case_text: The applicants submitted that the Court has jurisdiction to entertain this application for leave nunc pro tunc notwithstanding that proceedings were commenced without leave. The applicants relied upon the decision of Re Testro Bros Consolidated Ltd [1965] VR 18, amongst others, in support of the proposition that the absence of leave is not a matter going to jurisdiction and that rather it is an irregularity capable of being corrected by the Court. 38 In that case, Sholl J said at 33 to 34 in the context of provisions of the Companies Act (1961) (Vic), which required leave to commence winding up proceedings: Now it has always been the view of the courts, since the early days of company legislation in England, that sections such as our present ss 199, 230(3) and 263(2) do not impose conditions precedent to the jurisdiction. ... But clearly the absence of leave is not a matter going to jurisdiction, and prohibition or certiorari will not lie; it is an irregularity in procedure, in a matter within jurisdiction...so that the proceedings are not void or "null". 39 His Honour referred to the policy reasons behind the requirement of leave and observed of the statute (at 35): Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like a statute of limitations. 40 In that case, Sholl J took the view that it was preferable for the court to grant leave nunc pro tunc , rather than require the party who would have been granted leave if they had applied at the requisite time to start again. 42 In Emanuele [1997] HCA 20 ; 188 CLR 114, the Australian Securities Commission had failed to obtain leave before applying for a winding up order under the Corporations Law . The court held by majority that the absence of leave was a defect or irregularity capable of correction by the court. The majority approved the observations of Sholl J in Re Testro Bros [1965] VR 18 (at 125 per Dawson J; at 129 per Toohey J; at 153 per Kirby J). 43 For the majority of the court, the question was whether the relevant provision conditioned the court's jurisdiction. In this context, Toohey J considered the nature of the relevant provision, and held at 128: Not only is s 459P(2) not a jurisdiction conferring provision, it does not create a cause of action or go to the relief that may be granted. 44 Similarly, Dawson J held at 125 (citations omitted): Section 459P does not confer jurisdiction on the Federal Court to make a winding up order; it does no more than identify the parties who may make an application, requiring leave to be obtained in the case of some of them including the Commission. Jurisdiction is conferred on the Federal Court by s 459A of the Corporations Law in conjunction with s 42(3) of the Corporations (South Australia) Act 1990 (SA). The failure to obtain leave was a mere defect or irregularity in the exercise of that jurisdiction. It did not affect the validity of the order made, although it may have provided a ground for staying it or setting it aside. 45 In a separate judgment, Kirby J construed the relevant provision having regard to, amongst other things, the purpose of the legislation. In that context, his Honour observed that it would not promote the objectives of the legislation if the provision in question was construed as requiring strict compliance (at 155). This was so, despite the emphatic words of the section, which, if taken at face value, appeared to make leave an absolute strict requirement. In particular s 459P(2) provided that an application "may only be made with the leave of the Court", and s 459P(3) provided that the Court may give leave if satisfied there is a prima facie case, "but not otherwise".


case_outcome: cited

case_text: The applicants bear the onus of satisfying the Court, on the balance of probabilities, that the criteria identified in s 237(2) have been met: Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313 at [24]-[26] per Palmer J; Fiduciary v Morningstar 53 ACSR at [15] per Austin J; Re Varsity Queensland Pty Ltd [2006] QSC 356 at [9] per Mullins J.


case_text: I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances.


case_text: In relation to the Bank, the applicants submitted that the Bank: ...will be liable for the conduct of the Receivers if the Receivers were in fact its agents. If [the Bank] directed or interfered with the Receivers' activities, they will be the agents of [the Bank] (see American Express International Banking Corporation v Hurley [1985] 3 All ER 564 at 568(f) and 571(g); Florgale at [496]). The present case goes "beyond mere consultation or the communication of preferences" by [the Bank] but demonstrates that [the Bank] was "heavily involved in the performance of the Receivers' duties" (see State Bank of New South Wales Ltd v Chia [2000] NSWSC 552 ; (2000) 50 NSWLR 587 at [885-886] ). 109 The effect of rendering the Receivers the agents of the Company is to "relieve the mortgagee from the liabilities which the law casts upon a mortgagee going into possession and to place upon the mortgagor the liability for the acts and defaults of the receiver" (see State Bank of New South Wales Ltd v Chia [2000] NSWSC 552 ; (2000) 50 NSWLR 587 at [868] per Einstein J and the cases referred to). 110 A mortgagee has no power to direct a receiver in the performance of the receiver's task: Medforth v Blake [1999] EWCA Civ 1482 ; [2000] Ch 86 at 94-95; Chia 50 NSWLR at [881]. Nevertheless, communication between the receiver and the mortgagee is entirely proper. As was stated by Einstein J in Chia 50 NSWLR at [881] (citations omitted): But there is no doubt that the law allows, and even requires, interaction between a receiver and his or her appointors. The receiver occupies a fiduciary relationship with his or her appointors, one aspect of which is the duty of the receiver to keep his or her appointors informed about the progress of the receivership. 111 I accept that if a mortgagee directs the exercise of the powers of a receiver, or interferes with his or her conduct in the realisation of assets, then the usual consequences of the agency relationship between the receiver and mortgagor may be displaced: Florgale 11 VR at [496]; Chia 50 NSWLR at [881]-[886]; American Express International Banking Corporation v Hurley (1985) 3 All ER 564 at 568 and 571. 112 However, more than mere consultation or the communication of preferences by the mortgagee would be required: Chia 50 NSWLR at [885]. 113 The applicants relied upon the following main matters to support their contention that the Bank was heavily involved in the performance of the Receivers' duties: • The Bank had expressed a preference for a sale to Bundaberg on 6 January 2001. • On 30 January 2001, Mr Ray Pridmore, Global Credit Manager of the Melbourne branch of the Bank, spoke to members of Tully stating "[the Bank] can't allow the [Bundaberg] offer to lapse. [Mr Pridmore] will attempt to negotiate an extended period." At that time, no final offer had been received by the Bank from Bundaberg (through the Receivers). • Clause 18 of the Contract, which provided for the Bank to elect to complete the Contract or exercise the power of sale as mortgagee could only have been inserted on the Bank's instruction. The applicants submitted that if the Receivers were simply acting as agents for the Company, there would be no need for them to add such a clause. • On the morning of 21 February 2001, Tully spoke to the Receivers and wanted to arrange a meeting. The Receivers said they could not arrange a time without first conferring with the Bank at 10.30 am. • Mr Dennis wrote to Tully on 22 February 2001 and said "the position of our negotiations with [Tully] was duly considered in a telephone conference with [the Bank] on 21 February having regard to the interest of [the Bank] and the other stakeholders and in the context of the information available to me". 114 The applicants submitted that the Receivers were not merely consulting with the Bank but were taking instructions from it regarding negotiations with Tully. The applicants submitted that it was the Bank who considered the proposal of Tully at the telephone conference with the Receivers, which would have been unnecessary unless it was instructing the Receivers about them. The failure of the Receivers to communicate with Tully and bring them into competition with Bundaberg after a telephone conference with the Bank could only have occurred after instructions were taken from the Bank as to the manner in which the Receivers were to proceed. The applicants also submitted that the entirety of the communication between the Receivers and the Bank is within the Bank's and the Receivers' knowledge. As they have chosen not to go into evidence, the Court is entitled to more confidently draw an inference in favour of the applicants in the absence of evidence from the Bank and the Receivers.


case_text: The applicants bear the onus of satisfying the Court, on the balance of probabilities, that the criteria identified in s 237(2) have been met: Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313 at [24]-[26] per Palmer J; Fiduciary v Morningstar 53 ACSR at [15] per Austin J; Re Varsity Queensland Pty Ltd [2006] QSC 356 at [9] per Mullins J. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: • whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and • whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J. 67 I accept that more than "bald assertion" is required in order to establish an applicant's honest belief: Swansson 42 ACSR at [36] per Palmer J; Fiduciary Ltd 53 ACSR at [22] per Austin J. In fact, in the present case no applicant has deposed that he or she honestly believes that a good cause of action exists and has a reasonable prospect of success. The applicants' solicitor, Mr Maitland, has not sought to give hearsay evidence as to the existence of such an honest belief. 68 Whether or not good faith may be "relatively easy" to demonstrate (see Swansson 42 ACSR at [38]), there must be some positive evidence before the Court to show the applicants are acting in good faith. The fact that 31 shareholders seek to recover monetary compensation is not enough for the burden to be satisfied as to the good faith requirement of s 237. I do not think it is a sufficient answer for the applicants to say that there has not been any suggestion that any of them is acting otherwise than in good faith. The onus is upon the applicants to satisfy the Court that the applicants are acting in good faith. 69 However, in my view the onus has been discharged. It is not a requirement that the applicants depose to their belief; all that is required is that the Court be satisfied that the applicants are acting in good faith. The fact that the applicants are willing, as a condition of leave, to indemnify the Company for costs and any adverse costs order, that there is no suggestion of any collateral purpose, that the 31 applicants properly identified as shareholders constitute more than a token shareholding, and in any event if they are successful that the value of the shares of each such applicant (and other shareholders) will increase, is sufficient to demonstrate good faith. I do not rely on the mere existence of the expert reports sought to be adduced into evidence relating to undervalue for the purposes of my conclusion on this aspect. 70 In relation to the third criterion that it is in the best interests of the Company that the applicants be granted leave the applicants submitted that if the action is successful some potential benefit can be foreseen for the Company. In particular, the applicants submitted that the respondents will be able to meet any judgment ordered against them, and as such, there will be a practical benefit to the Company from the proceeding. 71 However, the respondents submitted that more needs to be shown. In Swansson 42 ACSR at [55]-[56], Palmer J said: At the outset, it is important to note that s 237(2)(c) requires the Court to be satisfied, not that the proposed derivative action may be , appears to be , or is likely to be , in the best interests of the company but, rather, that it is in its best interests. In this respect, s 237(2) differs significantly from its counterpart in the Canadian legislation, which requires the Court to be satisfied that the proposed derivative action "appears to be" in the interests of the company, and from s 165(3) of the New Zealand Act which requires that the Court "have regard to ... the interests of the company". These provisions seem to have led the Courts of those countries to the view that the best interests of a company need be considered only in a prima facie way: see eg Re Bellman and Western Approaches Ltd (1981) 130 DLR (3d) 193, at 201; Vrij v Boyle (1995) 3 NZLR 763, at 765; Techflow (NZ) Ltd v Techflow Pty Ltd (1996) 7 NZCLC 261,138. The requirement of s 237(2)(c) that the applicant satisfy the Court that the proposed action is in the best interests of the company is a far higher threshold for an applicant to cross. It requires the applicant to establish, on the balance of probabilities, a fact which can only be determined by taking into account all of the relevant circumstances. 78 This requirement may be equated with that which applies on an application for an interlocutory injunction: Swansson 42 ACSR at [25] per Palmer J; Goozee 42 ACSR at [32]-[32] per Barrett J; Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705 at [59] per Austin J.


case_text: Equating mortgagees' equitable obligations to those which apply to a receiver, the equitable principle was described in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 at [38] per Young CJ as follows: The duty is a duty to act conscionably towards the mortgagor and persons under the mortgagor. The duty is not to be considered in some mechanical way, but the whole of the mortgagee's conduct with respect to the sale is to be considered. The mortgagee may, up to a point, act solely in its own interests, but it must also act conscionably towards the mortgagor and those claiming under the mortgagor. 85 Chief Justice Young considered other authorities which explained that the content of the duty included the duty to deal fairly with the interests of the mortgagor, which in turn involves an obligation to refrain from acting in wilful or reckless disregard of those interests (at [45]). Furthermore, to establish breach of the duty, a borrower will need to establish a mortgagee so failed "to take reasonable steps to obtain a proper price for the properties that it was guilty of unconscionable conduct" (at [47]). 86 It may be that s 420A of the Act imposes a higher standard of duty on receivers (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [11.50]), but I need not investigate whether this is so. Nor do I need, for the purposes of disposing of the application, to deal with the precise requirements of s 180, other than to say that it is necessary for the applicants to show the standard of conduct expected in the circumstances, and the relevant breach of that standard.


case_text: Various disputes arose in relation to the deed of settlement and the implementation arrangements contemplated by the deed which resulted in further controversy between the Applicant and the Respondents. In particular, controversy arose concerning the requirement contained in the deed of settlement of 4 August 2004 for Mr Rogers to sell the Toogoom property to ALCPL by, on or about 15 August 2004 with clear title. It seems that the title was subject to enforcement processes in respect of two writs, one issued by Dale & Meyers Timber Trade Centre Pty Ltd and the other by Mr Scott Petersen seeking the recovery of certain debts. ALCPL had discharged the first mortgage but could not secure clear title due to the writs of attachment. The second matter of controversy concerned arrangements in relation to the purchase by Mr Rogers of two further lots at Toogoom located within an estate called Fraser Waters Estate (Lots 41 and 127) and the arrangements between Mr Rogers, Mr Hare and Mrs Judith Hare concerning the payment of deposits for the purchase of those lots, the ultimate settlement of the purchase for each lot and the basis upon which the title would be held and by whom. 14 On 15 September 2004, a second deed of settlement was entered into between Mr Rogers, ALC, ALCPL, Mr Hare and Mrs Judith Hare which provided for certain loans to be made to Mr Rogers, the acquisition and on-sale of Lots 41 and 127 and the distribution of the ultimate net proceeds of sale of Lots 41 and 127 after the payment of identified outgoings with ultimately the net profit, so defined, to be distributed equally between Mr Rogers and Mr Hare. One of the outgoings to be discharged from the proceeds of sale of Lots 41 and 127 was the performance of an indemnity obligation assumed by Mr Rogers in favour of ALCPL concerning the discharge of the writs of attachment which Mr Rogers had either failed to discharge or had not been able to originally discharge. 15 Otherwise, the deed of 15 September 2004 preserved the operation of the deed of 4 August 2004. 23 On 23 February 2005, Deputy Registrar Baldwin made an order for the sequestration of the estate of Mr Rogers based upon a failure to comply with a bankruptcy notice founded upon a default judgment in favour of a creditor. An application for review of that order was filed on 25 February 2005 in the Federal Magistrates Court. On 15 March 2005, Federal Magistrate Baumann made an order staying the sequestration order pending the determination of the application for review. On 19 May 2005, Federal Magistrate Baumann dismissed the application for review and discharged the stay order of 15 March 2005. On 25 May 2005, Mr Rogers appealed to the Federal Court from the order of Federal Magistrate Baumann dismissing the application for review. Mr Rogers made a further application for a stay of the sequestration order pending the determination of the appeal. His Honour Justice Dowsett on 14 June 2005 dismissed the motion for a stay, ordered Mr Rogers to pay the costs of the motion and made directions in relation to the appeal: Rogers Trading as Living Space Building v Dale & Meyers Timber Trade Centre Pty Ltd [2005] FCA 862. On 5 December 2005, His Honour Justice Dowsett heard and determined the appeal by Mr Rogers, dismissed the appeal and ordered Mr Rogers to pay the costs of the appeal: Rogers v Dale & Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891.


case_text: On 23 February 2005, Deputy Registrar Baldwin made an order for the sequestration of the estate of Mr Rogers based upon a failure to comply with a bankruptcy notice founded upon a default judgment in favour of a creditor. An application for review of that order was filed on 25 February 2005 in the Federal Magistrates Court. On 15 March 2005, Federal Magistrate Baumann made an order staying the sequestration order pending the determination of the application for review. On 19 May 2005, Federal Magistrate Baumann dismissed the application for review and discharged the stay order of 15 March 2005. On 25 May 2005, Mr Rogers appealed to the Federal Court from the order of Federal Magistrate Baumann dismissing the application for review. Mr Rogers made a further application for a stay of the sequestration order pending the determination of the appeal. His Honour Justice Dowsett on 14 June 2005 dismissed the motion for a stay, ordered Mr Rogers to pay the costs of the motion and made directions in relation to the appeal: Rogers Trading as Living Space Building v Dale & Meyers Timber Trade Centre Pty Ltd [2005] FCA 862. On 5 December 2005, His Honour Justice Dowsett heard and determined the appeal by Mr Rogers, dismissed the appeal and ordered Mr Rogers to pay the costs of the appeal: Rogers v Dale & Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891.


case_outcome: applied

case_title: Cummings v Claremont Petroleum NL (1986) 185 CLR 123

case_text: Section 116(1)(b) characterises as property divisible amongst the creditors, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his ... own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his ... discharge". The notion of property of the bankrupt within s5(1) of the Bankruptcy Act seems to have the same meaning for the purposes of both s58(1) and s 116 (1) of the Bankruptcy Act , consistent with the views of the majority in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1986) 185 CLR 124 and Cirillo v Citicorp Australia Ltd [2004] SASC 293 at paragraphs [75] [79] per Perry, Bleby and Gray JJ. 38 Accordingly, all legal and beneficial interests of the bankrupt and all rights, capacities and powers exercisable by the bankrupt in relation to those interests vest in the trustee and are divisible among the bankrupt's creditors. The powers referred to in s116(1)(b) of the Bankruptcy Act are "powers 'which are familiar to all conveyancers and are powers properly so called' as Farwell J pointed out In Re Rose; Trustee of the Property of E T Rose v Rose . In other words, the powers referred to are authorities to dispose of property or interests in property for the benefit of the donee of the power or of some other person": Cummings v Claremont Petroleum NL (supra), per Brennan CJ, Gaudron and McHugh JJ at page 133.


case_text: Section 116(1)(b) characterises as property divisible amongst the creditors, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his ... own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his ... discharge". The notion of property of the bankrupt within s5(1) of the Bankruptcy Act seems to have the same meaning for the purposes of both s58(1) and s 116 (1) of the Bankruptcy Act , consistent with the views of the majority in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1986) 185 CLR 124 and Cirillo v Citicorp Australia Ltd [2004] SASC 293 at paragraphs [75] [79] per Perry, Bleby and Gray JJ.


case_text: Accordingly, all legal and beneficial interests of the bankrupt and all rights, capacities and powers exercisable by the bankrupt in relation to those interests vest in the trustee and are divisible among the bankrupt's creditors. The powers referred to in s116(1)(b) of the Bankruptcy Act are "powers 'which are familiar to all conveyancers and are powers properly so called' as Farwell J pointed out In Re Rose; Trustee of the Property of E T Rose v Rose . In other words, the powers referred to are authorities to dispose of property or interests in property for the benefit of the donee of the power or of some other person": Cummings v Claremont Petroleum NL (supra), per Brennan CJ, Gaudron and McHugh JJ at page 133. 44 As to the question of whether any of these claims either for final or interlocutory relief fall within the exemption of s116(2)(g) of the Bankruptcy Act thus entitling Mr Rogers to maintain a claim and more particularly a claim for an interlocutory injunction to restrain an exercise of a power of sale by a secured creditor in connection with the property at 13 or 15 Moreton Street, Toogoom, the position seems to be this. In Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591, Kirby P at page 601 made the following observation concerning the phrase "wrong[s] done to the bankrupt": "It is understandable that a person unversed in the principles of statutory construction and unaware of legal authority on the meaning of [the relevant phrase] should have taken the words 'wrong done to the bankrupt' in isolation and concluded as the claimant did about their meaning. However, the words cannot be taken in isolation. They must, in accordance with the ordinary cannons of construction, be read in the context in which they appear." And at page 602, "The exemption [relating to proceedings concerning a wrong done to the bankrupt] is limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors."


case_text: In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon, explained the test to be applied to determine whether the character of the claim is one properly falling within the exemption. His Honour said this, "The plaintiff says that he himself is entitled to prosecute [the claim] under the proviso as an action for personal injury or wrong done to himself. The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property (Wilson v United Counties Bank Ltd (1920) A.C. 102 at pp111 and 128 133)."


case_title: Faulkner v Bluett (1981) 52 FLR 115

case_text: Lockhart J, after considering a number of the early cases and the orthodox approach to a scope of the exemption based upon a wrong done to the bankrupt made this observation in Faulkner v Bluett (1981) 52 FLR 115 at 119: "The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt. Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, the right to sue remains with the bankrupt." 47 Where the claim for final relief arising out of the conduct of a respondent reflects a claim with respect to both the rights of the bankrupt in property and a claim with respect to a wrong done to the bankrupt characterised as a claim by reference to the anxiety, stress and pain felt by the bankrupt, the rights of action in respect of the bankrupt's interests in property vest in the trustee and those rights of action where the essential cause is emotional injury done to the bankrupt (in respect of a recognised cause of action) remain with the bankrupt. 48 It may be that when Mr Rogers or his advisers formulate a statement of claim in the proceeding, a claim might emerge which, in terms of its material facts, reflects a claim within the exemption reliant upon conduct which involves a contravention of ss52 , 51AC or 60 of the Trade Practices Act 1974 (Cth) independently of any of the former rights of the bankrupt in property which have become vested in the trustee. At the moment, the material does not establish any such right. The alleged contraventions of the Trade Practices Act 1974 (Cth), which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee.


case_text: I am not prepared to accept the submission that no question of Federal jurisdiction arises in relation to that matter. If appropriate affidavit material or a properly formulated statement of claim raised a question of relief based upon Federal causes of action such as contraventions of the Trade Practices Act 1974 (Cth) and a question arose justiciable at the suit of Mr Rogers (which presently seems unlikely) concerning compliance by the secured creditor with a State Act and that matter arose from a common substratum of fact giving rise to the Federal claims, the accrued jurisdiction of the Federal Court of Australia would be enlivened: Re Wakim; Ex Parte McNally & Anor [1999] HCA 27 ; (1999) 198 CLR 511 at paragraphs [135] to [150]. 54 The question of whether the secured creditor has complied with pre-conditions to the exercise of power of sale is a matter to be considered by the trustee. So too is the question of whether the secured creditor in publishing advertisements for the sale of the property has mis-described the property at Moreton Street, Toogoom as simply land rather than land upon which a house is built. Ultimately, to the extent that there may be a surplus after realisation of the securities, the trustee has an interest on behalf of the unsecured creditors in that surplus or the interests of the bankrupt in that surplus. Similarly, to the extent that Mr Rogers has an interest in the Fingal Head property, that interest is vested in the trustee and no doubt the trustee would take steps to determine whether an order of the Supreme Court of New South Wales as entered properly reflects the order as made especially if giving effect to the order entered will prejudice the interests of the unsecured creditors. Mr Rogers contends that the order as made by His Honour based upon the notice of motion in the Supreme Court of New South Wales is not reflected in the terms of the order entered by the Respondents. Although Mr Rogers makes the assertion, the relevant material is not incorporated in the affidavit material. In any event, the issue is either one to be agitated by the trustee or a party who holds the interest affected by the conduct, which may be Mrs Lynne Rogers. 55 One further matter raised by the trustee concerns the precise status of the deed of settlement dated 8 September 2005. At the moment in time when Mr Rogers entered into that agreement he remained an undischarged bankrupt. His application for review had at that time been dismissed by Federal Magistrate Baumann, the Stay Order of 15 March 2005 had been discharged and Dowsett J had refused a further motion for a stay pending appeal. At 8 September 2005, when Mr Rogers entered into the deed of settlement, he had no standing to deal with any real or personal property of any description or any estate, interest or profit whether present or future, vested or contingent arising out of or incidental to any such real or personal property. Any rights and powers in relation to that property that would have been exercisable by Mr Rogers had he not become bankrupt, became, upon bankruptcy, property of the bankrupt divisible among the bankrupt's creditors and vested in the trustee. 56 It is not necessary for the present purposes to resolve the question of the status of the deed except to say that to the extent that Mr Rogers seeks to rely upon it as the source of rights, the status of the document further weakens a claim which is not otherwise established on the evidence or as a matter of law. 57 There are discretionary factors which influence whether an order for an interlocutory injunction might otherwise be made. In this case, because the Applicant is an undischarged bankrupt, the undertaking as to damages is essentially meaningless. Secondly, in order to restrain an exercise of a power of sale on the part of a secured creditor, an injunction order would not ordinarily be made unless the amount secured by the mortgage is paid into Court or, in a case where the amount owing is disputed, the undisputed portion of the debt is paid into Court. The Applicant for interlocutory relief is not in a position to make any payment into Court of the monies secured by the equitable charge. 58 For the above Reasons, I propose to dismiss the application for interlocutory relief. 59 I reserve the question of costs. I will seek to deal with those costs at the directions hearing on 4 May 2006. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 20 April 2006 Counsel for the Applicant: The Applicant was self-represented. Solicitor for the Applicant: The Applicant was self-represented. Counsel for the Respondent: Mr Craig Coulsen Solicitor for the Respondent: Mr Sean Whittle, Whittle Lawyers Solicitor for the Trustee of the Estate of Mr Rogers: Mr G W Rodgers, Tresscox, Solicitors Date of Hearing: 18 April 2006 Date of Judgment: 20 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/434.html


case_text: In formulating the application for interlocutory relief and fundamentally, the affidavit material, Mr Rogers "must be able to show sufficient colour of right to the final relief in aid of which interlocutory relief is sought": Gleeson CJ, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; [2001] 208 CLR 199 at 217, paragraph [11] or, "(1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction": Mason A-CJ, Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153. Sir Frederick Jordan in his work C hapters on Equity in New South Wales , 6 th Edition (1947) at page 146 simply put the jurisdiction to make an interlocutory order, in these terms, "the purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit" .


case_title: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148


case_outcome: followed

case_text: The principles upon which an application for enlargement of time in a case such as this should be determined have been the subject of comment in a number of cases. They are most conveniently set out for present purposes in the judgment of Marshall J in Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366 at [9] , where his Honour quoted from the judgment of a Full Court of the Industrial Relations Court of Australia in Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996). The principles so quoted are as follows: '1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.' 15 The second principle quoted by Marshall J in Jennings relates to action taken otherwise than in the Court to contest the termination. There is no material before me suggesting that the applicant has in any way done anything that would have kept the respondent informed of the proposition that he regarded the issue of his termination of employment as still a live one. 16 The next two principles involve the issue of prejudice to the respondent. The respondent attempted to make a case of prejudice arising from the delay. According to its affidavit material, both the principal of Lilydale High School at the time, and the officer who signed the letter of dismissal, are no longer employed by the Department of Education and Training. The affidavit does not say that it is impossible to obtain information from those persons for the purpose of instructing counsel and solicitors in the case. Nor does the affidavit material indicate that those persons will be unavailable to give evidence, or will have no recollection of the circumstances of the dismissal. The affidavit material also says that the respondent discontinued the earlier proceeding in this Court, remitted from the High Court, on the basis that the applicant had not taken any steps to pursue his claim since filing his notice of election on 6 February 2004. The reason for discontinuing the proceeding was that the respondent considered the expenditure associated with prosecuting the proceeding to be unjustified. Counsel for the respondent conceded today that any point that might have been raised in that case, as to want of jurisdiction in the Commission, could be raised in the present proceeding, as to want of jurisdiction in the Court. There appears to me to be no reason why the same point could not be agitated in this proceeding. Given the application of s 347 of the Workplace Relations Act , which would prevent the successful party from claiming costs of a proceeding in most circumstances, it is difficult for me to see how the discontinuance of that earlier proceeding, in reliance on the applicant's failure to institute the proceeding he has now instituted, could be said to amount to prejudice. I therefore proceed on the basis that the respondent has suffered no prejudice, but taking into account the fourth principle from Jennings , which is that the mere absence of prejudice is an insufficient basis to grant an extension of time. 17 The fifth principle relates to the merits of the proceeding. The applicant made it very clear that he is particularly interested in attempting to demolish the validity of the ground that was given as the reason for his termination. That ground, of course, was the making of a false statutory declaration as to prior convictions. I drew to his attention that, even if he were able to establish that that ground was entirely false, that would not itself bring him success in the proceeding. His proceeding in this Court is necessarily confined to the particular grounds that he has raised. Under s 170CK of the Workplace Relations Act , the applicant claims that he was dismissed for reasons that included those found in subs (2)(f) of that section, particularly political opinion, national extraction or social origin. In substance, the applicant claims that he was discriminated against and dismissed in consequence of the fact that he holds his position in the Jewish Defence League, and the fact that he is the illegitimate son of Adolf Hitler, thereby giving rise respectively to the grounds of political opinion on the one hand and national extraction or social origin on the other. 18 There is no doubt that, at the time leading up to the dismissal, there was considerable publicity about the applicant's involvement with the Jewish Defence League and his claims as to his biological origins. The matter was, as the applicant put it, leaked to the Herald Sun newspaper by a fellow teacher, after one of the students at the school had discovered evidence of it whilst researching for a school project on the internet. The Herald Sun sensationalised the issues by suggesting that the applicant was a terrorist, or someone associated with terrorists, working in the school system in Victoria. The matter was also taken up on a radio station, 3AW, by one of its hosts, Neil Mitchell, who apparently interviewed the Minister for Education and Training, Ms Lynne Kosky, and, as the applicant put it, 'seriously embarrassed' her. 22 The sixth of the principles that were considered in Jennings does not appear to be applicable in the present case. 23 It therefore appears to me that I have to decide whether to grant the applicant the extension of time he seeks by balancing, on the one hand, the very long and not very satisfactorily explained delay before commencement of proceedings and, on the other hand, the prospect of success that might arise from the fact that the respondent would carry the onus of proof on the grounds under s 170CK of the Workplace Relations Act . The balance is therefore between the serious lapse of time and the possibility of success, arising from the fact that the respondent has the onus of proof on the crucial issues, and there is some slight evidence that at least the circumstances that the applicant claims were the reasons for his dismissal might have been present in the mind of the decision-maker. It is a difficult balance to make, because it is a balance between two different things. What tips it seems to me to be the relatively inconsequential nature of any relief that the applicant could claim if he were successful. As I have said, in any event, a relatively small amount of money would seem to be all that he could claim successfully, and even that might be subject to questions of duties to mitigate loss and damage, and so forth. 24 As the first of the principles which are quoted in Jennings says, the prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend it. Having regard to the proposition found in the judgment of McHugh J to which I referred earlier, it seems unlikely, in the circumstances of a case such as the present, that it would ever be regarded as equitable to extend a time limit to the extent required in the present case. 25 For those reasons, I refuse to grant to the applicant the extension of time that he seeks. It follows that it will be necessary for me to dismiss his application. 26 The orders that I make are: 1. The application for an extension of time in which to commence the proceeding be dismissed. 2. The application filed on 6 December 2005 be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 19 April 2006 Counsel for the applicant: The applicant appeared in person Counsel for the respondent: C O'Grady Solicitor for the respondent: Maddocks Date of Hearing: 20 March 2006 Date of Judgment: 20 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/420.html


case_text: The principles upon which an application for enlargement of time in a case such as this should be determined have been the subject of comment in a number of cases. They are most conveniently set out for present purposes in the judgment of Marshall J in Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366 at [9] , where his Honour quoted from the judgment of a Full Court of the Industrial Relations Court of Australia in Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996). The principles so quoted are as follows: '1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.'


case_outcome: considered

case_text: I deal first with the lapse of time, and with the question whether there should be an enlargement of time because there has been an acceptable explanation. As I have said the lapse of time involved over one year and nine months from the date when the application should have been filed. A period of that length itself may be sufficient to defeat an application to enlarge time. As McHugh J said in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 (2000) 177 ALR 491 at [16] , when dealing with an application to extend time limits imposed by the High Court Rules in respect of relief under s 75(v) of the Constitution : 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [ [1965] 1 WLR 8 at 12 ], "[t]he rules of court must prima facie be obeyed."... In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.' 9 The applicant's explanation of the delay has involved a number of issues. I accept that he is an unrepresented litigant, with no knowledge of the law. It is clear, however, that he had taken two steps in the Commission, instituting his proceeding there and appealing to the Full Bench, both of which involved time limits. Together with his certificate dated 6 February 2004, the applicant was given a note, making it clear to him that it was incumbent upon him to commence proceedings before an appropriate Court, and that lodgement of a notice of election did not have the effect of commencing any Court proceedings. Perhaps regrettably, the notice did not advise that there was a time limit attached to the commencement of proceedings in the Court, much less what that time limit in fact entailed. 10 The applicant, in his material, was inclined to blame the respondent for failing to give him advice as to the presence of a time limit, or its duration. It was no part of the respondent's function to give the applicant such advice. It was no part of the respondent's function to anticipate that the applicant would wish to bring proceedings in the Court. In particular, it was no part of the respondent's function to encourage the bringing of those proceedings, and the consequent expenditure of public money.


case_outcome: affirmed

case_text: is an appeal from the decision of Scarlett FM made on 16 June 2006 ( SZIIZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 939) dismissing an application for judicial review of a decision of the Refugee Review Tribunal to refuse the appellant a protection visa. The appellant is a national of Pakistan who is a Shia Muslim claiming a well-founded fear of persecution in that country by reason of his association with a group known as the TNFJ. After the refusal of his application by a delegate of the Minister, the appellant lodged an application with the Refugee Review Tribunal. On 21 November 2005, the Tribunal advised the appellant that as it was unable to make a decision in his favour on the information before it, he was invited to an oral hearing. The appellant signed a Response to Hearing Invitation form indicating he did not wish to attend the hearing. Consequently, no hearing was conducted and the Tribunal affirmed the decision of the delegate. Naturally, an important aspect of that finding was the fact that the appellant had not attended the hearing in order to supplement the information which the Tribunal had before it. The appellant then filed an application in the Federal Magistrates Court seeking relief in the nature of prerogative relief to set aside the Tribunal's decision. Scarlett FM affirmed the decision of the Tribunal on 16 June 2006 and it is from that judgment that this appeal is brought. The grounds of appeal are as follows: '... I was born on 06/12/1976 in the city of Mian Channu in district Khanewal of Punjab province Pakistan. I hail from a religious family and we have all the affiliations with Tehrik Nafaed Faqia Jafaria (TNFJ) mian channu district. My father is a head of the Mian Channu TNFJ committee of the TNFJ within the district of Khanewal. As I am a born Shia Muslim and very soon I was a front line worker and preacher of the shia faith within the TNFJ. SSP is also a very strong in our area and they are very strong hardliner militant people and they use to create disturbance in our meeting many times. The SSP workers in Khanewal kidnapped me in the month of February. I was blindfolded and was taken to a place far away from Khanewal city. It was almost a jungle. They took me to a house where I saw the armed men and there the SSP people mercilessly beat me. I need protection for my life because my family in Pakistan facing high level of mental and physical torture I the upcoming hearing I will provide death certificate of my cousin who was killed by the SSP. After that shocking death of my cousin the SSP lodged an police report (FIR) against my brother. This is a vital proof of religious heated Sunni society. I am going through a great level of stress; my family members are hiding because of fear of Sunni hardliners approach. As a Shia Muslim I need a protection visa.' The grounds do not identify or isolate any error in the judgment of the learned Federal Magistrate and identify no ground of appeal in a conventional sense at all. The appellant's written submissions do not fill that gap but expand further upon the factual bases for the claim to a protection visa and, as with his oral submissions, seek to invite this Court to consider fresh material as, indeed, the appellant had also invited the learned Federal Magistrate to consider fresh material.


case_text: The second ground of appeal contends that the Tribunal failed to perform the statutory duty imposed by s 424A of the Act. As the Federal Magistrate found, the Tribunal's decision turned on the Tribunal's assessment of the appellant's evidence at the hearing and did not rely upon any information which fell within the scope of the obligation in s 424A(1). His Honour found the Tribunal was not required to give written particulars of the information referred to under the heading 'Country Information' because that material fell within the exception in s 424A(3)(a) of the Act: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. I agree with the conclusion and reasoning of the Federal Magistrate.


case_text: The first ground of appeal asserts that the Tribunal was biased because it did not believe, and failed to consider, the appellant's claims. I agree with the Federal Magistrate's finding, that there is no basis to conclude that the Tribunal's decision was affected by actual or apprehended bias: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 ; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102.


case_title: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592

case_text: Mr Jordan of counsel, who appeared for the first respondent, brought to my attention the High Court of Australia decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (' SZBEL '), and indicated that in light of s 422B of the Act (which did not apply in SZBEL but does in this appeal) the principles enunciated by the High Court of Australia may not be relevant to my considerations. I need not examine this issue because in my view, at the hearing, the Tribunal did identify the issues upon which its decision was based and gave the appellant the opportunity to address the issues and make submissions. Accordingly, there is no basis upon which to find the Tribunal breached procedural fairness in circumstances such as those in SZBEL assuming that the principles enunciated therein apply to this appeal. 11 I will therefore order that the appeal be dismissed. I will also make orders that the title of the first respondent be changed to Minister for Immigration and Citizenship and the Tribunal be joined as the second respondent to this appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 20 February 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 February 2007 Date of Judgment: 14 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/155.html


case_title: SZHPY v Minister for Immigration & Multicultural Affairs [2006] FMCA 1273


case_title: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102


case_text: As I have already indicated, the appellant did not attend Court this morning. There were no submissions made by anyone on his behalf. The allegation of bias made here is a fresh allegation. That allegation was not agitated before the Federal Magistrate. It is a serious allegation which must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). It must also be borne in mind that bias on the part of the Tribunal will rarely be demonstrated or apparent from the Tribunal's written reasons alone (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ).


case_title: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358


case_text: The remaining grounds raised in the Notice of Appeal have not been made out. There is no suggestion in any of the material before me that the learned Federal Magistrate behaved unfairly vis-à-vis the appellant or that there was anything unfair in the decision by the Federal Magistrate to deliver judgment ex tempore. Such a proposition would ordinarily be difficult to establish (see SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280). 17 The last ground is really a ground which seeks to re-agitate the merits of the Tribunal's decision, a course which is impermissible in this Court. 18 For these reasons, in my view, there was no jurisdictional error committed by the Federal Magistrate. Accordingly the appellant's appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 18 November 2008 The Appellant did not appear Counsel for the First Respondent: Ms SA Sirtes Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1709.html


case_text: Federal Magistrates Court exercised jurisdiction to judicially review the decision of the Tribunal. The appeal to this Court is to correct error in the decision of the Federal Magistrates Court. The ground of appeal sought to be relied upon does not relate to any such error. Furthermore, the ground involves a question of fact not raised before the Federal Magistrates Court. The application to amend is misconceived ( Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1). The application to amend is refused.


case_text: consequence is that the case for the appellants stands or falls upon the use by the Tribunal of country information concerning document fraud in Bangladesh without having complied with s 424A in relation to that information. That basis was rejected by the learned Federal Magistrate, based upon Full Court authority in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. Counsel for the Minister submits that authority since then has confirmed that position. It is sufficient to refer to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.


case_title: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92


case_text: awaited the judgment of the Full Court in SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCA 214 before coming to my decision and gave the parties the opportunity of making submissions in light of that judgment. Counsel for the appellants then sought leave to further amend the notice of appeal by taking one ground as follows: '1. The Tribunal constructed a jurisdictional error when it failed to comply with s 424A of the M igration Act 1958 Cth Particulars (a) The Tribunal considered the following information was part of the reason for affirming the decision of the delegate to refuse the applicants protection visas: (i) The applicant husbands education and employment history provided in the protection visa record. (b) The Tribunal did not disclose the particulars of the information to the applicants in writing. (c) The information was not exempted from disclosure by s 424A(3)(b). (d) The information was specifically about the applicant husband.' The amendment was opposed on two bases. Firstly an entirely new point should not be permitted to be raised at this stage of an appeal in judicial review proceedings. Secondly the proposed ground raises a question of fact, namely, what was provided by or on behalf of the appellants to the Tribunal for the purposes of s 424A(3)(b). Counsel for the appellants submitted that it can be deduced from a reading of the decision of the Tribunal, taken with the documents which were before the Tribunal, that it had relied upon material supplied only in the visa application. However, counsel for the Minister correctly points out that that conclusion cannot be drawn in the absence of a transcript of what took place before the Tribunal. If the issue had been raised in the Federal Magistrates Court, the factual issue could and would have been properly investigated.


case_title: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178


case_text: Magistrate treated this as a complaint that the Tribunal placed too much weight on the findings of fact upon which it based its conclusion that the applicant's evidence was not credible. I think that is the correct complexion to put upon this ground. But again it is not a procedural fairness complaint. In any event, the Magistrate rejected it because the Tribunal's findings on which its conclusion on credibility were based were open to it on the evidence. After referring to a number of authorities on findings as to credibility, his Honour said at [28] that the Tribunal had not failed to use, or had palpably misused, the advantage it had of having heard and seen the applicant give evidence. Nor had it acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Nor were the probabilities strongly against the findings it made in rejecting the applicant's evidence. See W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] . In connection with this ground the applicant asserts a breach by the Tribunal of s 414 of the Migration Act 1958 in not assessing her claims in the manner the section requires. Section 414(1) requires the Tribunal to review a valid application for review of an RRT-reviewable decision. The Magistrate correctly rejected this complaint. He said at [49]-[50]: the RRT performed its duty under s 414 to consider the claims made by the applicant and the evidence before it. The RRT considered the evidence of the applicant given to the Department and the oral evidence given at the hearing. The RRT considered and accepted her claim that, as a Hindu, the applicant genuinely cares about the welfare of cows and may have assisted her grandfather in this regard. However, the Tribunal rejected the rest of the applicant's claims. Those findings were open to it on the evidence before it ... This ground is an attempt to review factual findings by the Tribunal which is not open to a Court conducting judicial review. No error has been shown in the Magistrate's rejection of reliance on s 414. The Tribunal carefully considered her claims and the evidence she provided in support of them. There is no doubt that it "reviewed" the Tribunal's decision as required by s 414. No error has been shown in the Magistrate's rejection of ground 1.2. There is no prospect that the applicant would establish this ground on an appeal. Ground 2 is that the Magistrate was in error in not determining that the Tribunal acted in a manifestly unreasonable manner when dealing with the applicant's claims because of its failure to consider them in accordance with Article 1(A)(2) of the Refugee Convention and "ignoring the aspect of persecution or serious harm in terms of s 91R of the Act". There is no substance in these complaints. The Magistrate pointed out, correctly, that at the beginning of its reasons the Tribunal set out the relevant law, the definition of refugee in Article 1(A)(2), and key components of the definition. It then dealt with the applicant's claims in accordance with the relevant criteria before concluding at [64] that it was not satisfied that she is a person to whom Australia has protection obligations.


case_text: 3 is that the Magistrate was in error in not determining that the Tribunal fell into jurisdictional error in failing to request more information regarding the applicant's activities in the Gitaben Rambhia Trust from the Trust itself. The Magistrate dismissed this complaint. In reliance on High Court and Full Court authority he observed that there is no obligation on the Tribunal to obtain further information. Section 424 empowers the Tribunal to obtain information, but it does not have a duty to investigate an applicant's claims. See SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [61] . This ground has no prospect of success. In her written submissions the applicant asserts another claim of want of procedural fairness, in that at [55], [57]-[59] and [61]-[62] of his reasons the Magistrate "failed to address the mandatory nature of the requirements of [s 65(1)], and in effect applied the test of compliance with the common law rules of natural justice to a statutory scheme". The Magistrate's reasons conclude at [59]. None of the paragraphs relied on deal with procedural fairness. However at [16] his Honour stated that s 422B(1) provides that Division 4 is an exhaustive statement of the natural justice hearing rule, and that no breach of that Division had been shown. The applicant's complaint that the codified natural justice scheme was not applied is baseless.


case_text: her written submission's the applicant claims that the Tribunal in failing to make specific findings failed to reach the required state of satisfaction or non-satisfaction as required by s 65(1). This complaint has no basis in fact. The Tribunal made specific findings about the claims and evidence before it. As it explained at [57] to [63] of its reasons, it did not accept most of those claims and evidence. The Magistrate said, correctly in my view, that once the Tribunal had found that the applicant did not satisfy the criteria for a visa, it was not required to make findings on all other matters that may have been raised in evidence. A Tribunal is not required to refer in its reasons to every item of evidence before it. Thus a failure to refer to a particular piece of evidence does not require a conclusion that it has been overlooked: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] . I need not pursue this matter further, because the applicant provided no particulars of the specific findings she said the Tribunal should have made.


case_text: my view none of the grounds in the draft notice of appeal or the written submissions has any prospect of success. All of them are quite without merit and would be bound to fail if an extension of time within which to appeal were granted. They have been propounded without any reference to the contents of the reasons of the Magistrate from whose decision the applicant seeks leave to appeal. Accordingly I refuse to grant an extension because it would be pointless to do so. Cf SZJDA v Minister for Immigration and Citizenship [2008] FCA 1093. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 21 August 2009 The applicants appeared in person Counsel for the First Respondent: David Brown Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 18 August 2009 Date of Judgment: 21 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/909.html


case_text: The principles to be applied in dealing with an application such as the present are laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 10 In my opinion the learned Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. Moreover, were leave to be granted to appeal, there is no prospect that the applicant could succeed on the grounds on which he seeks to rely. 11 The application should be refused with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 16 February 2007 Counsel for the Appellant: Applicant appeared in person Counsel for the Respondent: Ms S Zarucki Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 February 2007 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/143.html


case_text: The fourth ground asserts that the Tribunal's findings were biased. There is no basis upon which I can conclude that the allegation of bias is 'distinctly made and clearly proved': Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 531, [69] per Gleeson CJ and Gummow J. There is simply no evidence to support such a contention. 23 As no arguable basis on which an appeal might succeed has been raised, the present application should be dismissed with costs. I will allow the first respondent to be correctly names at as the Minister for Immigration and Citizenship. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 20 February 2007 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 February 2007 Date of Judgment: 15 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/157.html


case_text: In relation to the first ground, I agree with his Honour that there was no error of law in the Tribunal's finding that the applicant could relocate in India as it found that the persecution claimed to be suffered by the applicant was localised in rural areas. The Tribunal correctly applied the principles identified by Branson J in SYLB v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 87 ALD 498, and assessed the personal considerations of the applicant to find that he could reasonably be expected to relocate within India. Therefore, no error arises in that regard. 19 The second purported ground of appeal alleges that s 424A of the Act was not applied correctly. I agree with the Federal Magistrate's finding that there was no breach by the Tribunal of s 424A. As his Honour found at [25], the information relied upon was independent country information, which falls within the exceptions in s 424A(3)(a) because it is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Furthermore, as his Honour noted, the Tribunal did put matters relating to the independent country information to the applicant at the hearing. 20 The three further grounds were not raised before the Federal Magistrate but can be considered on their merits. The third and fifth purported grounds in substance allege the same error and so I will consider the allegations together. As I have found above, the Tribunal put the independent country information to the applicant at the hearing. Even though it was not required to put such information to the applicant according to the exception in s 424A(3)(a) , the Tribunal clearly put the applicant on notice that it would be considering the independent country information and in these circumstances there can be no breach of procedural fairness or natural justice. 21 Further, I do not need to consider any common law rules relating to natural justice as s 422B of the Act was in force at the time the applicant made his application to the Tribunal on or about 10 June 2005.


case_text: The Federal Magistrate held that reg 2.07 only requires substantial compliance with the directions in Form 866, not strict compliance (cf Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393). The Federal Magistrate held that significantly more than the "bare bones" of the appellant's claims were provided with the protection visa application and that there had therefore been substantial compliance.


case_text: Section 47 is included in Subdiv AA. It follows that non-compliance by the Minister with s 47(3) does not mean that the decision to refuse to grant the visa is not valid. In Minister for Immigration and Multicultural and Indigenous Affairs v WAIK (2003) 79 ALD 152, the Full Court was concerned with an application for a protection visa which was said to have been signed by a person under the age of 18 and therefore was not a valid application because it was not completed in accordance with the directions on the form (Form 866). The Full Court said at [29]-[31]: 29 However, s 69(1) is explicit so far as the requirements of subdiv AA and subdiv AB are concerned. In the light of s 69, it cannot be said that the application for a protection visa signed by the Applicant was a nullity simply because he did not complete it in accordance with the directions contained on it. No suggestion was made on behalf of the Applicant that he did not understand the nature of the application or that he did not have the capacity, even if he was under 18, to make an application for a protection visa. The only contention was that, because the application form was not completed in accordance with the directions contained on it, it was not a valid application by reason of the operation of reg 2.07(3) and that, accordingly, the Minister was prohibited, by s 47(2), from considering the application since it was not a valid application. 30 If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69. The decision of the Minister's delegate purporting to reject the application is a valid decision, even if it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1): see Thayananthan v Minister for Immigration and Multicultural Affairs [2001] FCA 831 ; (2001) 113 FCR 297 at 33 [26] and Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324 ; (2002) 122 FCR 578 at 593 [49] . 31 The Tribunal had jurisdiction to review the decision of the Minister's delegate under s 411(1)(c) because it was a decision to refuse to grant a protection visa. The fact that the Minister was prohibited by s 47(2) from considering the application, assuming that it was not a valid application, does not mean there was no decision within the meaning of s 411(1)(c). Whether or not the Minister was prohibited from considering the application, the Minister's delegate did so and made a decision to refuse a protection visa. There was no jurisdictional error on the part of the Tribunal even if the Applicant was under 18 and the application was not a valid application within the meaning of s 46 of the Act. That decision is both on point and binding.


case_text: The Federal Magistrate held that the appellant signed the statutory declaration although she was not aware she was signing a statutory declaration. He found that she did not read or speak English and that the statutory declaration was not translated to her. The Federal Magistrate held that as the appellant had an agent who was authorised to act for her at the time the form was completed and lodged, and that the appellant signed the form in three different places, there was substantial compliance, notwithstanding any deficiencies in the completion of the statutory declaration (cf NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199). In addition, he held that Parliament could not have intended such strict compliance, that the deficiencies noted in the statutory declaration would invalidate the application. He found the protection visa application to be valid. There was, therefore, no jurisdictional error. 20 In addition, the Federal Magistrate held that the Tribunal decision was a privative clause decision and, for that reason as well, the application had to be dismissed. That would, of course, follow from his first finding that there was no jurisdictional error. In the further alternative, he held that had he found any jurisdictional error, he would not have been minded to grant relief in the circumstances of the case as "the applicant effectively sat on her hands for three years after she made her protection visa application, doing very little to follow it up." 21 Finally, he noted that the migration agent had "handled the applicant's protection claim in a most unsatisfactory and unprofessional way" and therefore directed the Registrar of the Court to refer the papers in this matter to the Migration Agents Registration Authority. 35 A similar result was reached in NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199. In that case, the Full Court said at [17]-[18]: 17 We do not consider that the requirement in Reg 2.07 that the approved form must be completed 'in accordance with any directions on it' necessitates that any departure from those directions spells invalidity for an application. It is unlikely to have been the purpose of the legislation: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 390-391; to require the automatic invalidity of a visa application that an applicant has caused another to complete: cf s 98; but which is unsigned, for example, because of the paralysis of the applicant or, for that matter, of the oversight of the applicant or of his or her agent: cf Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 at [32] . 18 We do not consider that the irregular manner of filling in and signing of the false application resulted in the invalidity of the application. It was a false application but it was, in formal terms, a valid application.


case_outcome: distinguished

case_text: In this case, there is no suggestion that the final application submitted to the delegate contained other than the substance of the appellant's complaints. This is also not a case like SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , where the appellant was advised of the hearing and advised not to attend. Although she said she did not receive the invitation to hearing, the evidence was that it was sent to both her agent and herself. The letter sent to her was not returned. 28 The only question in this case is whether the signing of the blank application means that the application was invalid. 29 Section 47(1) of the relevant Act requires the Minister to consider a valid application for a visa. Section 47(3) precludes the Minister from considering an application that is not a valid application. Section 65 requires the Minister, after considering a valid application for a visa, to grant the visa (s 65(1)(a)) or refuse to grant the visa (s 65(1)(b)). Section 46 addresses the requirements for a valid application for a visa. Regulation 2.07(3) of the Regulations provides that an applicant must complete an approved form in accordance with any directions on the form. The prescribed form for a Protection (Class XA) visa is Form 866. That form provides for a statutory declaration to be completed by the applicant. 30 The Minister contended that the failure of the appellant to complete the form did not mean that the application was not valid. Section 98 provides that a non-citizen is taken to have filled out his or her application form "if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf." 31 In this case the application was filled out by the appellant's migration agent's secretary from information supplied by the appellant. I think the Minister's contention in that regard must be accepted. The application may be taken to have been filled in by the applicant. 32 The appellant said in her submissions to this Court that she signed the blank application in the presence of the migration agent's secretary. In her evidence before the Federal Magistrate she suggests, without making it clear, that she signed the blank application in the migration agent's presence. The appellant's signature is witnessed by a person who has identified himself or herself as a "JP". The migration agent did not witness the appellant's signature. However, there is no evidence that the migration agent's secretary is not that person or not a "JP". There is, therefore, no evidence that the application was not signed in accordance with the form's own instruction. 33 Even if there were, the Minister says that the decision made by the delegate of the Minister and the Tribunal are still valid. Section 69 of the Act provides: (1) Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. (2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.


case_title: SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393


case_text: The appellant did not have to strictly comply with reg 2.07 to create a valid application. Substantial compliance was sufficient: Bal v Minister for Immigration & Multicultural Affairs 189 ALR 156; Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245. 37 It follows that the appellant's application was a valid application. It follows that both the delegate's decision and the Tribunal's decision on review were authorised by the Act. That was the conclusion of the Federal Magistrate. No error has been demonstrated. 38 The appeal must be dismissed and the appellant must pay the respondent's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 5 September 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Blake Dawson Waldron Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 20 August 2007 Date of Judgment: 5 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1338.html


case_title: Jess v Scott (1986) 12 FCR 187

case_text: There is unquestionably a discretion to extend time if " special reasons " be shown. That expression in r 15(2) describes a flexible discretionary power, but a power requiring an applicant to nonetheless justify a departure from the ordinary rule prescribing a period of 21 days: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195: It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 5 The explanation for the delay provided by the Applicant is simply that he was unaware of the 21 day period. 6 Had consideration been confined simply to the short extension of time required, the discretion could well have been exercised favourably to the Applicant. The explanation provided is, with respect, not satisfactory. But, as was recognised by the Full Court, a less persuasive explanation may be required when the extension required is for a comparatively short period of time.


case_text: Consideration, however, is not confined to such matters. Consideration may also be given to the prospects of success of the Applicant should an extension be granted: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385 , 79 ALD 154; Kalanje v Minister for Immigration & Multicultural Affairs [2006] FCA 1618.


case_title: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786


case_title: WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385 , 79 ALD 154


case_title: Alister v The Queen (1984) 154 CLR 404

case_text: an objection to the production of documents in answer to a subpoena is based upon a claim of public interest immunity, the usual practice—established many years ago—has been for the grounds of the claim to be set out and explained in an affidavit made by either the Minister who is the political head of the particular department concerned or the Secretary of that department ( Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 43). The weight to be afforded to that affidavit is governed to some degree by the extent of the knowledge which the deponent possesses concerning the documents which are the subject of the claim ( Sankey v Whitlam 142 CLR at 44). The knowledge of those documents which must be considered comprises not only knowledge of the contents of the documents but also knowledge of the circumstances in which they came into existence. When the claim is based partly or wholly on national security grounds, very considerable weight must be given to the views of the responsible Minister or the permanent head. In the present case, because we live in dangerous times and matters of national security are at the forefront of the ONA's responsibilities, very considerable weight must be given to the views of the Director-General expressed, as they were, on his oath ( Alister v The Queen (1984) 154 CLR 404 at 435). Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).


case_text: seems to me that it is sufficiently "on the cards" that there may be something in the 15 redacted reports shown to Mr Cole which, either alone or in combination with other evidence, might advance the case which AWB seeks to put in answer to the allegations made against it by the applicants in the present proceedings in pars 26, 27(a) and 28 of the Second Further Amended Statement of Claim. The "on the cards" test is explained by the NSW Court of Appeal in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [58] [80]. However, given that the remaining 47 reports were read and considered by lawyers assisting the Cole Inquiry and not thought by them to be of sufficient relevance and importance to be passed on to the Commissioner himself for his consideration and given the clear evidence of the Director-General set out in pars 18 and 19 of his affidavit sworn on 17 August 2009 (which I have extracted in full at [25] above), I do not think that it can fairly be said that it is "on the cards" that there will be information and material in the remaining 47 reports which might advance AWB's case in defence of the allegations made in pars 26, 27(a) and 28 of the Statement of Claim. Accordingly, in my view, AWB has failed to demonstrate that the 47 reports not seen by Mr Cole are or may be of sufficient importance to its case that the Court should undertake the exercise of balancing the public interest in withholding production against the public interest in the administration of justice. Accordingly, it has failed to satisfy the threshold question posed in respect of those 47 reports.


case_text: of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).


case_text: Commonwealth v Northern Land Council (1991) 30 FCR 1 at 31, a Full Court of this Court said: Threshold criteria for the balancing process When a claim for public interest immunity is raised, there may be a threshold question to be resolved by the court. That is whether the documents in question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve their inspection, of balancing the public interest in withholding production against the public interest in the administration of justice. The Commonwealth submitted that before the "balancing process" described in Sankey v Whitlam was undertaken this Court had to be satisfied, as a matter of likelihood rather than mere speculation, that the materials in question would contain evidence for tender at trial. The Council denied there was any such requirement imposed upon it. We agree there is no requirement in the terms contended for by the Commonwealth.


case_title: Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910


case_text: present application involves the application of the relevant principles at the earliest stage of the Court's processes designed to ensure that relevant evidence is brought to Court and is available for tender. The claim of public interest immunity is being made in order to justify the excusing order which the ONA seeks. Such a claim is governed by the common law ( Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 516519 and at 564 566; Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at [16] (p 571); [135] (p 606); [199] (p 624); and R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [37] (p 691); [50] (p 692); [217] (p 721); [318] at (p 741); and [345] (p 747)).


case_title: Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553


case_text: of the 62 reports are classified Top Secret . The remaining 17 are classified Secret . These classifications significantly restrict access to those documents within the Government and prevent disclosure outside Government circles. Many of the documents carry other classifications which cannot themselves be disclosed. Three grounds of substance are advanced by the ONA in support of its claim for public interest immunity. These are: (a) Disclosure of the contents of the 62 reports would prejudice Australia's national security; (b) Disclosure would damage our relations with other countries; and (c) Disclosure would enable interested parties to conduct what is called in the intelligence community, a mosaic analysis , which might lead to an accurate picture of a relevant state of affairs being conveyed accidentally because an informed and interested reader of disparate pieces of information may be able to piece together a picture which would not readily present itself to less informed and less interested persons. Ground (a) Prejudice to National Security The Director-General testified that disclosure of any part of the 62 reports would: Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).


case_text: an objection to the production of documents in answer to a subpoena is based upon a claim of public interest immunity, the usual practice—established many years ago—has been for the grounds of the claim to be set out and explained in an affidavit made by either the Minister who is the political head of the particular department concerned or the Secretary of that department ( Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 43). The weight to be afforded to that affidavit is governed to some degree by the extent of the knowledge which the deponent possesses concerning the documents which are the subject of the claim ( Sankey v Whitlam 142 CLR at 44). The knowledge of those documents which must be considered comprises not only knowledge of the contents of the documents but also knowledge of the circumstances in which they came into existence. When the claim is based partly or wholly on national security grounds, very considerable weight must be given to the views of the responsible Minister or the permanent head. In the present case, because we live in dangerous times and matters of national security are at the forefront of the ONA's responsibilities, very considerable weight must be given to the views of the Director-General expressed, as they were, on his oath ( Alister v The Queen (1984) 154 CLR 404 at 435). The Director-General of the ONA has read all of the 62 reports. He has also read the confidential affidavits (one, as sworn, and the other in final draft form, but not yet sworn). It is apparent from the terms of his affidavits that the Director-General has also relied upon information conveyed to him by his staff as to the circumstances in which the Cole distillation came into existence. It is generally to be expected in cases such as the present that the relevant deponent will testify that he has read all of the documents for which the immunity is claimed ( Sankey v Whitlam 142 CLR at 43 44; 96 and 108). The deponent will also need to explain why the disclosure of the documents is detrimental to the proper functioning of the Executive Government and of the Public Service (if appropriate). At [27] above, I have summarised the bases upon which the ONA seeks to claim public interest immunity in respect of the 62 reports and the distribution lists. Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617). In Commonwealth v Northern Land Council (1991) 30 FCR 1 at 31, a Full Court of this Court said: Threshold criteria for the balancing process When a claim for public interest immunity is raised, there may be a threshold question to be resolved by the court. That is whether the documents in question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve their inspection, of balancing the public interest in withholding production against the public interest in the administration of justice. The Commonwealth submitted that before the "balancing process" described in Sankey v Whitlam was undertaken this Court had to be satisfied, as a matter of likelihood rather than mere speculation, that the materials in question would contain evidence for tender at trial. The Council denied there was any such requirement imposed upon it. We agree there is no requirement in the terms contended for by the Commonwealth. Counsel for AWB submitted that, given that the Cole distillation was in the public domain, it was unreal for the ONA to press its claim for public interest immunity in respect of these documents. It is not a question of waiver, for public interest immunity cannot be waived. However, once the contents or the substance of the contents of a document have been disclosed, there is no longer any reason to deny to the Court access to that document if it provides evidence that is relevant and otherwise admissible ( Sankey v Whitlam 142 CLR at 45). The public interest in non-disclosure would either be much reduced or destroyed by the prior publication of the contents of the document ( Sankey v Whitlam 142 CLR at 64). The only argument or ground advanced by the ONA which might survive the fact that the Cole distillation has been made public is the argument advanced under the heading "mosaic analysis". I do not think that the other two grounds advanced by the ONA now have much weight in light of the fact that the substance of the 15 redacted reports was disclosed to the public at large in the Cole distillation. Any angst felt by Australia's foreign intelligence partners will not be as great as it was in 2006 and, given the way in which the Cole distillation was compiled, there is little chance that production to the Court of the 15 redacted reports and the distribution lists relevant to those reports will harm national security. The ONA submitted that, notwithstanding the publication of the Cole distillation, the revelation of the actual contents of the redacted 15 reports shown to Mr Cole may well lead to a mosaic analysis being carried out by undesirables, thus threatening Australia's security and its national interests in the manner adumbrated by the Director-General of the ONA and by the deponents of the confidential affidavits. I do not accept this submission at the moment. Production to the Court for the purposes of inspection and further consideration of the ONA's claims cannot have the effect suggested by the ONA. Nor do I accept that I should further limit production by reference to a shorter period of time than that covered by the 15 reports.


case_text: In the present case, the evidence which has been filed establishes, at a sufficient level for these purposes, the existence of the trade marks and the importation of the goods without the consent of the proprietor of the trade marks. I am satisfied at that level that the volume of importation is such that it would be inconsistent with personal use that it is commercial in nature (cf Jemella Australia Pty Ltd v MacKinnon [2008] FCA 1022 at [25] ) .