case_text: 13(1) of the Veterans' Entitlements Act 1986 (Cth) (the Act) renders the Commonwealth liable to pay pension to a veteran who is incapacitated by a war-caused injury or a war-caused disease. The circumstances in which an injury or disease is taken to be war-caused are set out in s 9(1) of the Act. So far as relevant to the present case those circumstances are where the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service: s 9(1)(a) or where the injury or disease arose out of or was attributable to any eligible war service (which includes operational service) rendered by the veteran: s 9(1)(b). Whether a veteran is suffering from an injury or disease, and the diagnosis of that injury or disease, is to be determined to the reasonable satisfaction of the decision-maker: s 120(4). Where, as in the present case, a claim relates to operational service, the standard of proof on whether an injury or disease is war-caused is prescribed by s 120(1) and (3). The question posed by s 120(3) is whether "the whole of the material" before the decision-maker raises a reasonable hypothesis connecting the injury or disease with the circumstances of the veteran's service. Section 120(3) is affected by s 120A , which provides that a hypothesis connecting a person's injury or disease with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis. A hypothesis raised by the material will be reasonable only if it is consistent with, or fits the template of, the SoP: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 at 96. At the time of the respondent's decision there was in force SoP Instrument No 58 of 1996 concerning depressive disorder. Clause 3 of the SoP states that there is sound medical-scientific evidence that depressive disorder can be related to relevant service rendered by veterans. Clause 4 states that at least one of the factors set out in clause 5 must be related to any relevant service rendered by the veteran. Clause 5 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a veteran's service. The only factor of present relevance is factor (b): experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. The expression "severe psychosocial stressor" is defined as an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. The Tribunal found that the appellant served in the Royal Australian Navy from 7 July 1968 to 18 June 1971, and that his two trips to Vietnam on HMAS Sydney from 17 November 1969 to 5 December 1969 and from 16 February 1970 to 5 March 1970 were operational service. It was common ground that the appellant had a depressive disorder. The Tribunal described the hypothesis relied on by the appellant as follows: the condition was war caused by the chronic sea sickness experienced during his operational service, with a resulting social isolation and depression at the possibility of being unable to serve at sea. The Tribunal identified the factor relied on as that in clause 5(b) of the SoP.


case_outcome: cited

case_text: Honour also held that the recurrence of the symptoms was: not an aggravation of the condition. A temporary presence of symptoms is not sufficient to show an aggravation within the meaning of the Act. In this connection his Honour relied on the observations of Lindgren J in Repatriation Commission v Yates [1995] FCA 1234 ; (1995) 38 ALD 80 at 88. The appellant's third complaint that the Tribunal erred in law by failing to consider the hypothesis that the appellant's seasickness caused his depression was also dismissed. The Magistrate referred to the Tribunal's finding (recorded at [6] above) that the hypothesis of depression arising from severe seasickness was reasonable under the terms of clause 5(b) of the SoP, and to the first two sentences of the passage quoted at [6], and continued: Thus while it is true, as Mr Cunningham asserts, that paragraph 9 of the Tribunal's reasons for decision rolls three independent hypotheses into one, the extract I have detailed shows that the Tribunal in fact did expressly consider the hypothesis that the seasickness caused the depression simpliciter. His Honour then observed that it was "scarcely surprising" that the Tribunal had to an extent rolled three hypotheses into one, having regard to the way in which the case had been conducted, both in evidence and in submissions. He gave some examples at [66] to [69], and concluded: the issue of the seasickness in the evidence before the Tribunal was intimately interrelated with the concerns of Mr Cunningham right from the inception of his more severe seasickness both that it caused social isolation and/or that it [led] him to be concerned about his future in the Navy. Given that this is so it does not seem to me that the Tribunal can be overly criticised for approaching the matter in the way that it did. The fact that it did so in large part followed the Appellant's evidence and to an extent the submissions made by counsel on his behalf. Thus the finding by the Tribunal that "constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved" was in my view open to the Tribunal on the materials and does not constitute an error of law. His Honour noted that in view of his dismissal of all three complaints, he did not need to deal with the respondent's submission that the appeal was incompetent. This issue is dealt with in the ensuing paragraphs. The appellant commenced his proceeding in this Court. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect of appeals from the Tribunal. Rule 3(2) requires that the notice of appeal state, among other things: (b) the question or questions of law to be raised on the appeal; (c) the order sought, and (d) briefly, but specifically, the grounds relied upon in support of the order sought. The proceeding was transferred to the Federal Magistrates Court pursuant to s 44AA of the AAT Act. Section 44AA(8) confers jurisdiction on the Federal Magistrates Court to hear and determine transferred appeals. Subsection (9) provides that s 44(4), (5) and (6) apply in relation to the hearing and determination of a transferred appeal in a corresponding way to that in which they apply to the hearing and determination of an appeal to this Court. Section 44(4) requires this Court to hear and determine the appeal and make such orders as it thinks appropriate. Subsection (5) empowers the Court to make orders affirming or setting aside the Tribunal's decision and an order remitting the case to be heard and decided again by the Tribunal.


case_text: am not satisfied that the Tribunal's use of the expressions "not attributable to operational service" and "the cause of the seasickness" shows that it properly considered s 196B(14). The subsection is broader than "attributable" in par (b) and "cause" in par (f). Paragraph (a) was potentially applicable. It could be that the appellant's seasickness resulted from an occurrence (rough seas) on the way to Vietnam. The Tribunal did not consider whether the appellant's pre-existing disposition to seasickness was aggravated by his service (par (d)). Nor did it consider whether the seasickness "arose out of" his operational service (par (b)). In Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at [27] , in considering a provision in the same terms as s 169B(14)(b), the Court said the use disjunctively of the expressions "arose out of" and "attributable" manifests an intention to give "defence-caused" a broad meaning. What was there said in relation to the expression "defence-caused injury" is applicable to "injury ... related to service" in s 196B(14). After noting that the Tribunal did not refer to s 196B(14), the Federal Magistrate observed that the "phraseology" in [10] of the Tribunal's reasons was "in some respects unfortunate". Nevertheless his Honour regarded that paragraph as containing "an unintended paraphrase of the requirements of" s 196B(14). I am unable to agree. According to the Macquarie Dictionary a paraphrase is a "restatement of the sense of a text or passage, as for clearness". The Tribunal's use of the words "attributable to" and "the cause" does not capture the sense of the relevant parts of subsection (14), and is not aptly described as a paraphrase. It may well be that the explanation for the Tribunal's failure to refer expressly to s 196B(14) lies in the fact that the appellant's counsel, who did not appear on the present appeal, informed the Tribunal that the respondent's references to s 196B(14) were misplaced, and that the appropriate provision was s 9. That section deals with the circumstances in which an injury is to be taken to be a war-caused injury or disease. It is in some respects similar to s 196B(14). However, the Tribunal did not refer to s 9 either. As I have said, it was common ground on the appeal to this Court that it was necessary for the Tribunal to go through the "related to service" exercise in s 196B(14). It did not do so, and the ground of appeal related to the first amended question of law (namely par 2 of the notice) is made out. The second amended question of law is whether the Tribunal was correct in holding that a pre-existing condition can never give rise to a stressor that is related to service within s 196B. The Tribunal's reasoning on this issue is set out at [6] above. It involved the following steps:


case_outcome: followed

case_text: 53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).


case_outcome: applied

case_text: the event that I might conclude that there had been no compliance with r 3(2)(b), the appellant sought leave to amend the notice of appeal to the Federal Magistrates Court so as to raise the two questions set out at [24]. In Teoh v Minister for Immigration [1994] FCA 1017 ; (1994) 49 FCR 409 the Full Court held that s 28 of the Federal Court of Australia Act and Order 13 r 2(1) enable the Full Court to grant leave to amend a pleading, an application or other originating process. See in particular per Carr J at 428. I see no reason why that would not extend to permitting an amendment to the questions of law in an originating process, in this case the notice of appeal to this Court that, by transfer, was heard by the Magistrate from whom the present appeal comes. See Condell v Commissioner of Taxation [2007] FCAFC 44 at [14] per Gyles J with whom Kenny and Allsop JJ agreed.


case_outcome: considered

case_text: White v Repatriation Commission [2004] FCA 633 ; (2004) 39 AAR 67 Spender J considered the definition of "severe psychosocial stressor" in a SoP which was in similar terms to the definition in the instant SoP. At [30] his Honour said: the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary. After observing that the Tribunal there had determined that the events relied on did not meet the objective requirement, his Honour continued at [32]: In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition ... would be not only irrelevant and devoid of utility, but positively misleading. As appears above, the Tribunal did not expressly address whether the appellant's seasickness was an identifiable occurrence that evokes feelings of substantial distress in an individual. It had before it evidence from Dr Strauss that: Before the Magistrate the respondent submitted that there was no evidence before the Tribunal that seasickness is a severe illness and therefore an occurrence which of its nature is objectively capable of evoking feelings of substantial distress. It said that Dr Strauss' evidence related only to the subjective effect of seasickness on the appellant. His Honour was referred to the observations of Spender J in White [2004] FCA 633 ; 39 AAR 67. The Magistrate did not accept the respondent's submissions on this issue. He considered Dr Strauss' evidence "taken in the round and fairly was to the effect that seasickness is capable of being a severe illness". He noted that Dr Strauss found that the appellant's experiences and their ramifications were a severe psychosocial stress for him, and caused him significant or substantial distress. He referred to the dictionary definition of "severe" disagreeably intense, unpleasantly extreme; (especially of bad weather, illness, injury etc) causing hardship pain or suffering by its degree of extremity. The Magistrate found that Dr Strauss' report evinced or was at least open to the interpretation that "he regarded these matters both objectively and as they affected Mr Cunningham individually". I agree with that reading of Dr Strauss' report. It is true that in his report he spoke of there having been a severe psychosocial stressor "for this man". But in cross examination he gave evidence about seasickness in the abstract, and said: seasickness begins with nausea and travels through to very severe symptoms. But seasickness involves nausea. I think [that] ... can be quite severe and debilitating.


case_outcome: distinguished

case_text: Minister appeared to assume that information was involved but submitted that the information identified in these particulars was not the reason or a part of the reason for affirming the decision to refuse to grant the appellant a protection visa. Of [57] of the Tribunal's reason it was said: 'This is no more than a finding that the information relating to the appellant's visit to India did not satisfy the Tribunal, to the requisite level, that the appellant feared persecution on Convention related grounds. It does not transform the information into the reason or part of the reason for the decision: SCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 per Allsop J at [12]; SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J at [29].' The authorities to which the Minister refers are distinguishable. In both cases the appellant had not attended the hearing before the Tribunal: SZEZI at [5]; SCIA at [5]. In each case the Tribunal proceeded to determine the applications upon the material before it, which included the respective protection visa applications: SZEZI at [7]; SCIA at [6]. In SZEZI Allsop J raised with counsel for the Minister the question of whether there had been a breach of s 424A in the circumstances. His Honour answered that question at [29]: 'On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b) , it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF [(2005) 89 ALD 242] I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.'


case_text: an analysis of the Tribunal's reasoning process it appears that two of the reasons that the Tribunal did not reach the relevant state of satisfaction were: (1) its rejection of the appellant's claim that he had travelled to India to escape persecution; (2) the tendency of the evidence of his return seen in light of the localised nature of the persecution he claimed to have suffered to undermine his claim to have suffered it at all. There were other reasons why the Tribunal was not satisfied that the appellants would be subject to Convention persecution if they returned to Bangladesh. But the question is whether the information was a part, that is any part, of the reasoning process leading up to the Tribunal's failure to reach that requisite state of satisfaction: see SZEEU v Minister for Immigration [2006] FCAFC 2 ; (2006) 150 FCR 214 at [215] [216] per Allsop J; [164] [165] per Weinberg J. As Weinberg J said in that case (at [164]): 'Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision.' Allsop J was dealing with a very different situation in both of those cases. There the Tribunal's questions about the applicants' claims remained unanswered by virtue of their respective failures to attend the hearing. Here the questions were answered. The Tribunal evaluated those answers and, relevantly, rejected them. Moreover, in SZCIA his Honour expressed the view that the reasoning in SZEZI was in conformity with the approach of the Court in SZEEU : at [13] ]14]. I have referred to and applied that approach above.


case_text: appellant misconceives the Tribunal's statement as involving information as distinct from the thought processes of the Tribunal. Information refers to 'knowledge of relevant facts or circumstances communicated to or received by the Tribunal'. It does not encompass the Tribunal's 'subjective appraisals, thought processes or determinations': VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ. The characterisation of the persecutory acts as localised and the corollary to that proposition, namely that they would not be performed when the appellant was not in that location were the Tribunal's thought processes, not information. Section 424A did not apply to them. Moreover, if the relevant information for the purposes of s 424A of the Act is the fact that the daughter's name was one widely used in Bangladesh and had a Koranic origin, this is information falling within the exception in s 424A(3)(a) with the result that the Tribunal was not required to give any particulars in writing in respect of it. If the information is the fact that the use of such a name casts doubt on the claim to a religious conversion, this is simply a conclusion based on the evidence before the Tribunal and therefore is not 'information' within s 424A: VAF at [24] per Finn and Stone JJ. This refers to information that 'the Tribunal doubted the veracity of the appellant's claim that his wife is slowly learning about Christianity because the appellant did not give his daughter a recognisably Christian name'. This is likewise a conclusion based on the evidence before the Tribunal and is not caught by s 424A: VAF at [24] per Finn and Stone JJ. This alleged contravention of s 424A is said to arise from inferences drawn by the Tribunal as to the omission, in statements by fellow Christians who provided written material in support of the appellant's application, of any reference to their suffering persecution themselves. The inference drawn is that it would be possible for the appellant similarly to avoid harm in Bangladesh. The short answer is that neither the Tribunal's observation as to the existence of such an omission, nor the inference drawn from it, is 'information' for the purposes of s 424A. 'Information' in that section does not encompass the Tribunal's subjective thought processes, or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions reached by the Tribunal in weighing up the evidence by reference to those matters: VAF at [24] per Finn and Stone JJ. This ground alleges that the Tribunal constructively failed to exercise jurisdiction by not acting judicially in carrying out its functions under the Act. A number of examples are particularised; most, if not all, were not relied on below before his Honour and, in those cases, it is difficult to comprehend any error on the part of his Honour. Particular (b) alleges that the Tribunal 'selectively used the available independent country information to inappropriately find that the appellant "has given no basis for his belief that he would be mistreated on his return"'. No particulars of this allegation are given. Nevertheless, it is for the Tribunal, as part of its fact-finding function, to determine what weight it will give to the country information before it: NAHI at [11]. In the present case, it was open to the Tribunal to find, as it did, that on the basis of the evidence as to guarantees of freedom of religion in Bangladesh and the tolerant practice of their religion by most Bangladeshi Muslims, it was not satisfied the appellant had experienced the rejection he claimed from his family (which it considered to practice a tolerant form of Islam) or that he would face persecution within the meaning of the Convention if he returned to Bangladesh. Particular (c) alleges there was no evidence for the finding that the appellant would have been able to escape the particular consequences he claimed by remaining in India. However, the Tribunal clearly specifies the evidence it relies on to make this finding: the fact that the particular consequences the appellant claimed in the case of his own conversion arose from family and community ostracism and disadvantage in employment. It is clear that the complaint of disadvantage in employment, like the claims of ostracism, related to the treatment the appellant received, or would receive, from those who knew him, namely, his work colleagues. As such, it was plainly open to the Tribunal to find that by remaining in a place away from his family and community, and work colleagues, the appellant would not face the ostracism and disadvantage he claimed. Particular (d) alleges that it was irrational to find that the appellant's conversion was unlikely to attract the opposition referred to in the country information, notwithstanding that the conversion was a fact known to those who knew him. However, as indicated in respect of particular (b) above, this was a finding open to the Tribunal on the basis of the country information before it. Particular (e) alleges there was no proper basis for the finding that the appellant would be able to obtain effective assistance from the authorities against extra-legal treatment under Sharia law. The finding was explicitly based on country information as to the Bangladeshi government's commitment to maintaining a secular Bangladesh and, in those circumstances, there is no substance in the argument that the finding was made without proper basis. Particular (f) appears to make some complaint based on country information to the effect that (i) police were ineffective in upholding law and order and (ii) there were objections and resistance to conversions from Islam to other religions. The nature of the complaint is not particularised. It suffices to say, as noted in respect of particular (a) above, that it was for the Tribunal to give what weight it deemed appropriate to the country information before it.


case_text: Minister appeared to assume that information was involved but submitted that the information identified in these particulars was not the reason or a part of the reason for affirming the decision to refuse to grant the appellant a protection visa. Of [57] of the Tribunal's reason it was said: 'This is no more than a finding that the information relating to the appellant's visit to India did not satisfy the Tribunal, to the requisite level, that the appellant feared persecution on Convention related grounds. It does not transform the information into the reason or part of the reason for the decision: SCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 per Allsop J at [12]; SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J at [29].' The authorities to which the Minister refers are distinguishable. In both cases the appellant had not attended the hearing before the Tribunal: SZEZI at [5]; SCIA at [5]. In each case the Tribunal proceeded to determine the applications upon the material before it, which included the respective protection visa applications: SZEZI at [7]; SCIA at [6]. In SZEZI Allsop J raised with counsel for the Minister the question of whether there had been a breach of s 424A in the circumstances. His Honour answered that question at [29]: 'On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b) , it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF [(2005) 89 ALD 242] I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.' His Honour then applied the comments he had made in SZEZI . Allsop J was dealing with a very different situation in both of those cases. There the Tribunal's questions about the applicants' claims remained unanswered by virtue of their respective failures to attend the hearing. Here the questions were answered. The Tribunal evaluated those answers and, relevantly, rejected them. Moreover, in SZCIA his Honour expressed the view that the reasoning in SZEZI was in conformity with the approach of the Court in SZEEU : at [13] ]14]. I have referred to and applied that approach above. The suggestion that SZCIA and SZEZI mandate a different approach cannot be sustained and the Minister's submission should be rejected. This particular refers to information that 'because the appellant's daughter's name is "widely used in Bangladesh ... and appears to have Koranic origin" the appellant will unlikely experience difficulties upon refoulment'. This particular mischaracterises the context in which the Tribunal referred to the daughter's name. It is apparent that the point made, was not that by reason of the child's name, the appellant was unlikely to experience difficulties upon refoulment; it was that the failure to choose a Christian name cast doubt on the claim to have converted to Christianity.


case_outcome: affirmed

case_title: SZJFL v Minister for Immigration and Citizenship [2007] FMCA 421

case_text: This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal which had affirmed a decision of a delegate of the Minister to refuse the grant of a protection visa. Details of the appellant's application, the decision of the Tribunal, and the reasons of the Federal Magistrate are contained in the decision of the Federal Magistrate , SZJFL v Minister for Immigration [2007] FMCA 421 , which is available on the internet. 2 The appellant is a 43 year old female citizen of the People's Republic of China. Her claim for a protection visa was based on what was said to be a well founded fear of persecution as a member of the Falun Gong. 3 The Tribunal asked her a number of questions probing her account of involvement with Falun Gong and her travels to and from China. After the hearing and before making its decision the Tribunal wrote to the appellant in accordance with s 424A of the Migration Act 1958 (Cth). In its letter the Tribunal outlined inconsistencies between the original protection visa application and the evidence provided at the hearing. There was no response from the appellant.


case_outcome: referred to

case_text: I should add that some of the submissions advanced on behalf of the applicant and some of the alleged questions of law would have been more appropriate in a general judicial review application than in an appeal on a question of law. I have remarked in other cases that this situation is unsatisfactory and unnecessary (eg Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 at 45 46). I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 22 March 2007 Counsel for the Applicant: Dr K Sant Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: Ms L Walker Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 and 27 October 2006 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/404.html


case_title: Luu v Renevier (1989) 91 ALR 39

case_text: The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170; Luu v Renevier (1989) 91 ALR 39 at 49 50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.


case_title: McDonald v Director-General of Social Security (1984) 1 FCR 354


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_text: Furthermore it is accepted by this Court that the doctrine of procedural fairness is applicable to decisions made by the Superannuation Complaints Tribunal (cf Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 and Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281). So, for example, in Employers First Branson J said at [69]: The obligation on the Tribunal to afford procedural fairness to the parties to a review means that it may not make a determination adverse to the interests of a party to that review without giving that party a reasonable opportunity to make written submissions to the Tribunal on the approach that the Tribunal is contemplating.


case_text: Appeals from the Tribunal to the Federal Court can only be on questions of law, and the authorities have conflicted as to whether denial of procedural fairness raises a question of law within the ambit of s 46 of the Act . This question has now been settled by the Full Court in Clements v Independent Advisory Committee [2003] FCAFC 143 at [8] where Gray ACJ and North J said: this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. 17 If the applicant establishes the Tribunal denied the applicant procedural fairness in making its determination, notwithstanding discretionary decisions to the grant of relief, the denial of procedural fairness will be sufficient to raise a question of law.


case_title: Cole v Cunningham (1983) 49 ALR 123

case_text: The submissions of the applicant may be summarised as follows: • There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person's rights, status, interests or legitimate expectations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act . • The applicant must be given an opportunity to address issues that are troubling the Tribunal ( Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows: o In a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act . Paragraph 3 of the letter stated: The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction. o In his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case. o In its letter to the applicant of 15 February 2007 the Tribunal stated at para 2: I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint. o No issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing. o Following the Tribunal's letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal's determination and reasons on 7 December 2007. • The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question. • Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief ( Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because: o the Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts); o there is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant's case before the Tribunal, making it "possible" the end result might not be the same at a further hearing ( Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540).


case_text: A party may appeal to the Federal Court, on a question of law, from a determination of the Tribunal: s 46 of the Act . Such proceedings come before the Court for hearing and determination in the exercise of its original, rather than appellate, jurisdiction: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. 3 The applicant, through its Further Amended Application for an Order of Review, seeks the following orders: 1. The decision of the first respondent be set aside. 2. The Complaint be referred to the Tribunal for hearing and determination according to law. 3. The respondents pay the applicant's costs on and incidental to this application. 4 The background facts to this matter can be found in the Tribunal's "Review Determination and Reasons" (the Determination and Reasons) and the applicant's Chronology of Events. They may be summarised as follows: • in May 1994 the applicant was employed by Penrith City Council (employer) as a labourer and became a member of the First State Superannuation Scheme (the former fund); • in January 1995 the applicant was injured at work; • in early 1996 the applicant returned to work on light duties; • in July 1996 the applicant injured his back at work; • in October 1996 the applicant received a letter from his employer stating that his employment would be terminated on 1 November 1996 due to a lack of medical evidence as to when he could return to his pre-injury employment; • in early 1997 the applicant purportedly telephoned an officer of the former fund enquiring about payment of benefit application; • on 1 July 1997 liability for the applicant was transferred from the former fund to the second respondent; • in late 1999 the applicant settled a workers' compensation claim; • on 6 November 2003 the applicant applied to the former fund for payment of a benefit on the basis that he was permanently incapacitated. The application was accompanied by two incapacity certificates by medical practitioners; • on 18 November 2003 the applicant's payment of his account balance was approved by the former fund on the basis the applicant was totally and permanently incapacitated. The balance was paid on 21 November 2003; • on 20 January 2005 the applicant was informed by the former fund that the second respondent should be contacted regarding total and permanent disability insurance; • in February 2005 the applicant received and completed a statement of claim from the second respondent; • in April 2005 the second respondent drew the applicant's attention to time limits in making a claim and invited him to provide the second respondent with information why the statement of claim was outside the proscribed time. The applicant provided information; • in July 2005 the applicant completed a statement of claim; • on 1 May 2006 the applicant was informed by the second respondent that his application for benefit was refused; • on 10 December 2006 the applicant lodged a complaint with the first respondent; • on 15 February 2007 the first respondent wrote to the applicant stating that it had "established its jurisdiction to deal with your complaint"; • in its determination and reasons handed down on 7 December 2007 the Tribunal found that it did not have jurisdiction to deal with the applicant's complaint because the complaint was out of time; • the applicant appealed the Tribunal's decision by application to the Federal Court filed on 7 January 2008.


case_title: Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356


case_text: The submissions of the applicant may be summarised as follows: • There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person's rights, status, interests or legitimate expectations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act . • The applicant must be given an opportunity to address issues that are troubling the Tribunal ( Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows: o In a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act . Paragraph 3 of the letter stated: The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction. o In his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case. o In its letter to the applicant of 15 February 2007 the Tribunal stated at para 2: I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint. o No issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing. o Following the Tribunal's letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal's determination and reasons on 7 December 2007. • The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question. • Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief ( Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because: o the Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts); o there is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant's case before the Tribunal, making it "possible" the end result might not be the same at a further hearing ( Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540). 18 The classic articulation of the principle of procedural fairness is that of Mason J in Kio where at 582 his Honour said: It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [82]; Salemi [No 2] [83]; Ratu [84]; Heatley v Tasmanian Racing and Gaming Commission [85]; FAI Insurances Ltd v Winneke [86]; Annamunthodo v Oilfields Workers' Trade Union [87].


case_text: The submissions of the applicant may be summarised as follows: • There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person's rights, status, interests or legitimate expectations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act . • The applicant must be given an opportunity to address issues that are troubling the Tribunal ( Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows: o In a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act . Paragraph 3 of the letter stated: The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction. o In his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case. o In its letter to the applicant of 15 February 2007 the Tribunal stated at para 2: I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint. o No issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing. o Following the Tribunal's letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal's determination and reasons on 7 December 2007. • The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question. • Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief ( Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because: o the Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts); o there is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant's case before the Tribunal, making it "possible" the end result might not be the same at a further hearing ( Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540). 24 Mr Scott-McKenzie conceded that the Court has a discretion to refuse to grant relief where the end result of granting the relief would be the same as the original decision of the Tribunal. In this case however I do not consider it to be a foregone conclusion that the Tribunal would be bound in law to make the same decision as that appealed from to this Court ( Nguyen v Minister for Immigration Affairs (1998) 88 FCR 206 at 213-214). At a reconstituted Tribunal hearing the applicant would have an opportunity to make submissions to the Tribunal in relation to the timing of the filing of his claim with the Trustee. Further, I accept the submission of Mr Scott-McKenzie that there is additional medical evidence available to the Tribunal which, if accepted, could result in a decision favourable to the applicant. Of course whether the second respondent made a decision that was fair and reasonable within the meaning of the Act is a question for the Tribunal to decide upon the factual evidence before it, not a decision for this Court. However in my view the applicant's case before the Tribunal is not so hopeless that remitting this matter to the Tribunal could not possibly result in a different outcome. 25 I have found that the Tribunal has failed in its obligation of procedural fairness to the applicant by not allowing him a reasonable opportunity to make submissions as to the Tribunal's jurisdiction. Denial of procedural fairness is a question of law pursuant to s 46 of the Act . Accordingly I find that the ground of appeal raised by the applicant is substantiated, and the application should be granted. 26 The second respondent submitted to any orders of the Court, other than with respect to costs. In this case, however, it is clear that the respondents have been properly served throughout these proceedings, and were aware of the hearing before me. As a general proposition, costs follow the event, and no reasons have been put to me to diverge from the general approach to costs in the circumstances of this case. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 14 October 2008 Counsel for the Applicant: Mr HA Scott-Mackenzie RFD (Pro Bono) Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 26 September 2008 Date of Judgment: 15 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1528.html


case_title: Santa Sabina College v Minister for Education (1985) 58 ALR 527


case_text: His Honour's decision was made before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. which held that decisions under the Migration Act were amenable to judicial review for jurisdictional error. An appeal from his Honour's decision to the Full Court was allowed on 20 May 2003 NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94. The decision of the High Court in Plaintiff S157/2002 had been delivered between the time at which Wilcox J delivered his judgment and the time at which the Full Court delivered its judgment.


case_title: NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94


case_text: In any event, s 422B of the Act applies. The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [22] to [31]. His Honour's reasons were adopted and his conclusion upheld in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [85] .


case_text: French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].


case_text: Federal Magistrate McInnis dismissed the amended application ( MZXFN v Minister for Immigration & Multicultural Affairs [2006] FMCA 1274). Although his Honour did not state expressly in his reasons whether that dismissal was pursuant to r 44.12(1)(a) or (c) of the Federal Magistrates Court Rules 2001 (Cth), the parties have proceeded on the basis of a right of appeal from a final decision. On my reading of his Honour's decision, I am satisfied that it is appropriate to proceed on that basis. His Honour found that the appellant had not been denied procedural fairness (at [32] [36]) and that s 422B of the Act precluded the application of any common law principles of procedural fairness (at [40]). His Honour observed, in relation to the newspaper articles (at [32]): ' In my view, a proper reading of the Tribunal's decision indicates that it did no more than consider the material and draw a conclusion that the material either did not support [the appellant's] claims or that the articles otherwise provide corroborative material for [the appellant] sufficient to encourage the Tribunal to find [the appellant] was a witness of credit. Having found difficulties with [the appellant's] credibility, the Tribunal was entitled to consider the material offered by [the appellant] as a means of corroboration, and to then reject those items without necessarily proceeding to make a specific and express finding that the newspaper articles were forgeries. ' His Honour held that in the absence of other corroborative evidence, it was open to the Tribunal to make the findings that it did on the documents given to the Tribunal by the appellant (at [34]). His Honour did not consider it to be surprising that the Tribunal did not place significant weight upon the medical reports (at [35]). 8 His Honour said that the Tribunal had simply proceeded to make an adverse credibility finding against the appellant. It considered the material provided by the appellant, which in part was sought to provide what might be described as corroboration but found that that material did not assist or support the appellant's claim (at [36]). His Honour noted that the Tribunal had not found that the newspaper articles or the medical reports could properly be described as forgeries or fraudulent. 9 The appellant appears in person assisted by an interpreter. He relies on the same grounds that were before the Federal Magistrate and submits that the Tribunal ' sort of ignored ' the medical reports and the newspaper articles. Further particulars are not given. 10 The Minister submits that the appeal must fail for two fundamental reasons. The first is that there has been no denial of procedural fairness and the second is that, even if there had been such a denial, s 422B of the Act applies. That section relevantly provides that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. 11 Section 424A(1) of the Act in Div 4 has no application, as the documents in question were given to the Tribunal by the appellant for the purposes of the review application (s 424A(3)(b)). Indeed, the appellant does not raise any ground of appeal in this regard.


case_title: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195


case_title: SZAJL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217


case_title: SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62


case_text: A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not ( WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following). In WAJR , French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question. His Honour noted that two Full Court decisions, WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry. 14 The Full Court observed in WACO that, where a finding does not turn upon the credibility of the applicant and there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it would be inherently unfair for a decision maker to conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it (at [54]). In WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, there was no finding by the Tribunal that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.


case_title: WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597


case_text: A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not ( WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following). In WAJR , French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question. His Honour noted that two Full Court decisions, WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry. 15 French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].


case_title: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562


case_text: leave to discontinue is sought, the Court normally will grant leave provided no injustice will be caused to the respondent/defendant: Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879. As I earlier noted, Coopers does not oppose the grant of leave. It simply contests ACN's claim that no order be made as to costs.


case_text: basis of ACN's no costs contention is that, in commencing the proceeding, it has acted reasonably and that its conduct has continued to be reasonable until the further prosecution of the litigation became futile. That futility, it is said, is evidenced by the amendments to Coopers' articles removing Lion Nathan's pre-emptive and exemption rights. In support of this, counsel relies on the observations of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 143 ALR 1 to the effect that where further prosecution of proceedings becomes futile, the questions for the court are (i) whether one side or the other was almost certain to succeed or (ii) whether there had been some unreasonableness in the behaviour of one of the parties. In contrast, Coopers contends that the facts demonstrate that ACN went into the litigation with knowledge of the real risk that the amendment to the articles would take place should the EGM proceed. As such, the plaintiff cannot now rely on the realisation of that risk (which has had the effect of ending the litigation) to avoid a costs order. Order 22 of the Federal Court Rules , insofar as presently relevant, provides: " 2 Discontinuance -- Form 29 (1) Subject to subrules 2 and 3 a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with Form 29: (a) at any time before the directions hearing appointed in the application -- without the leave of the Court or the consent of any other party; (b) where after the directions hearing the proceeding continues on pleadings but the pleadings are not closed -- without the leave of the Court or the consent of any other party; (c) where judgment has not been entered -- with the consent of all the parties; and (d) at any time -- with the leave of the Court. ... 3 Costs (1) A party who discontinues pursuant to paragraph 2 (1) (a) or (b) shall be liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding. (2) A party who discontinues under paragraph 2 (1) (c) is liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding, unless the terms of the consent provide otherwise." (iii) The reasons for, and circumstances of, a discontinuance can be so various that there are some number of factors which can be of (varying) utility in informing the Court's discretion. These include the following: (a) While it is not the function of the Court to make a prediction as to the outcome of the litigation concerned, the Court may nonetheless in particular circumstances feel confident that, although both parties have acted reasonably, "one party was almost certain to have succeeded if the matter had been fully tried": Ex parte Lai Qin , at 3; (b) If one party has acted unreasonably in occasioning the need for the litigation or for the incurring of expense in it, that can entitle the other party to costs. (c) As McHugh J observed in Ex parte Lai Qin at 3-4: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (d) A common species of futility is where a change in "objective": O'Neill v Mann at [13]; or "extrinsic": Smith at [48] circumstances renders the further prosecution of a proceeding futile.


case_text: is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following. (ii) While the underlying policy in the Rules is that the discontinuing party should be liable for the other parties' costs unless the Court otherwise orders, this has not hardened into a "usual rule" where leave is granted such as is the case where there has been a determination of a claim on its merits: as to the latter see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. As Stone J observed in Smith , at [44]: "Where a claim for relief is discontinued the respondent to that claim is thereby deprived of an opportunity to vindicate its position despite, generally, having incurred costs in preparing to do so. Although the reasons for discontinuance may vary considerably, it is likely to be in the interests of justice that in those circumstances the respondent to the claim should have those costs met by the discontinuing party." (iii) The reasons for, and circumstances of, a discontinuance can be so various that there are some number of factors which can be of (varying) utility in informing the Court's discretion. These include the following: (a) While it is not the function of the Court to make a prediction as to the outcome of the litigation concerned, the Court may nonetheless in particular circumstances feel confident that, although both parties have acted reasonably, "one party was almost certain to have succeeded if the matter had been fully tried": Ex parte Lai Qin , at 3; (b) If one party has acted unreasonably in occasioning the need for the litigation or for the incurring of expense in it, that can entitle the other party to costs. (c) As McHugh J observed in Ex parte Lai Qin at 3-4: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (d) A common species of futility is where a change in "objective": O'Neill v Mann at [13]; or "extrinsic": Smith at [48] circumstances renders the further prosecution of a proceeding futile.


case_text: is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following.


case_title: O'Neill v Mann [2000] FCA 1680

case_text: is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following. (iii) The reasons for, and circumstances of, a discontinuance can be so various that there are some number of factors which can be of (varying) utility in informing the Court's discretion. These include the following: (a) While it is not the function of the Court to make a prediction as to the outcome of the litigation concerned, the Court may nonetheless in particular circumstances feel confident that, although both parties have acted reasonably, "one party was almost certain to have succeeded if the matter had been fully tried": Ex parte Lai Qin , at 3; (b) If one party has acted unreasonably in occasioning the need for the litigation or for the incurring of expense in it, that can entitle the other party to costs. (c) As McHugh J observed in Ex parte Lai Qin at 3-4: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (d) A common species of futility is where a change in "objective": O'Neill v Mann at [13]; or "extrinsic": Smith at [48] circumstances renders the further prosecution of a proceeding futile.


case_text: While the underlying policy in the Rules is that the discontinuing party should be liable for the other parties' costs unless the Court otherwise orders, this has not hardened into a "usual rule" where leave is granted such as is the case where there has been a determination of a claim on its merits: as to the latter see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. As Stone J observed in Smith , at [44]: "Where a claim for relief is discontinued the respondent to that claim is thereby deprived of an opportunity to vindicate its position despite, generally, having incurred costs in preparing to do so. Although the reasons for discontinuance may vary considerably, it is likely to be in the interests of justice that in those circumstances the respondent to the claim should have those costs met by the discontinuing party."


case_text: It is to be observed that s 43 gives the Court a wide and unstructured discretion. The decision in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 (' Latoudis ') involved the consideration of such a discretion in relation to prosecution for a summary criminal offence where the defendant had succeeded. The majority stressed the compensatory nature of a costs order and the inadequacy, in the criminal law context, of the fact that the charge was laid in the public interest or that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant of a costs order: per Mason CJ at 544, Toohey J at 563 and McHugh J at 569. Instead, the rule was adopted that in summary criminal matters the successful defendant should be entitled to costs unless there was something in the defendant's own conduct disentitling him or her to costs: per Mason CJ at 544, Toohey J at 565 and McHugh J at 569-570. 7 That approach appears powerfully persuasive to me, and at least provides some principled basis for the exercise of my discretion. It is the approach that I intend to follow. I do not overlook that these are very serious matters which would be prosecuted on indictment both in New Zealand and Australia. However, the proceedings themselves are auxiliary to intended proceedings on indictment rather than such proceedings themselves, and it seems to me that Latoudis provides the nearest and best guidance that is to be found. 8 I should add that various State legislatures have moved to restrict the benefits to successful defendants which Latoudis would have warranted by structuring and restricting the discretions available to the courts to order costs to successful defendants in criminal cases, and of course, the availability of costs in indictable cases has always been even more restricted. 9 Accordingly, the first respondent is to pay the applicants' costs of the proceedings in this Court. 10 I might add that any dissatisfaction with the outcome may provide another reason for the legislature to re-examine the Extradition Act 1988 (Cth) as I urge in the principal judgment. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 May 2006 Solicitor for the Applicants: Greg Walsh & Co Counsel for the Respondent: Mr I Bourke SC Solicitor for the Respondent: Director of Public Prosecutions (Cth) Date of Hearing: 1 May 2006 Date of Judgment: 1 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/603.html


case_title: Moloney v New Zealand [2006] FCA 438

case_text: On the other hand, the Extradition Act 1988 (Cth), as explained at length in the reasons for my judgment (see Moloney v New Zealand [2006] FCA 438) , sets its face against any consideration of the underlying merits of the criminal proceedings which the New Zealand prosecuting authorities have sought to bring against the applicants. Apart, therefore, from any time- or costs-wasting events that they may have perpetrated, and none is suggested, there is no conduct of the applicants which can fairly be regarded as disentitlement to an order for costs where such an order is otherwise appropriate. 4 The authorities differ as to the nature of proceedings such as these but, in my opinion, whatever their precise juridical nature, the essence of the matter is that the attempt to extradite the applicants, and all subsequent proceedings instituted by the applicants, arise out of an attempt by a responsible government, statutorily regarded as such in Australia, to invoke ordinary criminal processes to vindicate a number of very serious allegations of criminal misconduct. 5 In these circumstances it seems appropriate to me to accord to the New Zealand Government such respect and lack of impediment to enforcing its criminal laws as would be appropriate, in the case of the Australian government, were it subject to a provision such as s 43 of the Federal Court of Australia Act 1976 (Cth), in relation to criminal proceedings brought by it or its proper manifestation, the Commonwealth Director of Public Prosecutions.


case_text: Malibu Boats West Inc v Catanese (2000) 51 IPR 134 it was said by Finkelstein J, at [25]: ... Proprietorship can arise in one of two ways. In the case of a mark that has never been used, the proprietor is the person who is the "author" of the mark and who has applied for its registration with the intention of using the mark: Re Hudson's Trade Marks (1986) 32 Ch D 311 at 319; Seven-Up Co v OT Ltd [1947] HCA 59 ; (1947) 75 CLR 203 ; [1947] ALR 436 ( Seven-up Co); Shell Co of Australia Ltd v Rohm & Haas Co [1948] HCA 27 ; (1949) 78 CLR 601 at 626 [1948] HCA 27 ; ; [1949] ALR 661 ; 1A IPR 438 ( Shell Co of Australia ). Authorship in this context is not confined to the person who originated the mark. A person may be the author even if he has copied a foreign mark; he or she need only be the first person to have applied the mark in Australia: Aston v Harlee Manufacturing co [1960] HCA 47 ; (1960) 103 CLR 391 at 400 [1960] HCA 47 ; ; [1960] ALR 605 citing Re Registered Trade Mark "Yanx"; Ex parte Amalgamated Tobacco Corp Ltd [1951] HCA 28 ; (1951) 82 CLR 199 at 202 ( Re Registered Trade Mark "Yanx"). A person is also the proprietor of a mark if, at the time of application for registration, he or she is entitled to the exclusive use of that mark under the common law: Shell Co of Australia at 625, 627. At common law that is the person who first used the mark. For Danley, it was submitted that: It cannot affect the Applicant's proprietorship of the trade mark in Australia, by authorship or by first use, that the trade mark belongs to one of the Respondents in foreign countries. Indeed, it is clear that the owner of a trade mark in Australia "... may be the "author" of a trade mark, although he has deliberately copied or adapted a mark registered in a foreign country in respect of the same description of goods. [ Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391 at 400]. It was accepted that: It would be otherwise if the foreign owner (one of the Respondents or a company associated with them) had previously used the mark in Australia. In Aston it was said by Fullagar J, at 400: Again, it is otherwise if the opponent or person aggrieved has used the mark, for prior user by the foreign proprietor negatives the claim of the Australian applicant to "authorship". But the user must be user in Australia: the most extensive user by another person in foreign countries will not avail by itself to defeat an applicant for registration in this country. It has been said, however, that the Courts frown on these borrowings from abroad, and very slight evidence of user in Australia has been held sufficient to protect the proprietor of a foreign trade mark: The Seven Up Co v O.T. Ltd [1947] HCA 59 ; [(1947) 75 CLR 203 at 211]... But, where there has clearly been no user at all in Australia, an applicant for a trade mark identical with a mark registered in a foreign country is entitled to be regarded, so far as Australia is concerned, as the "author" of the mark. I can see no reason why that should not be so. (See also the case of Thai Gypsum Products Co Ltd v Waring and Gillow Pty Ltd (1994) 29 IPR 99). It was submitted that the respondents used the Trade Mark "Pecaform" in 33 countries, and they have used "Pecaform" and "Pecafil" in 66 countries. That conduct is irrelevant to the question of first use of the Trade Mark in Australia, as the observations from Aston set out above indicate. The question of first use in Australia being by Danley is challenged by the respondents. It was said, first of all, that a Mr O'Grady of Smorgon said: Smorgon was the first company to bring Pecaform product into Australia from Germany before Danley, sometime in the late 1980s. This hearsay evidence, says Danley, is not borne out by the facts which show that there was a single order by Smorgon on 10 August 1989, and a shipment to Smorgon of "Pecafil" product.


case_title: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199

case_text: Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 makes plain that where interlocutory relief is sought it is necessary to identify the legal or equitable rights which are to be determined at the trial, and in respect of which final relief is sought. In the principal proceedings, the applicant claims: A declaration that the threats of legal proceedings for trade mark infringement made by the Respondents to the Applicant are groundless within the meaning of section 129 of the Trade Marks Act 1995 . An order that the Respondents be permanently restrained, whether by themselves, their directors, officers, employees, servants, agents or otherwise from continuing to make threats of trade mark infringement, by any means including, but not limited to, verbal statements, letters, e-mails or otherwise to the Applicant or any other person. Further in respect of the matters referred to at paragraphs 1 and 2 herein, damages. An order pursuant to section 88 of the Trade Marks Act 1995 that the register of trade marks be rectified by the cancellation or removal of trade mark 1161336. A declaration that the conduct of the First and Second Respondent, whether by themselves, their servants, employees, agents or otherwise in manufacturing, importing, advertising, offering for sale, distributing, or selling building materials used in concrete construction within Australia which bear the sign Pecaform ("the Infringing Products") constitutes conduct which: (a) is misleading and deceptive or likely to mislead and deceive in contravention of section 52 of the Trade Practices Act 1974 ("TPA"); and (b) is a contravention of section 53(c) and (d) of the TPA. A declaration that the conduct of the Respondents, whether by themselves, their directors, officers, employees, servants, agents or otherwise of manufacturing, importing, advertising, offering for sale, distributing, supplying or selling the infringing products within Australia constitutes passing off by the First Respondent of its business and products as being business and/or products of, or related to, or licensed by, or having authorisation of or a connection with, the Applicant. An order restraining the Respondents and each of them, their directors, officers, employees, servants agents or otherwise from manufacturing, distributing, promoting, offering for sale or selling in Australia or causing or permitting (directly or indirectly) to be manufactured, distributed, promoted, offered for sale or sold in Australia the Infringing Products. Further in respect of the matters referred to at paragraphs 5, 6 and 7 herein, damages under section 82 of the TPA. Further in respect of the matters referred to at paragraphs 5, 6, 7 and 8 herein, further or other orders under section 87 of the TPA. Further in respect of the matters referred to at paragraphs 5, 6, 7, 8 and 9 herein, damages for passing off. Further and/or in the alternative to the relief sought in the preceding paragraph, at the option of the Applicant, an account of the profits made by the Respondents and each of them by the said passing off and payment of the amount found to be due on the taking of such account. Delivery up on oath to the Applicant or its duly authorised agent for destruction under supervision of all goods, catalogues, price lists, brochures and other documents and materials, including materials which are or which are capable of being stored, generated or transmitted by an electronic media in the possession, power, custody, or control of the Respondents, bearing the sign Pecaform. Pursuant to section 80 of the TPA an injunction restraining the Respondents by themselves, their directors, officers, employees, servants, agents or otherwise howsoever from contravening section 52 of the TPA by the publication of misleading and deceptive documents and representations, such representations being to the effect that the Applicant is not able and or entitled to sell in Australia and New Zealand products under the name "Pecaform" or that the Applicant is not able to sell or supply to the market in Australia or New Zealand products that the Applicant has been selling and supplying to the market in Australia and New Zealand under the name Pecaform. Damages payable by the Respondents for loss and damage incurred by the Applicant as a result of the Respondents' contravention of section 52 of the TPA as referred to in the preceding paragraph herein. In the alternative to the relief sought in the preceding paragraph herein, at the option of the Applicant, an account of the profits made by the Respondents and or each of them by reason of the wrongful conduct of the Respondents by reason of their wrongful conduct. All such accounts/enquiries as to damages and profit in respect of the contravention of section 52 of the TPA and discovery in aid thereof as may be necessary. 17 Interest pursuant to Section 51A of the Federal Court Act 1976 (Cth). 18 Costs. Such further or other orders, directions and relief as may be necessary or as this Honourable Court deems fit. Orders 1 to 3 concern the making of threats of legal proceedings for Trade Mark infringement. Order 4 seeks cancellation of Trade Mark No 1161336. Order 5 alleges breach of the Trade Practices Act and order 6 alleges passing off, in respect of conduct by the respondents in manufacturing, importing, advertising, offering for sale, distributing, supplying or selling Pecaform products.


case_text: principal authority is the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 ( O'Neill ). In that case, Gummow and Hayne JJ held (Gleeson CJ and Crennan J agreeing) that (at [65]): The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [1968] HCA 1 ; [(1968) 118 CLR 618 at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.


case_outcome: discussed

case_text: respondents also referred the Court to comments made by Stone J (prior to the High Court's decision above) in Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325. In that case, her Honour stated, at [17]: This court has power to grant interlocutory relief pursuant s 23 of the Federal Court of Australia Act 1976 (Cth). The relevant principles governing the exercise of the court's discretion to grant interlocutory relief are well established. In order to secure the relief it seeks Roche must demonstrate: (1) that there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it would be entitled to relief; (2) that it will suffer irreparable harm for which damages will not be adequate compensation, unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. The second and third points referred to by Stone J are interrelated. Where damages can be adequate compensation, the balance of convenience will almost certainly be in favour of not granting relief; where, in the absence of an injunction, the harm will be irreparable, then the balance of convenience almost certainly favours the grant of interlocutory relief. Both of the respondents are related companies within the "Max Frank Group". The first respondent, Max Frank Pte Ltd, is the majority shareholder of the second respondent, Peca Verbundtechnik GmbH, which was established in Germany in 1981. The second respondent, in 1982, registered the marks "Pecaform" and "Peca" in Germany. Mr Christopher Baron, a director of the first respondent, deposes that the mark "Pecaform" was registered as a Trade Mark in various European countries in the mid to late 1980s and early 1990s. The steel mesh construction product that was labelled "Pecaform" has also been marketed and sold under the Trade Mark "Pecafil" in various countries. Although Pecaform and Pecafil are marked differently, they are in fact identical products.


case_title: Malibu Boats West Inc v Cantanese (2000) 51 IPR 134

case_text: Malibu Boats West Inc v Catanese (2000) 51 IPR 134 it was said by Finkelstein J, at [25]: ... Proprietorship can arise in one of two ways. In the case of a mark that has never been used, the proprietor is the person who is the "author" of the mark and who has applied for its registration with the intention of using the mark: Re Hudson's Trade Marks (1986) 32 Ch D 311 at 319; Seven-Up Co v OT Ltd [1947] HCA 59 ; (1947) 75 CLR 203 ; [1947] ALR 436 ( Seven-up Co); Shell Co of Australia Ltd v Rohm & Haas Co [1948] HCA 27 ; (1949) 78 CLR 601 at 626 [1948] HCA 27 ; ; [1949] ALR 661 ; 1A IPR 438 ( Shell Co of Australia ). Authorship in this context is not confined to the person who originated the mark. A person may be the author even if he has copied a foreign mark; he or she need only be the first person to have applied the mark in Australia: Aston v Harlee Manufacturing co [1960] HCA 47 ; (1960) 103 CLR 391 at 400 [1960] HCA 47 ; ; [1960] ALR 605 citing Re Registered Trade Mark "Yanx"; Ex parte Amalgamated Tobacco Corp Ltd [1951] HCA 28 ; (1951) 82 CLR 199 at 202 ( Re Registered Trade Mark "Yanx"). A person is also the proprietor of a mark if, at the time of application for registration, he or she is entitled to the exclusive use of that mark under the common law: Shell Co of Australia at 625, 627. At common law that is the person who first used the mark.


case_text: Uninstructed by authority, I would have assumed that where one of two liquidators ceases to hold office, the other succeeds to the office. Barrett J may have thought similarly: see Vouris at [12]. However, his Honour considered that there was a contrary indication in McPherson's Law of Company Liquidation (4 th ed, LBC Information Services, 1999) of which Professor Andrew Keay is the author. Footnote 237 at p 297 of that notable work states that where one of two joint liquidators dies, the appropriate course is for the Court to appoint another liquidator to act jointly with the survivor, or, in the alternative, to remove the survivor and reappoint him or her as sole liquidator. The learned author cites in support a decision of Sir Samuel Griffith, then Chief Justice of the Supreme Court of Queensland, in Re Aplin, Brown & Co Ltd [1902] St R Qd 67 ( Aplin ). Barrett J considered that the relevant provisions of the then Companies Act of Queensland were sufficiently similar to those of the Corporations Act to give rise to the conclusion that any difficulties of the kind suggested in that case "also conceivably arise under the present provisions" (at [13]). 71 It is necessary to go back to Aplin . Two persons, Aplin and Brown, were appointed as liquidators in a voluntary winding up, without any determination being made as to the exercise of their powers. They acted in the winding up jointly until Aplin died. For reasons that do not matter, the company in general meeting was not competent to act, and so there was no question of its filling of the vacancy pursuant to s 130 of the Companies Act 1863 (Qld). A representative on behalf of one of the contributories made an application by petition to the Supreme Court of Queensland for an order replacing Aplin or appointing Brown as sole liquidator. 72 Section 123(6) of the Companies Act 1863 provided that when several liquidators were appointed, their powers were exercisable by such one or more of them as might be determined at the time of their appointment "or in default of such determination by any number not less than two". In the circumstances, the effect of this provision was that although there was still a liquidator in place, he was incapable of continuing to exercise the powers of "the liquidators". 73 Until recently, the Corporations Act contained in s 506(4) an analogue of s 123(6) of the Queensland Act of 1863. Section 506(4) provided: When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as is determined at the time of their appointment, or in default of such determination, by any number not less than 2. [my emphasis] 74 I was minded to follow the course established by Aplin and Vouris of removing the continuing liquidator, Mr Condon, and appointing him as sole liquidator. However, the position must now be considered in the light of the recent amendments made by the Corporations Amendment (Insolvency) Act 2007 (referred to at [61] above). Consistently with the new s 530 (set out at [61] above), s 506(4) of the Corporations Act was repealed by that amending Act (see s 3, Sch1, Pt 3, Item 113.)


case_text: In Re McGrath [2005] NSWSC 506 ; (2005) 54 ACSR 55 , Barrett J appears to have thought that even where, as in the present case and in the case before him, there is a continuing co-liquidator in office, there is a "vacancy in the office of a liquidator appointed by the Court" where a co-liquidator ceases to hold office, and therefore s 473(1) requires the Court to fill the vacancy (at [5]). His Honour appointed a second liquidator to replace one who had resigned. 61 The questions raised above must now be considered in the light of s 530 of the Corporations Act which was introduced by the Corporations Amendment (Insolvency) Act 2007 (Cth), s 3 , Sch 1, Pt 3 , Item 114. Section 530 provides: If 2 or more persons have been appointed as liquidators of a company: (a) a function or power of a liquidator of the company may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or resolution appointing them otherwise provides; and (b) a reference in this Act to a liquidator, or to the liquidator, of a company is, in the case of the first-mentioned company, a reference to whichever one or more of those liquidators the case requires. This provision has assimilated the position of multiple liquidators to that of multiple voluntary administrators and of multiple administrators of deeds of company arrangement under s 451A(2) and s 451B(2) of the Corporations Act respectively (set out at [84] and [93] below). 62 Clearly, s 530 produced the effect that following Mr Watson's resignation, as prior to it, Mr Condon was entitled alone to perform the functions and exercise the powers that were vested in "the liquidators". In the result, whatever be the correct meaning of the word "must" in s 473(7) , there is only a vacancy in the office of a liquidator for the purposes of that subsection where a sole liquidator or all co-liquidators have ceased to hold office.