasonable in all the circumstances. Her counsel placed considerable emphasis on Focus's failure to plead reliance on s 15(4) of the Act. However, the onus is on Ms Devers to demonstrate that the requirement or condition was one which was not reasonable in all the circumstances. At the time, Ms Devers was working approximately 15 hours per fortnight. It is also reasonable to infer that answering the door was incidental to the performance of her duties as a Disability Support Worker. In addition, Focus's policy was to not have staff members alone at the Bungower Road CRU at any time. Given Ms Devers's hours, the policy that staff members not work alone at any time and the incidental nature of the task, Focus's imposition of the requirement or condition that Ms Devers carry out her employment without the aid of flashing lights was reasonable. Ms Devers's claim of indirect discrimination as a result of the failure to provide flashing lights prior to their installation in 2007 fails. Training sessions


case_outcome: distinguished

case_text: is a State Party to the Convention on the Rights of Persons with Disabilities , opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008). However, this does not lead to the conclusion that the requirement or condition imposed by Focus was not reasonable. It is well settled that the mere fact of ratification does not import any rights or obligations into domestic law; see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1994) 183 CLR 273 at 286 7 per Mason CJ and Deane J, 315 per McHugh J and see also Nulyarimma v Thompson [1999] FCA 1192 ; (1999) 96 FCR 153 at [20] per Wilcox and Whitlam JJ. A convention may aid in interpretation of an Act where there is ambiguity but the Convention cannot be relied on to reach the conclusion that the requirement or condition was not reasonable; see Teoh at 287 per Mason CJ and Deane J. The relevant terms of the Act are unambiguous and the situation is not one of legitimate expectations created by a decision maker as described in Teoh . The Convention is irrelevant to the present proceeding.


case_title: Nulyarimma v Thompson [1999] FCA 1192 ; (1999) 96 FCR 153


case_outcome: applied

case_text: Purvis v State of New South Wales [2003] HCA 62 ; (2003) 217 CLR 92 , Gummow, Hayne and Heydon JJ noted at [213] that the concept of less favourable treatment involves an objective assessment and comparison: of the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". The last phrase in s 5(1) qualified by s 5(2) of the Act, which provides that a disabled person's need for different accommodation or services does not constitute a material difference when determining whether the alleged discriminator has treated the disabled person less favourably than a person without the disability. Section 5(1) of the Act requires that the circumstances surrounding the treatment of the disabled person are identified. What must then be examined is what would have been done in those circumstances if the relevant person were not disabled; see Purvis at [223] per Gummow, Hayne and Heydon JJ. These circumstances are the objective features that surround the actual or intended treatment of the disabled person by the alleged discriminator; see Purvis at [224]. If the comparison reveals that the disabled individual was treated less favourably, the further question which must be asked is whether that difference was "because of" their disability; see Purvis at [236] per Callinan J. The relevant questions for determination are, firstly, how would Focus have treated a person in these circumstances without Ms Devers's profound deafness? Secondly, if the treatment of Ms Devers was less favourable than the treatment that would be given to a person without her disability, was that difference because of her disability? Section 15 of the Act only applies if it is shown that Ms Devers was treated less favourably than a person without her disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Ms Devers's treatment. In the present case, that the relevant "comparator" is an employee of Focus, in a similar role, without Ms Devers's disability who also has her attributes. For example, the relevant comparator in Purvis was a child without the applicant's disability who nevertheless displayed the same violent behaviour as the applicant; Purvis at [222] [225]. I will separately consider each allegation of direct discrimination and the relevant circumstances in relation to each allegation. Doctors' appointments Ms Devers claims that Focus treated her less favourably than hearing staff in that it would not allow Ms Devers to attend doctors' appointments with deaf clients but would allow hearing staff to attend appointments. She said that she was only permitted to attend medical appointments when she went with David and Leigh Travaglia's mother, Ms Blake, and did so on two or three occasions. Mr Edo Travaglia gave evidence that both Ms Sipthorpe and Ms Colleen McFarlane told him that "Focus management" had said that Ms Devers was not permitted to take clients to medical appointments as she was deaf and unable to communicate with doctors. However this evidence is hearsay and unsupported by other evidence.


case_text: stated by Mason CJ and Gaudron J in Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her, and to define the issues for decision. See also Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883 at [4] [5] per Finkelstein J. The allegation that Ms Devers was subject to unspecified "restrictions that hearing staff were not subject to" fails to enable Focus or this Court to determine what allegations of discriminatory treatment are made.


case_title: Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883


case_text: Devers has not succeeded in establishing any direct or indirect discrimination by Focus. The application is dismissed. There are no special or unusual circumstances in this proceeding which dictate that costs should not follow the event; see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J. I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 27 November 2009 Counsel for the Applicant: Mr D J Hancock Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr R A Millar Solicitor for the Respondent: Middletons Dates of Hearing: 25-28 May, 1-4 June and 31 August 2009 Date of Judgment: 27 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1392.html


case_text: With regard to the third ground, the learned Federal Magistrate referred to the observation by Gleeson CJ in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] where Gleeson CJ said: '... to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.' The learned Federal Magistrate said, in relation to the third ground, that no such precision had been provided. 20 The learned Federal Magistrate found no other possible assertion of jurisdictional error apparent from his own reading of the Tribunal decision and the book of relevant documents. He found that the Tribunal decision was free from jurisdictional error. He dismissed the judicial review application with costs. 21 The grounds of appeal stated, in the notice of appeal filed on 15 February 2006, are: '2. I was refused natural justice. 3. The Tribunal identified the wrong issue. 4. The Tribunal made jurisdictional error.'


case_text: In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.


case_title: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510

case_text: When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.


case_text: Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration & Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.


case_text: In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).


case_title: Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 , 120 FCR 1

case_text: Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal . It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42] , [2002] FCA 594 ; 120 FCR 1 at 11; SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 at [1] . With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.


case_title: Black v Minister for Immigration & Citizenship [2007] FCAFC 189 , 99 ALD 1

case_text: The fact that the Tribunal did not use the language of " hardship " that would be suffered by the Applicant -- as opposed to the " hardship " that would be occasioned to others -- it is considered, is not decisive. That which is decisive against the Applicant is the fact that the Tribunal considered the entirety of the evidence, including the evidence as to the effect that the decision would have upon him. Subject to a proper application of Direction No 21 , the weight to be given to the considerations addressed is a matter for the Tribunal alone: cf Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [33] [37], [2007] FCAFC 189 ; 99 ALD 1 at 8 9; Tapel v Minister for Immigration & Citizenship [2008] FCA 857 at [27] .


case_text: The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.


case_text: Even if there had been a failure on the part of the Tribunal to consider the hardship which the decision would have upon him, such a failure would not have amounted to a failure to consider a matter which the Tribunal was " bound " to take into account, and any such failure would not have amounted to jurisdictional error. A comparable argument was advanced and rejected in Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160. The trial judge had there rejected the argument as follows: [53] I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of [the Applicant's son], but even if he did not, he did not err in law in not doing so. ...: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779 , 100 ALD 52. An appeal was dismissed. Gray, Finn and Mansfield JJ relevantly concluded: [31] Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly [his son]. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from [his son] is implicit in the cancellation of the appellant's visa, it is important that Direction No 21 only makes specific reference (in the circumstances of this case) to hardship to [his son]. It is at least implicit in the Tribunal's finding that the prospects of the appellant and [his son] developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with [his son], and therefore to any detriment he suffered from the absence of a such a relationship.