case_text: On its proper construction, the Act permits the opinion or assessment of the education provider to be provided for in the regulations, to be provided to the Minister and had regard to and be considered correct in the decision making of the Minister (see discussion in Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460 at 481 per Gibbs J). 43 The fact that the scheme of the Act results in an absence of discretion in the cancellation of a visa where the Minister has decided that the requirements of Condition 8202 has not been satisfied under s 116 does not determine that there has been a delegation of the power to specify visa conditions to the education provider. It does not convert the specification by the Governor-General of conditions pursuant to s 41 into an impermissible delegation of the specification of the visa condition. 44 Mr Gormly emphasises the misleading nature of the Notice. Specifically, he contends that the Notice implies that there exists a discretion on the part of the Department, so that an explanation for the breach will be taken into account. It does not, he observes, inform the applicant that her visa will be cancelled if a breach of condition did occur and she attends to "explain" that breach in response to the Notice. The applicant was thereby deprived of the opportunity of not responding to the Notice, awaiting the automatic cancellation of her visa and then applying to the Minister under s 137K of the Act, where exceptional circumstances can be taken into consideration (s 137L(1)(b)). This represents the alleged practical unfairness of the denial of natural justice.


case_outcome: cited

case_title: Turner v Owen (1990) 26 FCR 366

case_text: Mr Gormly relies upon the conclusion by French J in Turner v Owen (1990) 26 FCR 366 that delegating to the Minister the power to prohibit goods, which in his opinion ' are of a dangerous character and a menace to the community ' constituted an unlawful delegation because those words ' are not indicative of a factual criterion or class description limited by any intelligible boundary ' and were legislative in character (at 389). French J concluded that the regulations in that case impermissibly asked the Minister to prohibit, rather than the Governor-General. 37 Here, the delegation is not of the decision to decide whether a visa holder satisfies the criterion. Section 41 provides that the regulations may provide that visas are subject to specified conditions. Condition 8202 is such a condition specified in the Regulations. The Minister decides whether to grant a visa, subject to satisfaction that the criteria are satisfied (s 65). The Minister decides whether a visa holder satisfies the specified condition (s 116(1) of the Act, reg 2.43(2)(b)(ii) of the Regulations). Further, as a matter of reality, an academic result that, for a specified course, is "at least satisfactory" is limited ' by an intelligible boundary ' and is not legislative in character (cf Turner at [389]). 38 Section 505, which refers specifically to such matters for visa applicants, does not delegate the whole of power to decide whether an applicant for a visa satisfies the relevant criterion. The section provides for the making of regulations under which the Minister, when required to decide whether an applicant for a visa satisfies a specified criterion, may obtain the opinion, assessment, finding or decision of a specified person or organisation and have regard to it and to take it to be correct. 39 The sub-delegation in s 505 is not of a legislative but of an administrative character. It is not the delegation of a wide field of operation but, rather, a narrow question of fact.


case_text: A sub-delegation under s 504 is of the same character. The Act does not reserve any of the delegated functions in Condition 8202 to the Governor-General. The Governor-General has exercised the power conferred by the Act to make regulations, within the limits laid down by the Act ( Twinn v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 242 ; (2005) 147 FCR 490 at [22] ). The authorisation given by s 504 encompasses the making of regulations by the Governor-General to allow administrative functions to be undertaken by the Minister for the purposes of the regulations ( Twinn at [23]). For the purposes of deciding whether an applicant for a visa satisfies the condition for a visa, the regulations may make provision for the Minister to have consideration of the matters enunciated in s 505 of the Act. The fact that this was particularised in s 505, "to avoid doubt", indicates a statutory acknowledgment that the power to make regulations in respect of those matters already existed by reason of s 504 and s 41(1) of the Act. 41 Once the Minister is satisfied that the condition has not been met, there is a mandatory cancellation by reason of s 116(3) but that does not convert the sub-delegation into an effective abdication of powers (see generally Pearce D and Argument S, Delegated Legislation in Australia (3 rd ed, Butterworths, 2005) Ch 23).


case_text: There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.


case_text: There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal. 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.


case_text: This Court's jurisdiction to punish contempts arises from s 31 of the Federal Court of Australia Act 1976 (Cth). Section 31(1) confers upon the Court the same power to punish contempts as the High Court possesses. The section effectively declares that this Court has the contempt powers which are inherent in the judicial power of the Commonwealth: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J. 23 The contempt charges in this case were laid in accordance with O 40 r 5 and r 6 of the Federal Court Rules . Counsel for Mr Spencer, Mr Bailey, argued that service of the Orders on Mr Spencer was irregular having regard to the provisions of O 37 r 2(1). However, that argument fails to take account of r 2(5). Sub-rule (5) permits a judgment or order to be enforced against a person by committal for contempt, notwithstanding that service has not been effected in accordance with r 2, where the person has notice of the judgment or order either by being present when the judgment is pronounced or when the order is made, or by being notified of the terms of the judgment or order by telephone, telegram or otherwise. In this case, Mr Spencer was represented by counsel when the Orders were made by Weinberg J. He had previously consented to and signed copies of the relevant orders. And shortly after the Orders were made, he was notified by his solicitor of the terms of the Orders. There was no failure to comply with O 37.


case_text: The applicant carries the onus of proof. The charges must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Holloway' ) at 534; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 (' ACCC v INFO4PC' ) at 27-28 [4]. 26 It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530.


case_outcome: considered

case_text: The applicant carries the onus of proof. The charges must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Holloway' ) at 534; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 (' ACCC v INFO4PC' ) at 27-28 [4]. 26 It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530. 28 Thus, it will be sufficient to establish a contempt if it is proved beyond reasonable doubt that the person in question was aware of the order and intentionally did an act, or omitted to perform an act, with the result that there was a breach of the order. An honest belief that a failure to act does not constitute a breach of an injunction is not a defence, but it may be relevant to penalty: see McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 313-314; ACCC v INFO4PC at 28 [10]. 35 A person in Mr Spencer's position must strictly observe the terms of a Court order. It is not necessary for the Court to prescribe the manner in which the required result is to be achieved. It is sufficient if the Court clearly specifies that the respondent is to carry out a particular course of conduct: see ACCC v INFO4PC at 28 [7]. There was nothing unclear or ambiguous about paragraph 13 of the Orders. Mr Spencer's obligation was to provide the documents in a form that could be accessed and read by the recipients. Mr Spencer did not comply with this requirement and his non-compliance was deliberate. 61 In oral submissions, counsel for Mr Spencer tendered an apology in similarly reserved and conditional terms. I consider that Mr Spencer has not shown any remorse for the fact that he wilfully disobeyed the Orders. Indeed, he has not acknowledged that he is in contempt of court. Through his counsel, Mr Spencer expressed his wish to 'rectify any remaining problems with his compliance with the orders.' In evidence, Mr Spencer added that he would 'rectify any and all points that the Court... says that I have not complied with in the orders.' I do not regard Mr Spencer's statement as one that affords any indication of regret, remorse or contrition about his contempt: it is merely an offer to do what Mr Spencer is in any event obliged to do under the Orders: see Australian Prudential Regulation Authority v Simiton (No 3) [2006] FCA 397 at [14] - [15] ; ACCC v INFO4PC at 57-58 [155]. 67 Costs can be awarded on an indemnity basis where it is warranted by the interests of justice. In many contempt cases, the court has concluded that justice requires that the respondent pay the applicant's costs on an indemnity basis: Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358; and ACCC v INFO4PC at 58 [160]-[162].


case_text: Any contempt of court, including any wilful disobedience of the orders of the Court, is a very serious matter. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 (' ACCC v Hughes '), Tamberlin J said at [15]: 'Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.' Courts have repeatedly made statements to similar effect: see Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 (' ACCC v Globex' ) at 43,102 [54]; and Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229 (' Hickey' ) at 243 [35]. 26 It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530. 52 The applicant contended that the relevant form of disclosure document was the longer form in Annexure 1, but it proceeded to analyse Mr Spencer's compliance against the short form document in Annexure 2. It submitted that the document that Mr Spencer provided by way of a disclosure statement did not, on any view, comply with the requirements of Annexure 2. In particular, it submitted that it did not comply with Items 1 to 4, 9, 10 and 15 of Annexure 2 of the Code. In addition, the applicant argued that the previous franchise agreements contained ongoing obligations that survived termination, and it said that these obligations were not properly addressed in the short form disclosure document prepared by Mr Spencer. The applicant also submitted that Mr Spencer had made no attempt to contact the applicant, or to approach the Court, to clarify the nature and scope of his obligations in respect of the disclosure document: see ACCC v Hughes at [26]. 53 To some extent, the applicant acknowledged that there were difficulties with paragraph 12 of the Orders. Notwithstanding its contention that there are deficiencies in the disclosure document provided by Mr Spencer, it does not press for an order that a further revised disclosure document be provided by Mr Spencer. 54 I am satisfied that there are difficulties with paragraph 12 of the Order. It is unclear what it requires of Mr Spencer. Once Mr Spencer appreciated the difficulties he confronted in complying with paragraph 12, the appropriate course for him to take would have been to raise those difficulties with the applicant and with the Court. But in all the circumstances, I am not prepared to find that Mr Spencer committed a contempt by the way in which he endeavoured to comply with paragraph 12 of the Orders. 55 The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].


case_text: Any contempt of court, including any wilful disobedience of the orders of the Court, is a very serious matter. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 (' ACCC v Hughes '), Tamberlin J said at [15]: 'Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.' Courts have repeatedly made statements to similar effect: see Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 (' ACCC v Globex' ) at 43,102 [54]; and Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229 (' Hickey' ) at 243 [35]. 68 The applicant brought these proceedings by notice of motion to ensure compliance with the Orders and consistently with its charter to act in the public interest: ACCC v Globex at 43,105 [84]. The applicant has been forced to take these extra steps to enforce its rights after they have already been adjudicated by the Court. 69 Mr Spencer had a duty strictly to comply with paragraph 13 of the Orders. He failed to do so and he is still in breach. He failed to take the necessary steps to comply with the Orders, notwithstanding correspondence from the applicant's solicitors warning that his failure amounted to a contempt. He was given ample opportunity to comply with the Orders. 70 I consider that it is appropriate in the interests of justice in this case to make an order that Mr Spencer pay the applicant's costs of and incidental to the notice of motion on an indemnity basis. I do not consider that my finding that the charge of contempt is not made out in respect of paragraph 12 of the Orders warrants me taking a different view as to costs. 71 I will make a declaration that Mr Spencer is in contempt of paragraph 13 of the Orders. 72 The remaining question is what course should be taken in relation to the further operation of paragraph 12 of the Orders. While the applicant submitted that paragraph 12 has been breached, it did not press for an order that would have the consequence that Mr Spencer is required to take further steps to comply with paragraph 12 of the Orders. In the circumstances, I propose to order that paragraph 12 of the Orders be vacated. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young J. Associate: Dated: 6 June 2006 Counsel for the Applicant: JP Moore Solicitor for the Applicant: Deacons Counsel for the Second Respondent: D Bailey Solicitor for the Second Respondent: David Stagg Tonkin & Co Date of Hearing: 18 May 2006 Date of Judgment: 6 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/695.html


case_text: Any contempt of court, including any wilful disobedience of the orders of the Court, is a very serious matter. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 (' ACCC v Hughes '), Tamberlin J said at [15]: 'Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.' Courts have repeatedly made statements to similar effect: see Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 (' ACCC v Globex' ) at 43,102 [54]; and Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229 (' Hickey' ) at 243 [35]. 55 The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].


case_text: It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530. 27 In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513.


case_text: In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513. 51 Counsel for Mr Spencer submitted that it is a condition of proving civil contempt that the terms of the relevant order are clear, unambiguous and capable of compliance: see Advan at [31]. In his submission, paragraph 12 of the Orders is unclear and ambiguous, and there is real doubt whether it was capable of being complied with by Mr Spencer on or after 8 February 2006.


case_text: In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513.


case_text: Thus, it will be sufficient to establish a contempt if it is proved beyond reasonable doubt that the person in question was aware of the order and intentionally did an act, or omitted to perform an act, with the result that there was a breach of the order. An honest belief that a failure to act does not constitute a breach of an injunction is not a defence, but it may be relevant to penalty: see McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 313-314; ACCC v INFO4PC at 28 [10].


case_outcome: referred to

case_text: It must be borne in mind that the persons to whom Mr Spencer was required to provide the documents were former franchisees of Contact Plus. Those persons had had a very unhappy experience with Contact Plus and Mr Spencer. Mr Spencer had threatened to commence legal proceedings against a number of the former franchisees: see Australian Consumer and Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396 at [29] . The content of the 6 April email shows that Mr Spencer maintained considerable ill-will towards the intended recipients of the email. It also reveals that he felt aggrieved by the outcome of the proceedings and was antagonistic towards the applicant and the addressees of the email. 37 Paragraph 9 of the Orders provided that the facts set out in the attached statement of agreed facts constitute findings of fact for the purpose of s 83 of the Act. An obvious purpose of paragraph 13 of the Orders was, therefore, to inform those persons to whom the Orders were to be sent of the findings of fact that had been made against the respondents. Once informed of the findings of fact, they could take them into account in determining whether any, and if so what, action should be taken by them against the respondents to protect or assert their rights. The excision of the agreed statement of facts from every copy of the Orders that Mr Spencer provided must be seen in this light. I find that the excision of the agreed statement of facts was intentional. 38 In the course of cross-examination, Mr Spencer was asked to explain why it would not have been easy for him to send the Orders by email, without being password protected. His answers were as follows: 'These people have been very, very difficult to deal with. Since 2003 I have constantly had this thing on my back. Constantly. No let up. These people have vexatiously sent emails on mass distribution lists. The copies were submitted in all this paperwork. They have been vexatious about this whole case right through. They are Ms Ford and Byron are not part of the ACCC action but they have been watching, commenting and even appearing at the back of one of my pre-motion hearings. They are aware of everything that has been going on and they cannot wait to stick it up me. Consequently this. To answer the question is that sending by email is not it is like throwing a dart. Closing your eyes and throwing at a dart board. Because the email address is alive today does not mean to say it has been redirected. It was a commercial email address, fordrec. I have no idea whether in the last two years I have had any contact with this lady whether she has moved, sold her business or whatever. If her email address was jillford@bigpond my answer to this gentlemen would have been I would have been more at ease sending it to a personal email address but not a commercial email address. MR MOORE: My question could you explain to his Honour why it would not have been easy for you to send a document that was not password protected to the email address of Ms Ford? --- And my answer was I had no idea whether that email address was still active and I wanted to find out.' 39 Later in Mr Spencer's evidence, I asked him whether, in view of the feelings he had described towards Ms Ford and others, he had taken the view that he wanted to make it difficult for them to access the Orders, including the agreed statement of facts. His answer was: 'Absolutely not, your Honour, because I knew that they would do exactly what they did and use it against me.' I reject the denial in the first part of this answer. 40 Having carefully considered all of the evidence, I find that Mr Spencer took a series of steps, deliberately, to render it difficult for the recipients of the emails to access and read the terms of the Orders. He knew that the email recipients would be most unlikely to provide him with their personal details, including their current telephone number. He thought it most unlikely that they would take the steps he required to obtain access to the password. He knew that this would tend to defeat the purpose of the Orders, while allowing him to claim that he had technically complied with them. I am also satisfied that Mr Spencer deliberately excised the agreed statement of facts from the Orders. He did so because, as he said in evidence, he did not want the relevant persons to be able to use the agreed statement of facts against him.


case_text: The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].


case_text: The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39]. 57 As discussed by Merkel J in Louis Vuitton at 616-617 [25], the range of factors to be considered in deciding the appropriate penalty include the following: (a) the contemnor's personal circumstances; (b) the nature and circumstances of the contempt; (c) the effect of the contempt on the administration of justice; (d) the contemnor's culpability; (e) the need to deter the contemnor and others from repeating contempt; and (f) any prior conviction for contempt. I would emphasise that the Court's power in relation to contempt is to be exercised so as to ensure that orders are complied with, and to deter conduct in contravention of its orders.


case_title: Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162


case_title: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238


case_title: Smith v The Queen (1991) 25 NSWLR 1

case_text: In deciding the amount of any fine, the Court will take into account the contemnor's financial means: Smith v The Queen (1991) 25 NSWLR 1. The Court may suspend a fine on terms. In fixing the appropriate penalty, the Court will also take into account whether or not there is genuine contrition and whether or not a full and genuine apology has been given. 59 Having regard to my findings, I consider that the present case warrants a substantial penalty. There is an element in Mr Spencer's conduct that borders on defiance of the Orders. He deliberately adopted a series of steps that were designed to deny the benefit of the Court's Orders to the intended recipients of the documents. In my view, a penalty must be imposed that demonstrates to Mr Spencer, and to others, that the Court's orders cannot be disobeyed with impunity. 60 In his affidavit, Mr Spencer proffered an apology in these terms: 'If, as a result of my misunderstanding, I have failed to comply in sufficient time with the orders I apologise to the Court. In all the relevant circumstances I believe I should be excused.'


case_text: In oral submissions, counsel for Mr Spencer tendered an apology in similarly reserved and conditional terms. I consider that Mr Spencer has not shown any remorse for the fact that he wilfully disobeyed the Orders. Indeed, he has not acknowledged that he is in contempt of court. Through his counsel, Mr Spencer expressed his wish to 'rectify any remaining problems with his compliance with the orders.' In evidence, Mr Spencer added that he would 'rectify any and all points that the Court... says that I have not complied with in the orders.' I do not regard Mr Spencer's statement as one that affords any indication of regret, remorse or contrition about his contempt: it is merely an offer to do what Mr Spencer is in any event obliged to do under the Orders: see Australian Prudential Regulation Authority v Simiton (No 3) [2006] FCA 397 at [14] - [15] ; ACCC v INFO4PC at 57-58 [155].


case_text: I have concluded that the appropriate penalty is to impose a fine of $8,000 on Mr Spencer in respect of the contempt constituted by his wilful breach of paragraph 13 of the Orders. This penalty is within the range suggested by the authorities: see ACCC v Globex; ACCC v INFO4PC ; and Australian Competition and Consumer Commission v Jayco Pty Ltd [2003] FCA 94. 63 I have taken account of Mr Spencer's personal circumstances. Mr Spencer said that he is currently unemployed and is not remunerated for the work he does as a director of CPG Recruitment Pty Ltd ('CPGR') or Debtregister Pty Ltd ('Debtregister'). He holds himself out to be the chief executive officer of Debtregister, although he said in evidence that he also fills the roles of marketing manager, software developer or whatever he wanted to call himself. He said the work he carries out for CPGR includes the preparation of quarterly BAS statements and the pursuit of various debts allegedly owed to CPGR. He said that the only person earning an income in CPGR is his wife, who is supporting him and his family. 64 In my view, Mr Spencer has not been forthcoming about his personal position and financial circumstances. There is, on the whole, insufficient evidence to suggest that the resources available to Mr Spencer would be inadequate to meet a fine of $8,000. Nor do I consider that the imposition of a fine of $8,000 would impose undue hardship upon him.


case_text: Costs can be awarded on an indemnity basis where it is warranted by the interests of justice. In many contempt cases, the court has concluded that justice requires that the respondent pay the applicant's costs on an indemnity basis: Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358; and ACCC v INFO4PC at 58 [160]-[162].


case_title: Martyniuk v King [2000] VSC 319

case_text: Examples of cases in which receivers have been appointed on an interlocutory basis can be multiplied. Relevantly, a court may appoint a receiver to a trust in order to protect trust property. Such an appointment may be made where the trust is "in a state of disarray" Martyniuk v King [2000] VSC 319 at [14] (Warren J). Her Honour there observed, citing Halsburys Laws of England (4 th ed, Vol 39, par 827), that the general ground upon which a court appoints a receiver is ultimately in every case the protection or preservation of property for the benefit of persons who have an interest in it. She went on to say (at [15]): 'The basis upon which a receiver may be appointed has been regarded by the courts on even as wide a basis as when the circumstances render it just and convenient.' See Manchester and Liverpool District Banking Co v Parkinson (1888) 22 QBD 173. And further (at [16]): 'The court may appoint a receiver of trust property where that it necessary for the wellbeing of the trust." See Ford & Lee The Principles of the Law of Trusts (2 nd edition) at [1739].


case_title: Manchester and Liverpool District Banking Co v Parkinson (1888) 22 QBD 173


case_title: Vouros as Liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1933) 33 ACSR 527

case_text: A receiver may be appointed to a body to conduct litigation on its behalf. In Vouros as Liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1993) 33 ACSR 527, Austin J dismissed an application for the appointment of a receiver to a company in liquidation to conduct litigation on its behalf. Nevertheless his Honour accepted that there was a power to make such an appointment (at [56]): 'These cases demonstrate that the court has the power to appoint a receiver in cases where it decides to permit proceedings to be commenced and prosecuted in the name of a company in liquidation by a person other than the liquidator.' 74 In my opinion the Court, in an appropriate case, may appoint a person as a receiver to an incorporated body to conduct or defend litigation on its behalf. The power may be exercised where the body is effectively paralysed by internal dissension or where for one reason or another those charged with its management are unable to be identified or, if identified, are unable to act for one reason or another. 75 The present case should not be approached as one simply concerned with the protection of private property. To the extent that CRI holds its Sirtex shares free of any trust in favour of the University, it holds them for the purposes set out in its Constitution . The assets so held cannot be applied to the private benefit of the members. The circumstances may be seen as somewhat analogous to a charitable trust. The public interest served by the association's objects is protected by its own rules relating to the disposition of its assets on a winding up. These are reinforced by like provisions in the Associations Incorporation Act . 76 It is apparent from the evidence that there is considerable room for debate about the membership of CRI, whether it has any members and, if so, who they are. I do not consider, given the apparently incomplete and somewhat conflicting nature of the CRI membership records, that it is possible to determine its membership within any reasonable certainty and within a reasonable time. 77 Whatever their legal status in the association the persons presently claiming to be the board of CRI are not appropriate persons to make decisions about its conduct in relation to the present litigation. One of them, Dr Gray, is being sued by the University in his personal capacity. The chairman is his solicitor. The other member of the board is his sister. Dr Gray's letter to Sirtex shareholders about the alignment of the interests of CRI with those of himself and Sirtex is suggestive of an inability to distinguish between his interests and that of CRI.


case_text: turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P & O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J. The Court must assess whether the proposed settlement is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. In making this assessment, the Court may, and ordinarily will, take into account the amount offered to the group members, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the amount nominated in the settlement offer, the terms of any advice from counsel and any independent expert, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement: see Williams v FAI Home Security [2000] FCA 1925 ; 180 ALR 459 at [19] . The Court must also be satisfied that the settlement has been made in the interests of the group members as a whole, and not merely the interests of the first and second applicants and the respondent: see ACCC v Chats House 71 FCR at 258.


case_title: Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459


case_text: turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P & O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.


case_title: Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114


case_title: Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311


case_title: Crawford v Bank of Western Australia Ltd [2005] FCA 949


case_title: Georgiou v Old England Hotel Pty Ltd [2006] FCA 705


case_title: Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322


case_title: Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897


case_text: The appellant, a citizen of the People's Republic of China, claimed to fear persecution as a result of his practice of Falun Gong. The appellant's application for a Protection (Class XA) visa was refused. The appellant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention. The appellant's application to the Federal Magistrates Court for review of the Tribunal decision was dismissed by Driver FM ( SZKTC v Minister for Immigration [2007] FMCA 1355). 2 In his notice of appeal before this Court the appellant raises two broad grounds: 1. That the Tribunal failed to carry out its statutory duty. 2. That the Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter. 3 No particulars of this ground are given in the notice of appeal and it does not seem to have been raised before Driver FM. From my review of the material, it is apparent that the Tribunal complied with s 425 of the Migration Act 1958 (Cth) ('the Act'). The Tribunal invited the appellant to a hearing, the appellant responded to the invitation, he attended the hearing with an interpreter and his daughter was present as an observer. The appellant gave evidence before the Tribunal, which was noted in the Tribunal's reasons.


case_outcome: distinguished

case_text: The first respondent refers also to the decision in A42 of 2003 v Minister for Immigration [2004] FMCA 1002 , affirmed by Jacobson J in this Court ( Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207) and refused special leave to appeal to the High Court by Heydon and Crennan JJ ( Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967). In that case, it was decided that it was appropriate to dismiss an application for review as an abuse of process in circumstances where an earlier application for an order nisi had been dismissed by consent (without a merits hearing taking place).


case_text: The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 ; SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker).


case_title: Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207


case_title: Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967


case_text: Raphael FM in his decision relied upon authorities relating to dismissal of migration proceedings as an abuse of process: specifically Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133. However, as Edmonds J pointed out in his reasons for judgment on the grant of leave to appeal, this decision (and another decision to which it referred, namely Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10) were both decided in circumstances where a second application to the Federal Magistrates Court had been lodged after the first application had been heard and dismissed by the Court . That is clearly distinguishable from the present case, in which the appellant's application for judicial review has never had a merits hearing, and the first respondent conceded as much. 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503 . I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words ' disposed of ' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean ' dismissed '. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place.


case_outcome: discussed

case_text: His Honour added at [9]: 'This is not the first time the court has had to deal with a problem caused by the alleged fault of a migration agent. It has been made clear by Dowsett J in B41 of 2003 v Minister for Immigration [2004] FCA 30 that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. It may be that if the applicant has been badly served by his migration agent, the Minister will hear sympathetically an application under s 48B of the Migration Act 1958 (Cth) ('the Act'). In the meantime court proceedings relating to the decision must be brought to an end.' 16 There is no suggestion in his reasons that Raphael FM relied upon the statements contained in the affidavit of Mr Clisby to the effect that the appellant was aware of the institution and discontinuance of the Adelaide proceedings. 30 There is another aspect of his Honour's decision which I believe warrants consideration. That is the statement by his Honour (reproduced at [15] above) that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. In support of this proposition Raphael FM cited the decision of Dowsett J in B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30. 31 B41 was a case in which the appellant alleged that he had failed to attend the Tribunal hearing because of advice from his migration adviser that it was not necessary for him to do so. The appellant also alleged that his migration adviser had not passed on copies of letters of invitation to the Tribunal. In that case, Dowsett J held that failures by a migration agent could not be a basis for an allegation that the Tribunal failed to afford the appellant procedural fairness.


case_title: Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438


case_outcome: applied

case_text: The decision by Raphael FM to dismiss the appellant's case as an abuse of process was an exercise of discretion by his Honour. Accordingly, I must be guided by the principles expressed in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 in relation to an appeal from an exercise of discretion. In that case, Dixon, Evatt and McTiernan JJ said (at 504-5): 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 19 The appellant's notice of appeal and his submissions relate primarily to the substantive merits of his judicial review application, rather than to the question whether the dismissal as an abuse of process was an error of law, which is the proper question in this appeal. However, the correct issue was squarely raised in the judgment of Edmonds J relating to leave to appeal and has been dealt with in the submissions of the first respondent. In view of the fact that the appellant is unrepresented and does not speak English, and of the importance of the matters in dispute, I consider it appropriate that the Court consider this issue, even though it has not been specifically raised in the notice of appeal. 20 At this hearing, the appellant provided some evidence relating to the reasons for discontinuing the Adelaide proceedings and for the delay in instituting these proceedings. However, whilst I consider the appellant to have been a generally reliable witness, I do not consider that I can take fresh evidence on these matters into account in determining whether his Honour's discretion miscarried. 21 There are two questions of principle which I consider are raised by the judgment of Raphael FM. The first is whether his Honour misinterpreted the authorities in respect of dismissal for abuse of process in determining that the application should be dismissed. The second is the question of whether Raphael FM could properly take into account the fault of the migration agent (if proven) in determining how to exercise his discretion. 37 It is clear from House v The King that, having found that Raphael FM's discretion miscarried, I may re-exercise the discretion if in a position to do so: see the passage reproduced at [18] above. Given that the transcript of the proceedings before Raphael FM is in evidence and based upon his Honour's factual findings contained in his reasons for judgment, I consider that I am in a position to do so. 38 Raphael FM did not make any specific factual finding in respect of the behaviour of the appellant's migration agent. However, as referred to at [36] above, it is clear from his Honour's reasons that he was concerned by the appellant's evidence about the agent. His Honour considered these allegations of misconduct were sufficiently credible to warrant a referral of the file and the transcript to the Migration Agents Review Panel. In my opinion, his Honour's concerns should weigh against the striking out of the appellant's application as an abuse of process. 39 I also consider the fact that the appellant has not had a merits hearing to be significant. This is a factor which, as discussed above, was not fully taken into account by Raphael FM in his consideration. In my opinion, this is also a significant factor weighing against the striking out of the application. 40 A third factor to consider is the appellant's delay in bringing his application for a review of the Tribunal's decision. The current application was filed in January 2005, over 26 months after the Tribunal's decision was handed down. On its face, this period of delay is significant and in some circumstances, with no justification, might be sufficient of itself to warrant a dismissal. However, if the appellant's claims are believed, the delay attributable to the misconduct of the migration agent would account for at least 18 months. Raphael FM did not make any specific findings on the credibility of the appellant. The respondent has pointed to an exchange between the appellant's migration agent and Raphael FM contained in the transcript as follows: 'MIGRATION AGENT: This is as well actually, that's why I don't think it's an abuse of process here because the person was clearly unaware of the failure of his application ... HIS HONOUR: He said he was but he's been cross-examined at some length and I'm afraid I don't really quite believe him but I don't know whether he was cheated by the other migration agent or he wasn't and I am going to refer the matter to the MARA people and they can sort it out ...' This statement is ambiguous and no adverse finding is recorded in his Honour's reasons. Further, his Honour clearly believed enough of the appellant's evidence to refer the matter to the Migration Agents Review Panel. Given these circumstances, I do not think the above exchange can be considered determinative, and I consider the appellant should be given the benefit of the doubt. 41 In all of the circumstances, I do not believe that this is a case which warrants dismissal as an abuse of process. Given the allegations of misconduct by the appellant's migration agent, which appear to me, and which evidently appeared to Raphael FM, to have some substance, and given that the appellant has not had the opportunity to have the merits of his appeal heard, I consider that the matter should be allowed to proceed. Accordingly, I will order that the respondent's notice of motion seeking strike out of the appeal be dismissed, and that the matter be remitted to the Federal Magistrates Court for determination. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 September 2006 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 14 July 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1170.html


case_title: NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184


case_text: The fault of a migration agent has in fact been taken into account in at least one application for an extension of time in which to file an appeal in this Court: see SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979. In that case, Lander J was satisfied that the applicants were unaware that they had brought proceedings in this Court, and that the failure to file the notice of appeal in time was the fault of his migration agent: see at [51] and [52]. His Honour held that, given those factors, the interests of justice dictated that the applicants should be granted an extension of time. 36 I see no reason why the faults of a migration agent should not similarly be taken into account in an application for dismissal on the grounds of abuse of process. The knowledge and culpability of the appellant in these proceedings is, in my opinion, a material factor in deciding whether the prejudice to the first respondent can be justified in all the circumstances. Of course, any misconduct of a migration agent must be proven. In these proceedings, however, the appellant provided oral evidence of his migration agent's conduct to the Federal Magistrates Court. There are certainly many curious features in the history of these proceedings which appear to be difficult to reconcile with an appropriate standard of behaviour on the part of the appellant's migration agent. Raphael FM was sufficiently concerned by the evidence given by the appellant that he referred the papers to the Migration Agents Review Panel for consideration. Nonetheless, his Honour clearly indicated that he did not consider that this matter had any bearing on his determination that the matter was an abuse of process. In my opinion, this was an error of principle which also justifies the quashing of his Honour's decision.


case_title: SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397


case_text: The appellant applied for leave to appeal from the decision of Raphael FM on 2 August 2005. Edmonds J delivered judgment on the application for leave to appeal on 30 September 2005 and granted leave to the appellant: see SZFOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1374. Edmonds J, after considering numerous authorities relating to abuse of process, found that it was arguable that Raphael FM erred in dismissing the appellant's case as an abuse of process when there had been no hearing on the merits. His Honour referred in particular to the fact that, in contrast to the facts in the present appeal, several of the authorities relied upon by Raphael FM involved an issue estoppel: see at [18] of the reasons of Edmonds J.


case_outcome: followed

case_text: The leading High Court authority in respect of abuse of process is the decision in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378. In that decision Mason CJ, Deane and Dawson JJ said at 392-3: 'Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.' 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503 . I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words ' disposed of ' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean ' dismissed '. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place. 27 I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be ' unjustifiably vexatious and oppressive ', the Court also made it clear that this should only occur in an extreme or exceptional case. 28 In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour's reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour ( Applicant S503 ) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all. 29 Accordingly, in my opinion, the exercise of his Honour's discretion was affected by an error of principle.


case_text: Raphael FM in his decision relied upon authorities relating to dismissal of migration proceedings as an abuse of process: specifically Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133. However, as Edmonds J pointed out in his reasons for judgment on the grant of leave to appeal, this decision (and another decision to which it referred, namely Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10) were both decided in circumstances where a second application to the Federal Magistrates Court had been lodged after the first application had been heard and dismissed by the Court . That is clearly distinguishable from the present case, in which the appellant's application for judicial review has never had a merits hearing, and the first respondent conceded as much.


case_text: In January 2008, the defendants sought a stay of the claims made against MPG by ASIC pending the hearing and determination of the claims made against the directors or a stay of the claims made against MPG by ASIC until the Court has made findings of fact in relation to the claims against the directors but before final orders. The application was supported by an affidavit sworn by a Mr Babbage, a non-executive director of MPG. The application was refused: ASIC No. 2 . In considering the application for stay, a number of principles informed that decision: see ASIC No. 2 at [5] to [7]. They included: 1. The privilege against self-incrimination and penalty privilege apply to the directors but not MPG: ASIC No. 1 at [5] and ASIC No. 2 at [7]. 2. A corporate defendant (such as MPG) may be required to provide documents and information which may tend to incriminate its officers: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 116. 3. A corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 4. A natural person cannot complain that a corporate defendant's compliance with an order or requirement to produce documents or information might tend to incriminate him or her: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 5. The relevant enquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. No submission has been made to that effect in this case. 6. A corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty: Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256 ; (2004) 58 ATR 163 at 170. However, a corporate defendant will not breach such a direction if it fails to file a statement or an affidavit from a witness where that witness claims privilege: ACCC v J McPhee & Son (Australia) Pty Ltd (1997) 77 FCR 217 at 220 and ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 at [10] , [12] and [13]. That is to say, compliance is not required " if the only source of the information is the director defendants and they are entitled to remain silent ": ASIC No. 1 at [5] (emphasis added). If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.


case_title: ACCC v Eurong Beach Resort Ltd [2005] FCA 1134


case_title: Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No.14) (Federal Court of Australia, 18 August 1995, unreported)


case_text: These are civil proceedings in which penalties are sought: s 1331 of the Corporations Act 2001 (Cth) ("the Corporations Act "). They have been the subject of previous interlocutory decisions: Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 at [1] (" ASIC No. 1 ") at [1] and Australian Securities and Investments Commission v Mining Projects Group Ltd (No 2) [2008] FCA 951 (" ASIC No. 2 ") at [5]. Those reasons for decision adequately describe the nature of the proceedings. 2 For present purposes, it is sufficient to refer to Finkelstein J's description of the proceedings in ASIC No. 1 at [1]: In this action, which is still in its interlocutory phase, the plaintiff, Australian Securities and Investments Commission [("ASIC")], seeks various forms of relief in respect of alleged contraventions of the Corporations Act 2001 (Cth). The defendants are Mining Projects Group Limited (MPG), a minerals exploration company, and two of its directors, Mr Frost and Mr Revelins. ASIC contends that in breach of s 1041H MPG made misleading public announcements about the mineralisation and exploration potential for uranium mining at Niue Island in the South Pacific. The nub of the complaint is that the potential was overstated. The directors are alleged to have knowingly procured the breach and thereby contravened ss 180 and 181 , the directors' duties sections. There are also claims that the directors engaged in insider trading (s 1043A) and improperly used company information (s 183). The only relief sought against MPG is a declaration that it contravened s 1041H. But ASIC seeks the imposition of pecuniary penalties against the directors (s 1317G) and an order that they be disqualified from managing a corporation (s 206C). ... 3 At risk of undue abbreviation, ASIC's pleaded claim is that a Mr Blackburn, a geologist, was retained by MPG " to assist in considering information provided ... and to assess the potential mineralisation and exploration of the Niue Island ("the Blackburn Retainer ")" (par 9) and that, pursuant to that Blackburn Retainer, certain representations were made by Blackburn (pars 10, 11 and 13) ("the Blackburn Adverse Comments"). The substance of the Blackburn Adverse Comments is alleged to be such as would raise questions about the potential mineralisation and exploration of the Niue Island. ASIC further pleads that although the Blackburn representations were recorded in emails from Blackburn to one of the directors of MPG and were "adverse", the ASX released a company announcement about the Niue Island Project issued by MPG ("the Principal Announcement") which, inter alia , did not include one or more of the Blackburn Adverse Comments (par 20). 10 After the defences were filed, two issues arose - whether penalty privilege or privilege against self incrimination would ordinarily relieve the directors from any obligation to provide further details of their defence and, secondly, assuming the privileges could be relied upon, whether the directors had waived, in whole or in part, their right to assert either privilege by filing detailed defences. Those applications were heard and determined by Finkelstein J: see ASIC No. 1 (2007) 164 FCR 32 at [1]. In those reasons for decision, Finkelstein J described the content of the defences filed by the directors and the position of MPG in the following terms (at [5]): When going into the detail they did in their respective defences the directors were mindful of penalty privilege. Each of their defences opens with a statement that the director "claims and reserves his right to claim penalty privilege in the proceeding." No such statement was made by MPG for it is accepted that a corporation cannot claim the benefit of penalty privilege (Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96) or self-incrimination privilege (see Environment Protection Authority v Caltex Refining Co Pty Ltd ... [1993] HCA 74 ; (1993) 178 CLR 477). That MPG cannot claim the benefit of either privilege may not be of much assistance to ASIC if it successfully attacks the company's defence. If MPG's defence is defective and it is required to provide further information, it may not be able to satisfy that requirement if the only source of its information is the director defendants and they are entitled to remain silent. (Emphasis added).


case_title: Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (Federal Court of Australia, 22 May 1998, unreported)

case_text: What this necessarily truncated description makes clear is that the accuracy of the Principal Announcement and the Blackburn Adverse Comments were, and at this stage of the proceedings remain, some of the central issues in the proceedings. It is to these issues that the four new expert reports are directed. However, at no time did any of the defendants inform the Court or ASIC that it intended or even might intend to file and serve these expert reports. Of course, there was no obligation on the directors to file any evidence. MPG, too, could have stood mute, not gone into evidence and simply relied upon whatever positive case the directors ran. But if MPG intended to go into evidence, it was subject to the principles summarised in [11(6)] above. 20 What then did the defendants do? The affidavits exhibiting the reports state that the directors retained Mr Rutter, a geophysicist, on 4 June 2007, Mr Stoker, also a geologist, on 29 November 2007, Mr Lawrence, also a geologist, on 5 February 2008 and Mr Whitehead, on 9 April 2008. Moreover, the affidavit of Mr Whitehead disclosed that a preliminary written response was provided on 24 April 2008, some two weeks before the date for MPG to file and serve its material. The affidavits and reports were filed and served on behalf of the directors under cover of a letter seeking to maintain privilege. The explanation provided by the defendants' counsel for the late filing was that: ... we have flagged to [ASIC] expert reports attacking their expert position when they are not entitled to [such notice]. We've put ourselves at some disadvantage in terms of preparing their expert for them. He at least has a notion of what's coming, without a limitation on it. They are not entitled to that advantage. We were entitled to cross-examine their experts without them knowing what our experts were saying. That was the fact. We've given that away. In the interests of trying to resolve this matter, [ASIC] could have a quick look at it and decide whether they want [to proceed]. 21 That submission was incomplete and not wholly accurate. First, as I have already noted, at the directions hearing on 12 June 2008, what ASIC wanted to know was not about the directors' case, but whether the affidavits and reports from the four experts were intended to form part of MPG's own case at trial. The response from MPG's Senior Counsel was that they were: see [5]. That fact was further reiterated by counsel for the defendants, who not only conceded (properly) that the affidavits and reports were late, but asserted that they were provided "in the interests of trying to resolve this matter". The subsequent submission on behalf of the defendants that MPG only intended to rely upon the affidavits if they were ultimately tendered by the directors is rejected. It ignores, first, that the sole reason why the matter came before me for directions on 12 June was to ascertain whether MPG intended to rely on the reports as part of its own case and, secondly, the submissions made by Senior Counsel for MPG in response to those enquiries.


case_text: ASIC also sought an order that the costs be paid forthwith: O 62 r3(3) of the Federal Court Rules . In support of its application, ASIC referred to the fact that additional costs had been incurred in making arrangements for Mr Blackburn to give his evidence from Peru. The principles which govern the exercise of the discretion under O 62 r 3 were set out by Branson J in Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (22 May 1998, unreported) and Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No.14) (Lindgren J, 18 August 1995, unreported) as cited in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] [20]. The effect of those cases is to suggest that courts will depart from the general rule and order payment forthwith principally where final judgment is "far away" and thus the eventuality of payment is remote. Consistent with those authorities, it is inappropriate in this case to order payment forthwith of the costs thrown away. The trial is now set for September, and final resolution of the proceeding is therefore not too far away. Moreover, the costs incurred were not quantified and the plaintiff is ASIC, a government entity with sufficient funding to meet its costs in the interim. 25 Accordingly, I will order that MPG pay ASIC's costs thrown away but make no order for immediate payment or taxation. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 24 June 2008 Counsel for the Plaintiff: Mr J Elliott SC and Mr D Bennett Solicitor for the Plaintiff: Australian Securities and Investments Commission Counsel for the Defendants: Mr R Richter QC and Mr H Carmichael Solicitor for the Defendants: Oakley Thompson & Co Date of Hearing: 12 June 2008, 19 June 2008 Date of Judgment: 24 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/952.html


case_title: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372


case_text: After the defences were filed, two issues arose - whether penalty privilege or privilege against self incrimination would ordinarily relieve the directors from any obligation to provide further details of their defence and, secondly, assuming the privileges could be relied upon, whether the directors had waived, in whole or in part, their right to assert either privilege by filing detailed defences. Those applications were heard and determined by Finkelstein J: see ASIC No. 1 (2007) 164 FCR 32 at [1]. In those reasons for decision, Finkelstein J described the content of the defences filed by the directors and the position of MPG in the following terms (at [5]): When going into the detail they did in their respective defences the directors were mindful of penalty privilege. Each of their defences opens with a statement that the director "claims and reserves his right to claim penalty privilege in the proceeding." No such statement was made by MPG for it is accepted that a corporation cannot claim the benefit of penalty privilege (Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96) or self-incrimination privilege (see Environment Protection Authority v Caltex Refining Co Pty Ltd ... [1993] HCA 74 ; (1993) 178 CLR 477). That MPG cannot claim the benefit of either privilege may not be of much assistance to ASIC if it successfully attacks the company's defence. If MPG's defence is defective and it is required to provide further information, it may not be able to satisfy that requirement if the only source of its information is the director defendants and they are entitled to remain silent. (Emphasis added). 11 In January 2008, the defendants sought a stay of the claims made against MPG by ASIC pending the hearing and determination of the claims made against the directors or a stay of the claims made against MPG by ASIC until the Court has made findings of fact in relation to the claims against the directors but before final orders. The application was supported by an affidavit sworn by a Mr Babbage, a non-executive director of MPG. The application was refused: ASIC No. 2 . In considering the application for stay, a number of principles informed that decision: see ASIC No. 2 at [5] to [7]. They included: 1. The privilege against self-incrimination and penalty privilege apply to the directors but not MPG: ASIC No. 1 at [5] and ASIC No. 2 at [7]. 2. A corporate defendant (such as MPG) may be required to provide documents and information which may tend to incriminate its officers: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 116. 3. A corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 4. A natural person cannot complain that a corporate defendant's compliance with an order or requirement to produce documents or information might tend to incriminate him or her: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 5. The relevant enquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. No submission has been made to that effect in this case. 6. A corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty: Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256 ; (2004) 58 ATR 163 at 170. However, a corporate defendant will not breach such a direction if it fails to file a statement or an affidavit from a witness where that witness claims privilege: ACCC v J McPhee & Son (Australia) Pty Ltd (1997) 77 FCR 217 at 220 and ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 at [10] , [12] and [13]. That is to say, compliance is not required " if the only source of the information is the director defendants and they are entitled to remain silent ": ASIC No. 1 at [5] (emphasis added). If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.


case_text: Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2003 Pty Ltd (2009) 79 IPR 437, a Full Court of this Court considered the subject of the taking of an account of profits under the Trade Marks Act . That case is particularly pertinent in that it, too, was decided against the background of what one might term an imperfect evidentiary foundation. To describe the evidence in the present case in relation to the profits as imperfect is, in no way, to voice a criticism of Jemella Australia. It has done the best it can to adduce evidence on that subject and further to secure, by court order, affidavits from those whom one might think know rather more on that subject. The result, nonetheless, is an imperfection in terms of allowing a precise assessment of an account of profits. There are some principles which emerge from Liquideng (2009) 79 IPR 437 which are pertinent. They are these: (a) In determining an account of profits the court must do the best it can on the whole of the material before it. Mere speculation or guesswork is not generally appropriate. Some foundation is needed. Nonetheless, the exercise of taking an account of profits calls for an allowance to be made for a lack of precision where evidence before the court is incomplete, inexact and generalised. (b) A pragmatic approach is the correct approach to take. The court should take into account the evidence before it, at least insofar as it provides indicators, limited though, they may be, as to the proper figure, rather than simply taking an open-ended approach and settling upon gross sales. (c) Where the evidence before the court gives some indications as to an appropriate figure, the proper approach is for the court to proceed and do the best it can, on the basis of what is before the court. Where it's not possible to calculate a figure, the court should give the benefit of the doubt to the holder or authorised user of the registered mark. That is because knowledge of precise costs is in the hands of the infringer. That said, simply to treat gross revenue as profits with an arbitrary discount, where the evidence suggested that there were costs, would be contrary to principle, even allowing for assessment being an inexact science. (d) No allowance should be made in respect of wages incurred by, or on behalf of the infringer. An infringing party ought not be permitted to have the benefit of remuneration or directors fees for carrying on its infringing activities. I approach the taking of the account of profits in this case on these bases. The giving of greater precision as to the precise cost of sale of each unit is a subject uniquely in the hands of those individual respondents involved in the activities of GHD Australia Direct. In those circumstances, it seems to me, consistent with principle as recited by the Full Court in Liquideng (2009) 79 IPR 437, to give the benefit of the doubt to Jemella Australia. It also seems to me that in so doing, a fair approach is to adopt the average submitted as appropriate by Jemella Australia. Jemella Australia accepts, correctly, with respect, that on the taking of an account, allowance must be made for the cost of purchasing the counterfeit irons including, in that regard, the telegraphic transfer fee in respect of purchase costs as evident in the material exhibited to Mr Gubecka's affidavit. Adopting then the average approach, and allowing for purchase costs, it is possible to tabulate an amount of profit per unit in respect of the 175 counterfeit irons. 'Schedule A Calculation of Profits' to Jemella Australia's submissions which provides that tabulation is annexure "A" to the reasons for judgment. That tabulation is cast on the sales at the minimum of $205, the maximum of $240 per unit, and then gives a median sale, or what I have termed an average. The end result of that, if one looks to that average, is a profit of $12,786. It is not possible, in the absence of an explanation from any of the individual respondents, particularly Mr Gubecka, to give any precision at all to how much of the expenses set out in the business activity statements ought properly to be regarded as attributable to the sales of the counterfeit irons. Again, that is a subject uniquely within the province of those behind GHD Australia Direct. I apprehend though, from Liquideng (2009) 79 IPR 437, that I ought, in the face of some indications on the affidavit material before me of additional expenses, at least to make some allowance for those as best I can. Postage and handling is one, but this seems to be incorporated, in any event, into the cost of sales, so I do not propose to make any allowance for that. Another, though, are internet costs. There may well also be some costs associated with the transporting of the counterfeit irons to the post office, although these would seem necessarily to be modest. I make that observation because it seems, on the evidence, that there were bulk dispatches of counterfeit irons, rather than numerous individual trips. There must also have been some cost of storage although, again, how much should be allowed in that regard is moot. I note that Mr Jakin deposes that the business was conducted from the residence of Mr Gubecka and Ms La Porta, who is Mr Gubecka's partner.


case_text: evidence before me proves, in my opinion, that the registered mark, GHD, has become well-known, and associated with hairstyling products of a particular good repute and quality. That being so, remarks made by Windeyer J in Colbeam Palmer Limited v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 are pertinent: All profits made by an infringer by selling goods of that kind under that name may in some cases be said to be attributable to his use of the mark. In cases of that sort the buyer of the goods is taken to have bought them because of the mark under which they were sold. If that mark was for him an inducement, not necessarily the sole inducing cause of his buying the goods, the infringing seller is accountable to the owner of the mark for the profit he made by the sale. Those sentiments apply equally in respect of a claim by an authorised licensee of the registered mark. There is not an exact correspondence as between the affidavits of Mr Gubecka and Mr Jakin as to the number of counterfeit irons imported. Mr Gubecka's evidence is that 175 counterfeit irons were imported. Mr Jakin's evidence is that, to the best of his recollection, in the period of his involvement in the ordering and sale of the counterfeit irons about 160 were purchased. Of the two, Mr Gubecka appears to have had the greater involvement in the activities of GHD Australia Direct. I note that it is to his affidavit that invoices from a Chinese company, Mount Rise Limited, in respect of the sale of the counterfeit irons, are exhibited. Further, on the face of those invoices, the buyer is shown as Mr Gubecka, rather than Mr Jakin.


case_text: Greenwood J was exercising the appellate jurisdiction of the Court. There is no jurisdiction in this Court to entertain a purported appeal in the Court's appellate jurisdiction from a judgment of the type given by Greenwood J: see s 24(1AAA) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the process filed on 29 August 2006 does not engage the Court's appellate jurisdiction and does not otherwise engage the Court's jurisdiction save to the extent that I have jurisdiction to determine whether the Court has jurisdiction. So much was established by Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287. I have jurisdiction to exercise the power to make an order under s 23 of the Act dismissing the process filed on 29 August 2006 as incompetent. A similar conclusion was reached by Spender J in BZAC v Refugee Review Tribunal (2005) FCA 675 which was referred to with approval by Conti J in a Full Court in Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59.