case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1

case_text: may be cases where the Tribunal is not confined to the " case " as expressly articulated by a claimant: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 per Merkel J. In properly discharging the jurisdiction entrusted to it, the Tribunal must also consider a claim that emerges from the materials presented to it for consideration. How clearly a claim that has not been expressly raised must emerge from the materials has been variously expressed. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [48] , [2004] FCAFC 263 ; 144 FCR 1 at 18 to 19, Black CJ, French and Selway JJ said (references omitted): [58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it ... There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated ... By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant ... It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it ... The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. Their Honours thereafter went on to refer to the decision in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 , 75 ALD 411 and continued: ... Selway J however went on to observe in SGBB (at [17]): But this does not mean the application is to be treated as an exercise in 19th Century pleading. His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said: The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made. His Honour, in our view, correctly stated the position when he said (at [18]): The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it. This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.


case_outcome: considered

case_title: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28


case_outcome: cited

case_title: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 , 129 FCR 137

case_text: expressions have thus been used to attempt to describe the manner in which an unarticulated claim may nevertheless sufficiently emerge from the materials before a Tribunal and thus trigger the necessity to consider that claim if the Tribunal is to properly discharge its jurisdiction. Those expressions have included the phrases " squarely " raised; " sufficiently raised " and " clearly arise ". There thus remains legitimate room for debate as to how " squarely " an alternative case need be raised before it need be considered: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 at [19] , [2003] FCAFC 120 ; 129 FCR 137 at 146 per Cooper J. Whatever may be the threshold before the Tribunal is required to give consideration to a claim other than that expressly raised, it is not considered that there arose for resolution the more specifically formulated claim now advanced on behalf of the Appellant as to his expressed intention to take " legal action ". Irrespective of whether or not the now formulated claim was expressly raised or whether it was " squarely " raised, the Appellant further contends that the Tribunal itself nevertheless accepted that the claim as now formulated did emerge from the materials before it. No question arises, so the Appellant contends, for the Court to review those materials and for the Court to form any view as to whether in its opinion the newly formulated claim emerged from the materials. Indeed, the Appellant contends that the Tribunal's acceptance and formulation of the claim is conclusive such that the Court should not itself look at the evidence and other materials and go behind the finding of the Tribunal. By failing to resolve the claim, the Tribunal committed jurisdictional error — or so the argument runs.


case_title: Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287

case_text: failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.


case_outcome: followed

case_title: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91


case_title: SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 , 105 ALD 499

case_text: observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.


case_title: SZMHL v Minister for Immigration and Citizenship [2009] FCA 581


case_outcome: affirmed

case_text: way of a decision signed on 19 September 2007 the Tribunal affirmed the decision not to grant the visa. An application for review of the Tribunal's decision was dismissed by the Federal Magistrates Court of Australia on 14 April 2009: SZMPF v Minister for Immigration and Citizenship [2009] FMCA 273. The Notice of Appeal as filed in this Court on 1 May 2009 sets forth the sole ground of appeal to be resolved as follows (without alteration): Ground 1 The learned Federal Magistrate erred by holding that the Appellant's claim that the Tribunal failed to consider an integer of his case or a claim or issue critical to his case has not been made out. Particulars His Honour stated in [45] that the Tribunal had held that: In respect of the applicant's concerns regarding the death of his cousin, this matter has been the subject of extensive media reporting and there is evidence that the Fijian Human Rights Commission continues to operate. There is nothing to suggest that those who have reported the death or followed any investigation into it have in anyway been adversely of interest to military authorities. While there may be legitimate questions about how that investigation will proceed in the current environment, the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return. Notably, members of the applicant's family have remained in Fiji without further difficulties. In [47] his Honour held based on the Tribunal's above stated finding: This appears to me to address the applicant's claims that he would be in danger if he were to take action on his return in relation to the death of his cousin or were to pursue the investigation into his cousin's death...... ... ........ This was an erroneous finding because on a correct reading the Tribunal was not addressing that claim. The Tribunal only considered people in three categories: (a) those who reported the cousin's death; (b) those who followed up the investigation into it; and (c) members of the applicant's extended family in Fiji. The Tribunal did not consider someone in his position who: (a) expressed an intention to take legal action against the army when he returns to Fiji; and (b) expressed interest in the progress of the investigation into his cousin's death. This is apparently the same ground that was unsuccessfully relied upon before the Federal Magistrate. The Federal Magistrate reviewed the reasons for decision of the Tribunal and relevantly concluded: [46] ... I am satisfied that: (a) the applicant's claims were put before the Tribunal; and (b) those claims were considered by the Tribunal. The Federal Magistrate then proceeded to conclude that the Tribunal had committed no jurisdictional error and dismissed the application. The Appellant appeared before this Court on 6 August 2009. He was then represented by a solicitor. The case advanced both before the Federal Magistrate and this Court on appeal sought to draw a distinction between an administrative tribunal failing to advert to evidence or making an error of fact based upon evidence (on the one hand) and a tribunal failing to consider a contention advanced before it for resolution (on the other).


case_outcome: applied

case_text: distinction is well-recognised: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 , 75 ALD 630. French, Sackville and Hely JJ there observed: [45] In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is: '... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415(1)) The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414 , to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision. [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87] - [97] ) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.


case_text: It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory. An appeal's subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.


case_title: Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403


case_title: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65


case_title: Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129


case_text: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales. Although the Supreme Court of New South Wales has declined to follow Spincode , insofar as Brooking JA held that the equitable obligation of loyalty owed by a solicitor to his or her client survives the termination of the retainer, the decisions in New South Wales do not cast any doubt upon the court's inherent power to restrain solicitors from acting in a particular case having regard to the interests of the administration of justice. Similarly, the court's inherent supervisory jurisdiction over solicitors and counsel was not relevant to the House of Lords decision in Bolkiah . For the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ). In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.


case_text: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales. In Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55]. Although the Supreme Court of New South Wales has declined to follow Spincode , insofar as Brooking JA held that the equitable obligation of loyalty owed by a solicitor to his or her client survives the termination of the retainer, the decisions in New South Wales do not cast any doubt upon the court's inherent power to restrain solicitors from acting in a particular case having regard to the interests of the administration of justice. Similarly, the court's inherent supervisory jurisdiction over solicitors and counsel was not relevant to the House of Lords decision in Bolkiah . In Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264. In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.


case_text: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales.


case_title: Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202


case_title: Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152


case_title: Belan v Casey [2002] NSWSC 58

case_text: Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55]. Brereton J concluded his discussion of the authorities by enunciating the following principles (at 582-583 [76]): '... the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Newman v Phillips Fox ; Mitchell v Pattern Holdings ; Spincode Pty Ltd ; Holborow ; Williamson v Nilant ; Bowen v Stott ; Law Society v Holt ). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence. • The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Holborow ; Bowen v Stott ; Asia Pacific Telecommunications Ltd ). • The jurisdiction is to be regarded as exceptional and is to be exercised with caution ( Black v Taylor ; Grimwade v Meagher ; Bowen v Stott ). • Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ( Black v Taylor ; Grimwade v Meagher ; Williamson v Nilant ; Bowen v Stott ). • The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ( Black v Taylor ; Bowen v Stott ) . ' In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.


case_text: Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55].


case_title: Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550


case_title: Wan v McDonald (1992) 33 FCR 491

case_text: the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ).


case_text: the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ). Counsel for Landmark argued that there is no proper basis for granting an injunction in this case as Vogrig and WVL have never acted for the Dean interests, and there is no risk of misuse of confidential information. Landmark relied on Goldberg J's judgment in PhotoCure and the New South Wales decisions to which I have referred. This argument is misconceived. It is based on the false premise that the authorities that have rejected Brooking JA's view that a solicitor's duty of loyalty survives termination of the solicitor's retainer also rejected the third ground for judicial intervention. This is not the case. A long line of authorities makes it very clear that the third ground for judicial intervention remains in full force and effect, both in New South Wales and elsewhere in Australia. In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.


case_title: Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98


case_title: Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588


case_text: the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ). In this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done. In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.


case_title: Grimwade v Meagher [1995] 1 VR 446

case_text: mounting a case based on the inherent powers of the Court to control the conduct of solicitors and counsel, counsel for the Dean interests relied on the principle enunciated by Mandie J in Grimwade v Meagher [1995] 1 VR 446 ( 'Grimwade' ) at 452: 'In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.' In Grimwade , the restraining order was directed to senior counsel who had previously prosecuted the plaintiff in criminal proceedings and who proposed to act against him in civil proceedings. There was no question of the plaintiff being a client or former client of the senior counsel. In what Mandie J described as unique, extraordinary and highly exceptional circumstances, he made an order restraining senior counsel from acting in the civil proceedings. He did so on the basis that there was a real and sensible risk of a lack of objectivity by the first defendant which not only gave rise to an undue risk of unfairness or disadvantage to the plaintiff but also gave rise to a substantial concern that a fair trial would not be had: at 455. Brereton J concluded his discussion of the authorities by enunciating the following principles (at 582-583 [76]): '... the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Newman v Phillips Fox ; Mitchell v Pattern Holdings ; Spincode Pty Ltd ; Holborow ; Williamson v Nilant ; Bowen v Stott ; Law Society v Holt ). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence. • The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Holborow ; Bowen v Stott ; Asia Pacific Telecommunications Ltd ). • The jurisdiction is to be regarded as exceptional and is to be exercised with caution ( Black v Taylor ; Grimwade v Meagher ; Bowen v Stott ). • Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ( Black v Taylor ; Grimwade v Meagher ; Williamson v Nilant ; Bowen v Stott ). • The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ( Black v Taylor ; Bowen v Stott ) . ' In this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done.


case_text: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264. In these circumstances, the question arises whether I should assume that the proceedings will be extended to include allegations that the meeting and resolution were invalid, as foreshadowed by counsel for the Deans. In Bowen v Stott , Hasluck J confronted a similar situation. In that case, the proposed amendment raised issues concerning the alleged settlement of earlier proceedings. Hasluck J said that if the pleadings were amended as proposed and the matter proceeded to trial, there would be an evidentiary issue as to whether a settlement was effected, and on that issue it was likely that evidence would be required from the solicitor and counsel involved in the negotiations. In his Honour's view, it would be almost inevitable that they would be challenged about the relevant events. In these circumstances, Hasluck J proceeded on the basis that the pleadings would be amended as proposed, and granted an injunction restraining the relevant counsel and solicitors from acting in the matter. The position in Kallinicos was not dissimilar. The application for an injunction was made at an early stage of the proceedings before a defence had been filed. The evidence before Brereton J indicated, nonetheless, that the solicitor was likely to be a material witness on issues of substance which appeared to be controversial: at 584 [84]. Brereton J took these matters into account in granting the injunction. The inherent jurisdiction of this Court is discretionary. Appropriate weight must be given to the exceptional nature of the jurisdiction and to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. I have also taken into account Brereton J's reminder in Kallinicos that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief. Here, the consideration that I must bear in mind is that if WVL is restrained from acting for GSS, it may not be able to obtain replacement lawyers because of its deadlocked and insolvent position. That circumstance may, of course, hasten an application for the winding up of GSS. Bearing these factors in mind, I have nonetheless concluded that this is an exceptional case that warrants intervention. On the whole, I am satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that WVL be restrained from acting for GSS. In view of Vogrig and WVL's past conduct and their retainer to act for Landmark and the Porchs, there is a fundamental difficulty in WVL continuing to act for GSS against the Dean interests, when GSS represents the beneficial interests of both Landmark and the Dean interests. These matters warrant the grant of injunctive relief even if no account is taken of WVL's position in relation to the meeting and resolution of 16 June 2006. Accordingly, the order of the Court will be that WVL be restrained from acting as solicitor for the first applicant in these proceedings. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 31 October 2006 Counsel for the Applicants: M Rivette Solicitor for the Applicants: Wakefield & Vogrig Lawyers Counsel for the First to Fourth Respondents: P Clarke Solicitor for the First to Fourth Respondents: Harwood Andrews Lawyers Counsel for the Fifth to Seventh Respondents: D Nelson Solicitor for the Fifth to Seventh Respondents: David Nelson Lawyers Date of Hearing: 24 October 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1404.html


case_text: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264.


case_title: Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438


case_title: Newman v Phillips Fox (a firm) (1999) 21 WAR 309


case_title: Bowen v Stott [2004] WASC 94

case_text: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264. In the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 ( 'Mitchell' ), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( 'Holborow' ) and Hasluck J in Bowen v Stott . In Mitchell , Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow , Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott , Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness: at [47], [53] and [55]. Brereton J concluded his discussion of the authorities by enunciating the following principles (at 582-583 [76]): '... the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Newman v Phillips Fox ; Mitchell v Pattern Holdings ; Spincode Pty Ltd ; Holborow ; Williamson v Nilant ; Bowen v Stott ; Law Society v Holt ). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence. • The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Holborow ; Bowen v Stott ; Asia Pacific Telecommunications Ltd ). • The jurisdiction is to be regarded as exceptional and is to be exercised with caution ( Black v Taylor ; Grimwade v Meagher ; Bowen v Stott ). • Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ( Black v Taylor ; Grimwade v Meagher ; Williamson v Nilant ; Bowen v Stott ). • The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ( Black v Taylor ; Bowen v Stott ) . ' In these circumstances, the question arises whether I should assume that the proceedings will be extended to include allegations that the meeting and resolution were invalid, as foreshadowed by counsel for the Deans. In Bowen v Stott , Hasluck J confronted a similar situation. In that case, the proposed amendment raised issues concerning the alleged settlement of earlier proceedings. Hasluck J said that if the pleadings were amended as proposed and the matter proceeded to trial, there would be an evidentiary issue as to whether a settlement was effected, and on that issue it was likely that evidence would be required from the solicitor and counsel involved in the negotiations. In his Honour's view, it would be almost inevitable that they would be challenged about the relevant events. In these circumstances, Hasluck J proceeded on the basis that the pleadings would be amended as proposed, and granted an injunction restraining the relevant counsel and solicitors from acting in the matter. The position in Kallinicos was not dissimilar. The application for an injunction was made at an early stage of the proceedings before a defence had been filed. The evidence before Brereton J indicated, nonetheless, that the solicitor was likely to be a material witness on issues of substance which appeared to be controversial: at 584 [84]. Brereton J took these matters into account in granting the injunction.


case_title: Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264


case_text: the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 ( 'Mitchell' ), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( 'Holborow' ) and Hasluck J in Bowen v Stott . In Mitchell , Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow , Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott , Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness: at [47], [53] and [55].


case_title: Holborow v MacDonald Rudder [2002] WASC 265


case_text: this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done.


case_text: crucial question, therefore, is whether on the evidence before me a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Vogrig and WVL be restrained from acting for GSS in these proceedings. In answering this question it must be borne in mind that this is an application for a permanent injunction: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998). It must also be borne in mind that the Court's jurisdiction is an exceptional one; it is to be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the solicitor of its choice without due cause. In a very real sense, the dispute that lies at the heart of this litigation represents a dispute between the Dean interests and the Landmark interests, including the Porchs. The dispute erupted in about August 2005 as the business operations of the joint venture were being wound down. Under the Heads of Agreement, it was agreed that the jointly owned land would be sold and that GSS would be wound up. But there was no express agreement between the joint venturers about what would happen once GSS ceased to operate concerning GSS' business records or its former clients. The nub of the dispute concerns what happened to these records and clients. At that time that GSS' business was being shut down, Vogrig personally acted for Landmark and the Porchs. He also purported to act for GSS when he must have known that he had no proper authority from the board of directors of GSS to do so. When HAL protested on behalf of the Deans that he had no authority to act for GSS, he gave the disingenuous response that his then firm had never received instructions to act for GSS in any capacity. That proposition is denied by the correspondence which is in evidence in these proceedings.


case_text: June 2006, Vogrig had joined the firm of WVL. I infer that Vogrig advised the Porchs in relation to the meeting of the board of directors of GSS that was notified for 16 June 2006. WVL forwarded the notice of meeting which allowed only one week's notice for the convening of the meeting. He rejected, or on his advice the Porchs rejected, the Deans' request for an adjournment of the meeting until 20 July 2006 or a mutually convenient date thereafter. The articles of GSS do not prescribe any time for the convening of directors' meetings. In such a case, the law requires that the period of notice for the convening of the meeting be fair and reasonable: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546; Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 at 461 ( 'Toole' ); Bell v Burton (1993) 12 ACSR 325 at 329. In deciding what is fair and reasonable, the nature of the company and its practices are important factors. So too is the nature of the business to be transacted at the meeting: Toole at 461. Proper notice is a prerequisite of a validly constituted meeting: Barren v Potter [1914] 1 Ch 895.


case_title: Toole v Flexihire Pty Ltd (1991) 6 ACSR 455


case_title: Bell v Burton (1993) 12 ACSR 325


case_title: Barren v Potter [1914] 1 Ch 895


case_title: Petsch v Kennedy [1971] 1 NSWLR 494

case_text: the limited evidence before me, there is a serious question as to the validity of the meeting and the resolution passed at it. The proposed resolution involved a grave matter and required consideration of a detailed set of allegations in the draft statement of claim. The correspondence does not disclose any compelling reason why the request for an adjournment until 20 July was not acceded to or any difficulties that would arise for the Porchs if the meeting were to be adjourned as requested. In their letter of 15 June 2006, HAL drew the relevant legal requirements to the attention of WVL, pointing out that reasonable notice must be given of any directors' meeting, and that what is reasonable must be determined in the light of the company's particular structure, practice and affairs (citing Petsch v Kennedy [1971] 1 NSWLR 494). The letter from HAL to WVL of 15 June 2006 foreshadowed that an application may be made to the Court for an order restraining any party from acting on any purported resolution of GSS passed at the meeting of 16 June 2006. No such application has been made. At this stage, the Deans' defence in these proceedings does not contain any allegation that the resolution that purported to authorise the institution of these proceedings by GSS was invalid. There is no counterclaim to that effect by the Deans. However, counsel for the Deans foreshadowed that the claim would be raised in these proceedings. He also said that his clients proposed to take separate proceedings to apply for a winding up order against GSS.


case_text: FM Cameron embarked upon a consideration of whether the amended grounds and supporting submissions raised an arguable ground of error in the exercise of the Tribunal's statutory jurisdiction, the Federal Magistrates Court did not determine the merits of the principal application filed on 19 November 2007 in any dispositive or final sense. There was no final adjudication of the merits. The decision to refuse to set aside the dismissal order was an interlocutory decision of the Federal Magistrates Court: Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby and Callinan JJ; Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 per Bowen CJ, Lockhart and Sheppard JJ; Re Luck (2003) 203 ALR 1.


case_title: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424


case_text: principles governing granting or withholding leave to appeal are well known: Décor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ; MZXPW v Minister for Immigration and Citizenship [2008] FCA 689 per Tracey J; MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 per Spender J; SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498 per Jacobson J at [4] and [5]. There are two questions. First, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Second, whether substantial injustice would be done if leave were refused supposing the decision to be wrong. In the present case, the question is whether the exercise of the discretion by the Federal Magistrates Court conferred by rule 16.05(2)(a) of the Federal Magistrates Court Rules to set aside (or not) orders made in the absence of a party, miscarried. The exercise of the discretion was informed by three considerations: whether the absence of the applicant from the hearing was satisfactorily explained; whether arguable grounds of jurisdictional error were demonstrated; and whether any prejudice might arise to the respondent in setting aside the dismissal order. The final question did not arise in the opinion of FM Cameron having regard to his findings in relation to the first two questions which were that the failure to appear was not satisfactorily explained and arguable grounds of jurisdictional error were not demonstrated. Background


case_title: MZXPW v Minister for Immigration and Citizenship [2008] FCA 689


case_title: MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765


case_title: SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498


case_text: Hamersley claims that, by reason of certain orders made by Kenny J in Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 867 ; (1999) 164 ALR 203) ( First Hamersley Iron ), the NCC should be prevented from considering or otherwise dealing with TPI's application. 5 In First Hamersley Iron , a similar application was made by Robe River Mining Co Pty Ltd and a group of associated joint venturers (hereafter described for convenience as Robe River). Kenny J held that the NCC did not have power to recommend declaration of Hamersley's rail track under Pt IIIA of the TPA because it was not a "service" within s 44B. That was because the rail track involved "the use of a production process" and therefore fell within the exclusion to the definition of "service" in that section. 6 TPI's application to the NCC, which lies behind this proceeding, involves the same rail track as that featured in First Hamersley Iron, though it extends beyond it. Hamersley claims that the NCC remains permanently bound by her Honour's orders in First Hamersley Iron , and therefore has no power to consider TPI's application or recommend declaration of the service. That is so despite the fact that TPI was not a party to the earlier proceeding. 7 Hamersley invokes the doctrine of res judicata as the central plank of its case. It also relies upon what it says were undertakings given to the Court by the NCC in First Hamersley Iron , which it submits prevent the NCC from entertaining TPI's application. 8 Part IIIA of the TPA contains a statutory regime for regulated access to what may be described as "essential facilities". Introduced in 1995, this regime allows the designated Minister, usually the Federal Treasurer, to "declare" a particular "service" pursuant to s 44H. The Minister cannot proceed without a recommendation from the NCC. This means that all declarations must be filtered through the NCC. 9 A declaration of a service overrides what would otherwise be the exclusive rights of the owner of a "monopoly" facility to determine the terms and conditions upon which that owner will supply its services to others. In essence, the focus is upon facilities of national significance, which it would be uneconomic to duplicate and which supply a service, access to which would promote competition, efficiency and the public interest.


case_text: The provisions of Pt IIIA are complex and have given rise to difficulty. For example, judges of this Court have differed as to the meaning of the term "the use of a production process" in s 44B. Recently, in BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 , a Full Court, by majority, disapproved Kenny J's reasoning in First Hamersley Iron. In March this year, the High Court granted special leave to appeal from that decision of the Full Court. 16 It is well established that the doctrine of res judicata will apply whether or not the decision which is said to give rise to that form of estoppel has itself been overruled. It makes no difference whether the initial judgment was wrong. It follows that I need not concern myself with whether First Hamersley Iron represents good law. The only question is whether it operates in the way for which Hamersley contends. 17 In considering whether First Hamersley Iron operates to prevent the NCC from dealing with the TPI application , it is of course necessary to pay close attention to the issues determined in that case. 18 The facts may be briefly stated. In September 1998 Robe River applied to the NCC under s 44F(1) to recommend that the designated Minister declare the Hamersley rail track to be a "service". The application identified Hamersley as the provider of the service and the owner of the facility to which it related. 19 The Robe River application went on to state as follows: "3.2 The service to which [Robe] seeks access is the bulk iron ore rail track transportation service provided by the Hamersley Rail Infrastructure Facility, as defined in part 4 of this application ( Rail Track Service ). This should be distinguished from any rail haulage service which may be available in relation to this facility. 3.3 The Rail Track Service is required for use by both [Robe] trains and by [Robe] hi-rails only over that section of the Hamersley Rail Infrastructure Facility described in part 4 of this application. The Rail Track Service comprises the use of an infrastructure facility, being the Hamersley Rail Infrastructure Facility mainline, yard track and maintenance support road, including the in-track fault detection and monitoring systems, and the use of a communications service being the train control systems, inclusive of two-way radio. 3.4 The access sought by [Robe] is the use of the Rail Track Service by [Robe] trains laden with iron ore from [Robe's] West Angelas minesite, travelling from the minesite to [Robe's] Port Walcott at Cape Lambert, and by empty [Robe] trains on a return journey to the minesite. ... 3.6 [Robe] is not seeking the service provided by the [Hamersley] locomotives, rolling stock or hi-rails. [Robe] will provide its own locomotives, rolling stock, hi-rails and all necessary operational personnel. [Hi-rails are road motor vehicles capable of being driven on rail tracks and are used for maintenance purposes] "


case_text: Ultimately, the Full Court held that, having regard to the undertakings offered by Hamersley, no purpose would be served in proceeding to hear the appeals: Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 ; (2000) ATPR 41-733 at [14] . Any possible prejudice to Hope Downs resulting from issue estoppel or res judicata was removed by those undertakings. Accordingly, the Court ordered (at [15]) that the appeals be forever stayed. It added that it should not be taken to have expressed any view as to the correctness or otherwise of the judgment appealed from. 37 Transcript of the proceedings before the Full Court was tendered before me. In that transcript, senior counsel for Hope Downs expressed concern that any future application his client might make for a recommendation in relation to the Hamersley railway track would be met with a claim of issue estoppel or res judicata. Mr Neil Young QC, on behalf of Hamersley, responded by submitting that the appeal had become academic. That was because the issue in the case depended entirely upon the definition of "rail track service" in Robe River's application which was now defunct. 38 Chief Justice Black commented that everything turned upon "the particular application".


case_text: Hamersley next submits that the process of construction must be faithful to the meaning of the order as originally pronounced. A later court cannot make the order it considers the original court should have made. See generally P W Young, "Construing Court Orders" (1998) 72 ALJ 117. Nonetheless, it is now tolerably clear, and Hamersley accepts, that in construing an order, regard may be had to the reasons for judgment and to other extrinsic material where appropriate: Athens v Randwick City Council (2005) 64 NSWLR 58 at [131]-[140] per Santow JA with whom Tobias JA agreed. Moreover, in construing an order, it may be relevant to know what the successful plaintiff or applicant sought by way of relief. I shall return to this issue shortly. 72 Hamersley formulates the issue of construction concerning the orders of Kenny J as follows: • Whether, as Hamersley contends, the reference to "Rail Track Service" in the second declaration means "the bulk iron ore rail track transportation service provided by the Hamersley Rail Infrastructure Facility" with the consequence that the NCC has no power to make a recommendation regarding declaration of such a service; or • Whether, as the NCC and TPI contend, the adoption in the second declaration of the defined term "Rail Track Service" from the Robe River application carries an implication that the second declaration merely states that the NCC lacks power to make a recommendation to declare such a service, pursuant to the Robe River declaration application. 73 Hamersley submits that in resolving this issue, there is no need to resort to any extrinsic material, including, it argues, the reasons for judgment. It submits that had Kenny J intended the narrow construction for which the NCC and TPI now contend, her Honour would have said so. It argues that the ordinary meaning of the words used in the second declaration is that the Court declared, once and for all, the position in respect of any recommendation regarding declaration of Hamersley's rail track service. 74 Hamersley says that such a construction is not surprising. On the NCC's construction, the Robe River parties would not have been inhibited by the declarations made by Kenny J from making a further application, even the very next day, for a recommendation regarding the same rail track service. That is because a second application by Robe River would not be "the Robe declaration application the subject of those orders". 75 Hamersley argues that on the NCC's construction, Hope Downs would have been free, immediately following First Hamersley Iron, to apply for a recommendation in exactly the same terms as Robe River had done. It says that would be contrary to principle. It would mean that the declarations made by Kenny J would not have quelled the controversy between the parties. The Court would therefore not have discharged its judicial function. 79 The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 84 That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263. 86 Indeed, I would go further. In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved: Owston Nominees No 2 Pty Ltd v Branair Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 and Athens v Randwick City Council.


case_text: The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 84 That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263.


case_text: The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 86 Indeed, I would go further. In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved: Owston Nominees No 2 Pty Ltd v Branair Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 and Athens v Randwick City Council.


case_text: The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65.


case_title: Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65


case_title: Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997, Santow J)

case_text: A number of the authorities cited by Tarrant are instructive. First, by way of background, in Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997), Santow J observed (at 6) that "orders have to cope with situations not readily foreseen, where their later application, and hence their precise interpretation, may be open to argument." 82 Tarrant notes that there is a debate as to whether it may be appropriate, in certain circumstances, not merely to have regard to the reasons for judgment but also other material in order to interpret a court order. This would include pleadings and affidavits.


case_text: Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238]. 140 To construe Mr Brett's statements in the manner for which Hamersley contends would also be contrary to the NCC's statutory functions and duties under Pt IIIA. Moreover, his words could scarcely form the basis of any application against the NCC for contempt of court. Injunctive orders must be expressed in unambiguous language so that a person subjected to an injunction is entirely clear what conduct is expected of them: McNair Anderson Associates Pty Ltd v Hinch. 141 More importantly, it needs to be emphasised that if Kenny J had in fact contemplated granting an injunction that extended more widely than the application then before the Court, it is reasonable to assume that the NCC and the other respondents would have sought to dissuade her Honour from doing so. The fact that none of the respondents made any submission to that effect suggests that they did not view Mr Brett's statements as tantamount to an undertaking equivalent to a permanent injunction going beyond the bounds of the declarations actually made. 142 If, contrary to my conclusions set out above, Mr Brett's words are to be understood as an "undertaking", rather than as a statement of deference to the declaratory orders foreshadowed, the question remains, what was the NCC undertaking to do? If, as I have indicated, the declarations made by her Honour concerned a specific service defined in a particular application to the NCC, and resolved a controversy that was to be determined on the then current facts, the "undertaking" was surely intended to operate no more broadly than the declaratory relief. Mr Brett's statement was made in response to the foreshadowed declarations and not just the foreshadowed permanent injunction. His statement was that the NCC "would act accordingly". That means, in context, in accordance with the declarations proposed. It does not mean in accordance with any injunction of the kind her Honour might put forward for consideration. 143 In any event, the terms of the foreshadowed injunction employed the expression "rail track service" in a context where that expression had to be understood as defined in the first of the declarations ultimately made. 144 I accept, of course, that an assurance of the kind given by Mr Brett might, in some circumstances, give rise to an estoppel. In Halsbury's Laws of Australia, the doctrine of estoppel by representation is discussed at [190-240]-[190-270]. The doctrine precludes a party who, by representation, has induced another party to adopt or accept a state of affairs, and consequently to act to that other party's detriment, from asserting a right inconsistent with the state of affairs upon which that other party acted.


case_text: Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238].


case_title: Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653


case_title: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451


case_title: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1


case_text: That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263. 87 I note that in Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) at 569, Allsop J concluded that, when construing court orders, regard may even be had to the evidence that was led before the judge who pronounced those orders. See also Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 and Australian Energy Ltd v Lennard Oil NL (No 2) at 232.


case_text: That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263.


case_text: I note that in Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) at 569, Allsop J concluded that, when construing court orders, regard may even be had to the evidence that was led before the judge who pronounced those orders. See also Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 and Australian Energy Ltd v Lennard Oil NL (No 2) at 232.


case_title: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334

case_text: TPI joins in the NCC's submissions. However, it adds that apart from the fact that Kenny J used the term "Rail Track Service", which her Honour had carefully and narrowly defined in her first declaration, it was not open to her to make a declaration in any wider terms. That was because there was no matter before the Court other than the amenability of the Rail Track Service, as defined, to a declaration recommendation by the NCC. Accordingly, the Court had no jurisdiction to make a declaration about anything more than it did: Bass v Permanent Trustee Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at [45] - [47] . TPI also cites Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 in support of the proposition that, where the underlying factual subject matter of a proposed declaration is uncertain or hypothetical, the Court lacks jurisdiction to make a declaration.


case_title: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564


case_text: In Turner v London Transport Executive [1977] ICR 952, a plea of issue estoppel failed because "the findings of the industrial tribunal were not sufficiently clear and precise". Browne LJ said (at 964): "The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity. " [Emphasis added.]


case_title: Hacking v Lee (1860) 9 WR 70

case_text: Some examples of just how strictly the courts have viewed this requirement may be useful. It has been held that a party, against whom judgment has been given when suing in a representative capacity, is not estopped from suing in a different representative capacity. That is because the subject matter of the litigation is not the same in the two proceedings. See generally Hacking v Lee (1860) 9 WR 70. Similarly, an acquittal on a charge of wilfully making a false tax return has been held not to be a bar to a civil claim brought by the Commissioner alleging that the return was fraudulent or wilfully misleading. The issues were not identical. In addition, the onus of proof differed: Maxwell v IRC [1962] NZLR 683.


case_title: Maxwell v IRC [1962] NZLR 683


case_text: There are cases in which a change of circumstances has led to the rejection of a claim of estoppel. In Ord v Ord [1923] 2 KB 432, a wife sued for maintenance under a deed of separation. The husband sought to have the deed set aside on the basis that she had fraudulently concealed her adultery. In the first action, the husband failed to prove adultery. In a later action for further instalments, it was held that he could rely upon other acts of adultery of which he had no knowledge at the time of the first action.


case_title: Richards v Richards [1953] P 36

case_text: Similarly, in Richards v Richards [1953] P 36 , it was held that where a wife's charge of cruelty had been dismissed by justices, there was no estoppel preventing her from leading the same evidence, together with other evidence covering a later period, to establish cruelty at a later date. In Burman v Woods [1948] 1 KB 111, it was held that a decision refusing an order for possession based on hardship would not bar later proceedings. That was because the factors relevant to hardship might change. To the same effect is Mills v Cooper [1967] 2 KB 459, where it was held that a decision that the defendant was not a gypsy did not bar proceedings alleging that he was a gypsy on a later date.


case_title: Burman v Woods [1948] 1 KB 111


case_title: Mills v Cooper [1967] 2 KB 459


case_text: Spencer Bower (at 199) considers these cases to support the principle that issue estoppel "does not apply in a changing situation". The same point was made in New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1 , where Lord Maugham LC said (at 20): "If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them; but in my view the doctrine cannot be made to extend to presumptions or probabilities as to issues in a second action which may be, and yet cannot be asserted beyond all possible doubt to be, identical with those raised in the previous action. In the earlier action here the only relevant issue was as to the true construction of the only bond then sued upon; ... The issue of construction in the second action could indeed be proved in the second action to be similar to that decided in the first; but it related to a different cause of action based on other bonds and could not be asserted to be the same issue. Moreover, it is a matter of common knowledge that such bonds are often issued at different dates and in different countries, matters which might well have a possible bearing on their true construction. " [Emphasis added.]


case_text: In general, the identical subject matter requirement has been construed strictly. In Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 , Walsh J said (at 522): "In order that the principle of issue estoppel may apply it ... must be possible to assert without doubt that the issues are identical." 118 In the light of these authorities, Hamersley's estoppel claim must fail. In my view, the TPI application raises different issues to those that confronted the NCC at the time of First Hamersley Iron. The orders that Kenny J pronounced must be construed in the light of her Honour's reasons for judgment as a whole, as well as in the context of the issues which presented themselves at the time. 119 I should, for the sake of completeness, deal with Hamersley's alternative submission. It argues that even if its rail track today is not the same in all relevant respects as that of 1998, its claim of res judicata should still succeed. It submits that no matter how great the differences there may be between the two track systems, Kenny J's orders still speak for themselves, and must stand unless and until they are varied. 120 Hamersley recognises the implications of this submission. It accepts that, over time, conditions may change to such a degree as to warrant reconsideration of whether its railway system still involves "the use of a production process". It says that in that event, it would be open to the NCC to make application, pursuant to O 37 r 6 of the Federal Court Rules, for a variation of Kenny J's orders. This would be on the basis of "matters occurring after judgment".


case_text: It has been held that O 37 r 6 does not authorise the Court to set aside a judgment regularly passed and entered because new facts and circumstances have arisen. See Gamser v Nominal Defendant [1977] HCA 7 ; (1977) 136 CLR 145 , which concerned a similar rule of the Supreme Court of New South Wales. If an injunction has been granted, however, an order may be made under this rule suspending the operation of the injunction from the date of the changed circumstances. See generally Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365.


case_title: Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365