case_title: Ireland v The Queen (unreported CCA Sup Ct of A, Library Number 9401656, 6 May 1994)

case_text: applied to the trial judge for restitution orders under s 717 of The Criminal Code (WA). Those orders were made on 20 August 1993. They took the form of orders directing the transfer of moneys and assets to Norilya from accounts and companies apparently controlled by the prospectors. The prospectors each lodged an appeal against their convictions to the Court of Criminal Appeal. Enforcement of the restitution orders was stayed. However the appeals were dismissed on 6 May 1994 Ireland v The Queen (unreported CCA Sup Ct of WA Library Number 9401656, 6 May 1994). The restitution orders made were thereafter enforced. Norilya recovered $5,782,556.94 upon the execution of the orders. Norilya commenced proceedings in the Supreme Court of Western Australia on 14 August 1990 against the prospectors. In their defence to the civil action filed 3 December 1990, the prospectors denied that the samples submitted for assay from the phase 2 and phase 3 drillings contained gold which had been added to those samples. In August 1993 Norilya applied for summary judgment in the civil action in reliance on the convictions of the prospectors. Summary judgment, for damages to be assessed, was granted against each of the prospectors in August 1994. The calculation of the damages in that case would, of course, have had to take account of sums received under the restitution orders.


case_outcome: cited

case_title: Easterday v R (2003) 143 A Crim R 154

case_text: 1998 the prospectors lodged a petition for the exercise of the Royal Prerogative of Mercy. The petition was referred to the Court of Criminal Appeal by the Attorney-General pursuant to s 140(1) of the Sentencing Act 1995 (WA). Such a petition is to be heard and determined under the section as if it were an appeal against the convictions. Upon the hearing of the petition the Court quashed the convictions of each of the applicants on 28 March 2003 Easterday v R (2003) 143 A Crim R 154. The result turned upon non-disclosure by the Crown of a document relating to share trading patterns in the market at the relevant time which might have pointed to other persons as responsible for the alleged salting of the assay samples. The failure by the Crown to disclose the report to the defence in a timely fashion was found by Scott J to have put the prospectors in the position where a relevant line of investigation could not be pursued. He was of the view that the Crown's case was a very strong circumstantial evidence case but that notwithstanding that the appeal should be allowed. Steytler J observed (at [233]): the hearing of the appeal before us, the appellants sought to mount a case which was rather different to that advanced by them at trial. They acknowledged that salting had occurred. They conceded that the evidence was overwhelming in that respect. However, they advanced the proposition that it was not them who had salted the tenements and that the fresh or new evidence now available demonstrates that others had both the motive and opportunity to do so. They contend that the absence of this fresh or new evidence at the trial and at their previous appeal deprived them of a real chance of acquittal which would otherwise have existed.'


case_text: Court of Criminal Appeal, in a judgment published on 10 June 2005, declared the restitution orders to be null and void. It also held that it had a discretionary power to order the repayment of moneys paid pursuant to a restitution order. The Court gave the parties the opportunity to make submissions as to further orders that should be made Easterday v State of Western Australia (2005) 30 WAR 122.


case_title: Easterday v State of Western Australia [2005] WASCA 202

case_text: 28 October 2005, following submissions, the Court said it would further order that Norilya repay to each of the prospectors the amount received by it from that prospector pursuant to the making of the restitution orders. An application for a stay by Norilya was dismissed. Steytler J said: seems to me that in this case, too, the effect of a stay would be that the applicants would not be restored to all that was lost by them as a consequence of the erroneous judgment ... Instead, Norilya would be allowed to benefit from the judgment by retaining money which it would not otherwise have held and to which it has yet to establish any entitlement ... The position would, in reality, be no different than if the Court had declined to make orders for restitution pending the outcome of the civil action. That being so, and given the potential prejudice which that course might work upon the applicants (as a consequence, at least, of what would then be their inability to resort to any funds, which might otherwise have been repaid by Norilya, for the purpose of funding their defence of the civil action), and given also that no other basis has been put forward to support the imposition of a stay, it seems to me that it would be inappropriate to order a stay and I would decline to do so.' v State of Western Australia [2005] WASCA 202 (at [16]) The formal order of the Court of Criminal Appeal required Norilya to repay to Mr Ireland the sum of $1,898,703.33. The judgment for damages which had been entered against each of the prospectors in the civil action in the Supreme Court was set aside by consent on 7 December 2005. Mr Dean Ireland had lodged a debtors petition on 13 March 1995 pursuant to s 55 of the Bankruptcy Act . He became bankrupt on that date. Norilya lodged a proof of debt in the bankrupt estate for the amount of $980,945. This was for the difference between loss and damage suffered by Norilya and the total amount recovered by it from the prospectors under the restitution orders. On 12 April 1996 Norilya received a distribution of $42,430.75 in the bankrupt estate. Mr Ireland was discharged from bankruptcy with effect from 14 March 1998. The civil action in the Supreme Court of Western Australia was commenced between Norilya (then Noranda) and the prospectors on 14 August 1990 by writ of summons. The indorsement on the writ stated that: Plaintiff's claim is for damages for fraudulent misrepresentation, alternatively damages for misleading or deceptive conduct pursuant to sections 10 and 77 of the Fair Trading Act 1987 arising out of representations made by the defendants in or about May, June or July 1990 concerning certain mining tenements near Mt Gibson.'


case_text: of a bankrupt does not spell the end of the trustee's duties to distribute to creditors such property as remains vested in the trustee. Property, including choses in action, which has vested in a trustee by reason of bankruptcy continues to be so vested after the discharge of the bankrupt. The release provision, s 153(1) , does not revest in the bankrupt property previously vested in the trustee Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178. In that case the Court of Appeal of New South Wales held that a right of action which the former bankrupt had to challenge certain orders of the Industrial Commission, remains vested in his trustee. It would seem to be implicit in the continuing responsibility of the trustee for the distribution of the former bankrupt's estate to creditors, in respect of provable debts, that the leave requirement under s 58(3) remains in place to the extent that there is a dispute about the existence of such a debt. Such leave could authorise a resolution of that dispute in separate proceedings. The leave requirement is not expressly limited in time. Section 58(3) refers to the period '... after a debtor has become bankrupt'. It may be noted that the definition of 'bankrupt' in s 5 of the Act means a person: who has become a bankrupt by virtue of the presentation of a debtors petition;' Provisions of the Act relating to 'a bankrupt' are not therefore temporally limited by that term Official Receiver v Todd (1986) 14 FCR 177 in which it was held that liability to examination under s 81(1) of the Bankruptcy Act does not expire upon discharge. It would seem that in all but the most unusual cases, of which this is one, questions of the kind raised here would not arise in any practical sense.


case_title: Official Receiver v Todd (1986) 14 FCR 177


case_text: is concerned that the discharge of Mr Ireland from bankruptcy does not excuse it from the requirement to seek leave to prosecute its claim for fraud in the civil action. It is concerned, moreover, that the claim for fraud may arguably be a claim for liquidated damages comprising the purchase price paid by it to Mr Ireland at the direction of Acarus to acquire a 30% interest in the tenements. So the damages claim, albeit based in fraud, may give rise to a 'provable debt' within the meaning of s 82. To the extent that the claim seeks recovery of moneys paid by way of the purchase price for the tenements, it is arguably a claim for liquidated damages. As was said in Spain v Union Steamship Co of New Zealand Limited [1923] HCA 21 ; (1923) 32 CLR 138 (at 142 per Knox CJ and Starke J): is well said by Mr Odgers (Pleading and Practice, 5 th ed, p 41), "whenever the amount to which the plaintiff is entitled ... can be ascertained by calculation or fixed by any scale of charges, or other positive data, it is ... liquidated".' On the other hand, in Cornelius v Barewa Oil and Mining NL (In liq) (1982) 42 ALR 83 Burt CJ observed that (at 84): claim for damages for fraudulent misrepresentation remains a claim or demand for unliquidated damages even if the relief as claimed is for a liquidated amount.'


case_text: contends that by reason of the High Court's decision in Coventry v Charter Pacific Corporation Limited [2005] HCA 67 ; (2005) 222 ALR 202, an action for unliquidated damages for misleading and deceptive conduct does not give rise to a provable debt. This is of course subject to the qualification that the claim arises 'other than by reason of a contract, promise or breach of trust'. In Coventry the High Court was concerned with an action for misleading or deceptive conduct under s 995(2) and s 1005 of the Corporations Law (Qld). The Court held by majority that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract with some party other than the bankrupt but not with the bankrupt is not a provable debt for the purposes of s 82. In the joint judgment of Gleeson, Gummow, Hayne and Callinan JJ (at [6]) their Honours said: reasons demonstrate that a statutory claim for unliquidated damages for misleading or deceptive conduct which induced the claimant to make a contract not with the bankrupt but with a third party is not a debt provable in bankruptcy. It is a demand in the nature of unliquidated damages arising otherwise than by reason of a contract or promise. The bankrupt is not discharged from liability. The claim may be pursued by the claimant during the bankruptcy and after discharge from bankruptcy. By contrast, a claim for unliquidated damages for misleading or deceptive conduct by the bankrupt, which induced the claimant to make a contact with the bankrupt, would be a debt provable in bankruptcy.' See also Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442 ; (2000) 105 FCR 444 at [29] [34] (Katz J) and Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363 ; (2004) 138 FCR 314 at [25] [34] (Spender J). In this case it is not alleged that Norilya entered into any contract with the prospectors by reason of the misrepresentations alleged. Its contract was with Acarus, albeit its payments were made to the prospectors. It does not rely upon the Deed of Assumption in that respect.


case_title: Australian Competition and Consumer Commission v Kritharas [2000] FCA 1442 ; (2000) 105 FCR 444 cited Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363 ; (2004) 138 FCR 314


case_text: this case leave is appropriate. The matter is plainly one of some complexity and the justice of the case requires that Norilya has the opportunity to pursue what may be in effect, a set-off against the obligation which it has to repay the restitution moneys under the orders of the Court of Criminal Appeal Macquarie Bank Ltd v Bardetta (2005) 216 ALR 670 at [20] [21] (Conti J). I am not disposed to attach any such condition to the grant of leave, which in this case will only be necessary in relation to the fraud claim. The question whether any stay of proceedings should be sought in the light of the unsatisfied orders of the Court of Criminal Appeal is a matter for the Supreme Court. The justice of such a condition is not immediately apparent. For the preceding reasons I propose to grant leave to Norilya to continue with the proceeding issued against the respondent and others in the Supreme Court of Western Australia. In my opinion the costs of this proceeding should be costs in the Supreme Court proceeding, but I will hear from the parties as to that. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 13 September 2006 Counsel for the Applicant: Mr J Gilmour QC and Ms EL Blewett Solicitor for the Applicant: Deacons Counsel for the Respondent: Mr M Ryan Solicitor for the Respondent: Bostock & Ryan Date of Hearing: 29 August 2006 Date of Judgment: 13 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1235.html


case_text: In so doing, it may well be that the Tribunal went strictly beyond the bounds of what 424A of the Migration Act required it to do. That is so because inconsistencies have subsequently been held not to constitute "information" for the purposes of that section: see SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609. The Tribunal, though, is, with respect, hardly to be criticised for going beyond, in terms of procedural fairness, what s 424A of the Migration Act 1958 might otherwise have required of it. 8 As it happened, inconsistencies of the kind which the Tribunal had highlighted in its letter of 10 January 2007, informed credibility findings which the Tribunal came to make. It is worthy of note that the Appellant made no response to the opportunity which the Tribunal had offered to him by its letter of 10 January 2007. The result of the credibility findings which the Tribunal made was that it found that the Appellant had not suffered what it described as, "Convention-based persecution in the past". 9 The result of that was that it found that it was not satisfied that there was a real chance that the Appellant would be seriously harmed for reasons of his real or imputed political opinion or membership of Falun Gong were he to be returned to China.


case_text: In respect of the other basis of challenge to the decision of the Federal Magistrate, that ground might be regarded as seeking to engage the "What if I am wrong?" approach. The basis for that description can be found in the judgments delivered by the High Court in the Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. At para 24 of his reasons for judgment, the learned Federal Magistrate observed: The exercise of the Tribunal's function clearly involves it in considering each claim, or integer or aspect of a claim, and to weigh the evidence and material before it, and to make findings upon which it may base its conclusion of whether or not an applicant's fear of persecution for a Convention reason is well-founded. If such a finding is not made with an appropriate degree or sufficiency of confidence, that is, if it is attendant with such a degree of doubt, then the Tribunal may need, in those circumstances, to consider the alternative, that is to consider that its finding may be incorrect and then to determine whether an applicant may have a well-founded fear in those circumstances. 13 His Honour, having made this observation, then makes reference to relevant supporting authority. The passage quoted is, with respect, a useful summary of an obligation which can fall on the Tribunal having regard to what was said by the High Court in Guo . As the Federal Magistrate plainly appreciated, if it is clear that the Tribunal had no real doubt as to the correctness of its findings it was not required to consider whether its findings might be wrong. As the Magistrate, with respect, correctly observed the issue is the Tribunal's apparent confidence in its conclusions. Regard to the Tribunal's reasons in this case gives no basis for an apprehension that the findings made were anything other than findings made with confidence. 14 Like the Federal Magistrate, I do not see that any obligation fell on the Tribunal to apply the "What if I am wrong test?" The Federal Magistrate plainly appreciated that findings of fact, particularly those referable to credibility findings, were peculiarly matters for the Tribunal, not a court undertaking a judicial review role. Even more so that is the case in respect of a court entertaining an appeal from the Federal Magistrates Court in such circumstances. In other words, it is nothing to the point whether I or the Federal Magistrate, had we been exercising the powers of the Tribunal, would have been disposed to accept the Appellant's claim for a protection visa notwithstanding particular inconsistencies or subsequent additions to the basis for the claim. So to do would be to go beyond the jurisdiction that is consigned to the Federal Magistrates Court and to this Court respectively. 15 It follows then that I do not see any merit in either of the grounds of appeal. In those circumstances the appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 5 August 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms Sirtes Solicitor for the Respondents: Clayton Utz Date of Hearing: 4 August 2008 Date of Judgment: 4 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1162.html


case_outcome: related

case_text: The Village Building Co Limited has filed a notice of appeal against the judgment of Rares J in The Village Building Co Limited v Airservices Australia [2007] FCA 1242 . The appeal has been tentatively fixed for the week of 29 October next. Village Building submits that, in essence, the judgment below should be stayed by the grant of an injunction to restrain endorsement by Airservices Australia of a statutory instrument being a draft Australian Noise Exposure Forecast (ANEF) pending the hearing of the appeal. As the hearing is only a short time away, there is much to be said for the view that the status quo should be maintained, at least until the appeal is heard. 2 On the other hand, there is a statutory process being interrupted and counsel for Canberra International Airport, a respondent to the appeal, submits that there is no irreparable harm caused if there is no injunction and the ANEF is endorsed because that merely triggers other events. If there is a successful attack on the endorsement, that success will carry through to the next stage. Put another way, it is the contention of Canberra International Airport that the matter take its course, even though, if ultimately Village Building is successful, that may mean that time and money have been expended on a statutory course of action which is rendered nugatory. I asked counsel for Village Building what irreparable harm is done if the endorsement is found to be contrary to law given the most likely result is that it will be set aside and it will be as if it had never occurred. Counsel put that once a statutory step of that sort is taken, it is difficult to be quite clear as to what consequences it might have. 3 The matter is quite evenly balanced. At the end of the day I am disposed to grant the injunction, mainly because of the very short time involved between now and the hearing of the appeal. I appreciate that while hearing an appeal is one thing, getting a judgment is another. However, if the injunction is limited in time, the continuation of the injunction will be a matter for the Full Court. That is appropriate. I am exercising appellate jurisdiction as a single judge and that has its limitations. By the end of the appeal, which should be completed in a day, the members of the Full Court will be very well versed with the statutory consequences so that they will be well placed to give consideration to whether it is appropriate to extend the injunction. It goes without saying that what I have had to say today will be of little relevance to that Court when it considers the matter in the light of the arguments it will have heard by then. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 October 2007 Counsel for the Appellant: Mr B Salmon QC, Mr P Walker Solicitor for the Appellant: JS O'Connor Harris & Co Counsel for the First Respondent: Mr E Muston Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: Ms L McCallum SC Solicitor for the Second Respondent: Mallesons Stephen Jaques Date of Hearing: 2 October 2007 Date of Judgment: 2 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1547.html


case_text: the Federal Magistrate noted at [16], the Tribunal did not consider that "businessmen in Nepal" constituted a particular social group for the purposes of the Convention but accepted that there might be some targeting of wealthy landowners or businessmen with anti-Maoist political affiliations by the YCL. The Tribunal concluded that, as the appellant did not claim to be a royalist or to have anti-Maoist affiliations, he was not at risk. This represents a fair summary of the Tribunal's reasons. This finding was open to the Tribunal based upon the evidence before it, including the country information to which the Tribunal referred in its decision. It was open to the Tribunal on material before it to determine whether or not there was a social group of "businessmen in Nepal" per se ( Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 at [81] ). The Tribunal did not fail to properly identify the social group to which the appellant belonged. At the hearing of the appeal the appellant appeared in person assisted by an interpreter. He stated that he had claimed to be a Monarchist. However, there was no reference to such a claim in the Tribunal decision and the appellant could not show that any such claim had been advanced to the Tribunal. The appellant did claim in his protection visa application that he was accused of being a Monarchist; the Tribunal dealt with the appellant's claim that he was perceived as being a royalist. Ground 2 alleged breaches of ss 424 , 424A and 424B of the Act


case_outcome: followed

case_text: procedural restrictions on the specific power to issue an invitation to give additional information under s 424(2) do not qualify the Tribunal's general power in s 424(1) to "get any information that it considers relevant" ( Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]). Therefore, there was no jurisdictional error on the part of the Tribunal in the way in which it obtained the information. In any event, the request for information from DFAT was not a request for "additional information" from a "natural person" ( SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407). The first request or invitation to DFAT resulted in the provision of the information that the newspaper article was not genuine. The second request or invitation was made through DFAT to Mr Sharma. Insofar as it was a second request to DFAT, it was not from a natural person; to the extent that it was from Mr Sharma, it was not additional information. Consequently there was no breach of s 424(2) of the Act or, it follows, of s 424B. In response to the s 424A letters and the provision of the DFAT documents which contradicted the appellant's documents, the appellant did not, by himself or through his migration agent, seek a further opportunity to give oral evidence. He was, however, given the opportunity to respond in writing ( SZKTI (2009) 258 ALR 434 at [51]). Whether the relevant issue is the credibility of the appellant or the incident which the appellant originally said occurred on 28 January 2007, the subsequent documentation submitted to the Tribunal after the hearing did not raise a fresh issue. Where a document is submitted after the Tribunal hearing in relation to a pre-existing issue, either on request from the Tribunal or volunteered by an applicant, that does not, of itself, constitute a new issue. It is additional information about an extant issue ( SZKTI (2009) 258 ALR 434 at [51]). The contrary outcome would mean that, by proffering fresh documentation to the Tribunal, there would, of necessity, be a never-ending series of additional hearings required pursuant to s 425(1). That cannot be what that section envisaged. The issues on the review conducted by the Tribunal in light of the documents submitted after the hearing remained the same as those that had been identified by the delegate and dealt with at that hearing and which, in turn, formed the focus of the hearing before the Tribunal. That was the credibility of the appellant's claims to persecution and the certainty of the dates upon which the incident on which those claims were based had allegedly occurred. The documents provided by the appellant, which the Tribunal found to be fraudulent, merely provided another particular of the appellant's lack of credibility on that issue. At the hearing of the appeal, the appellant also alleged bias on the part of the Tribunal. When asked to give a basis for such an allegation, he said it was because the Tribunal rejected his claims. That does not establish bias.


case_outcome: referred to

case_text: Magistrate Raphael accepted that the Tribunal had miscalculated the date between the appellants' arrival in Australia and the making of the application for protection visas but did not accept that this constituted jurisdictional error, as it did not go to an integer of the appellants' claims ( Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [84] ). Federal Magistrate Raphael concluded that the Tribunal's findings on credibility were opened to it. His Honour was satisfied that the relevant claims had been considered by the Tribunal. The grounds of the notice of appeal are as follows: The Federal Magistrate erred by not finding that the second respondent had made jurisdictional error by finding that businessmen in Nepal did not constitute a particular social group by reference to persecution on the grounds of political opinion and without reference to the tests for the determination of whether a group falls within the definition of a "particular social group" as determined by High Court authority. The Federal Magistrate erred by not finding that the second respondent made jurisdictional error by failing to comply with ss 424 , 424A and 424B of the Act in relation to information obtained from Pokhara Daily Hotline in Nepal. The Federal Magistrate erred by not finding a breach by the second respondent of s 425 of the Act upon the basis of the statements of the Full Court of the Federal Court in SZKTI at [56]. Ground 1 particular social group


case_text: any event, the question is whether the subject of the s 424A letters was part of an issue that had previously arisen and whether the appellant had an opportunity to deal with it during the hearing. The Minister submits that the issues arising on review before the Tribunal should be characterised as those which the original decision-maker identified as determinative against the appellant ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] ). The relevant issue, the Minister says, is whether the appellant had suffered the incident, which was also an issue before the original decision-maker, the delegate. The Minister submits that it is not appropriate to describe the issue as the authenticity of the documents submitted by the appellant. If that were the case, the Minister concedes that that issue, having been raised after the hearing, would have entitled the appellant to a fresh hearing pursuant to s 425 and the Tribunal decision would be affected by jurisdictional error.


case_text: the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ). To the extent that this ground of appeal may be referring to evidence given by the appellant's wife to the Tribunal, that has not been raised by the appellant. In any event, none of the evidence given by the appellant's wife could be said to constitute "information" that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review, the delegate's decision to reject the appellant's claims. The Tribunal merely found that it did not accept her claims and that she ' was prepared to fabricate her evidence in order to support the [appellant]'. The Tribunal's thought processes and appraisals of the evidence of the appellant's wife do not constitute information for the purposes of s 424A ( SZBYR at [18]). Ground 3 s 425 of the Act This ground of appeal relates to the provision of the DFAT documents to the appellant after the oral hearing. The appellant contends that he should then have been invited to a further oral hearing to give evidence on the issue of whether the documents he submitted to the Tribunal were fraudulent.


case_text: the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ). It would seem by this ground that the appellant is referring to an issue raised by Raphael FM at the hearing, namely whether or not the information received by the Tribunal from DFAT (the newspaper article and the letter from Mr Sharma) was of the types of information considered in SZKTI or in SZKCQ .


case_text: the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ).


case_text: procedural restrictions on the specific power to issue an invitation to give additional information under s 424(2) do not qualify the Tribunal's general power in s 424(1) to "get any information that it considers relevant" ( Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]). Therefore, there was no jurisdictional error on the part of the Tribunal in the way in which it obtained the information. In any event, the request for information from DFAT was not a request for "additional information" from a "natural person" ( SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407). The first request or invitation to DFAT resulted in the provision of the information that the newspaper article was not genuine. The second request or invitation was made through DFAT to Mr Sharma. Insofar as it was a second request to DFAT, it was not from a natural person; to the extent that it was from Mr Sharma, it was not additional information. Consequently there was no breach of s 424(2) of the Act or, it follows, of s 424B.


case_outcome: affirmed

case_text: appellants are citizens of Nepal who arrived in Australia on 22 April 2007. On 1 June 2007 the appellants lodged applications for protection visas which were refused by a delegate of the Minister on 24 August 2007. The appellants applied to the Tribunal for a review of that decision. The Tribunal upheld the decision of the delegate. On appeal to the Federal Magistrates Court, Raphael FM dismissed the appellants' application for review of the Tribunal decision ( SZMHU v Minister for Immigration and Citizenship [2008] FMCA 1243). The appellants are husband and wife. The appellant wife makes her claims as a member of the family unit of her husband ('the appellant'). The appellant claimed to fear persecution in Nepal on the basis of his imputed political opinion as a perceived Monarchist and his membership of a particular social group, being a businessman in Nepal. He claimed that he was a successful businessman and that, because of this, he became the subject of extortion threats from Maoists in Pokhara. He says that he was targeted by the Young Communist League ('YCL'), a Maoist offshoot, for extortion due to his perceived wealth. He claimed that he initially made the contributions but eventually decided to stop making any more contributions. As a consequence, his face was tarred and he was paraded around the town as a public humiliation ('the incident'). He claimed that an attempt to relocate to Kathmandu was not successful in avoiding the Maoists who discovered him there and subjected him to further extortion. He also claimed that the authorities were unable to protect him. The delegate noted that the appellant claimed persecution on the grounds that he was perceived as an active Monarchist by the Maoists, that he belonged to the particular social group "businessmen in Nepal" and was targeted by Maoists for extortion. However, the delegate concluded that the appellant's claims lacked credibility and sufficient specific detail for him to be satisfied that the appellant faced a real chance of persecution because of his membership of a particular social group or because of an imputed political opinion. The reasons given by the delegate were, in summary: The appellant's passport had indicated that he departed Nepal on two different occasions and returned in July 2006 and in 2007. His voluntary return to Nepal suggested that he did not have a real fear of persecution in Nepal. The passport appeared to indicate that the appellant had returned to Nepal on 31 January 2007. It was therefore unlikely that his claim to have been harmed by the YCL in the incident on 28 January 2007 was true. The appellant's claims to have fled Pokhara because of threats from the Maoists were inconsistent with a document he provided which showed that once he left Pokhara, his brother took over the business and appeared to run it profitably.


case_title: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

case_text: The Notice of Appeal alleging a breach of the requirements of s 424A of the Act was dismissed by Barnes FM in her reasons for judgment. Her Honour said in par 11: '... when one considers the Tribunal's reasons for decision, it is apparent that the reason for the Tribunal's findings, including its ultimate finding of a lack of satisfaction that the applicant had a well-founded fear of persecution (and hence was a person to whom Australia had protection obligations) was based on the inadequacy of the claims and the material submitted by the applicant. The Tribunal referred to the scant details of the applicant's claims and gave examples of such inadequacy.' Her Honour continued at par 12: 'This is not a case in which the Tribunal purported to rely on any inconsistencies between what appeared in the protection visa application and in the applicant's claims as made to the Tribunal. Rather the decision turned on the inadequacy of the materials provided. In such circumstances, as in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [ 2005 ] FCA 1195 ['SZEZI'] , it cannot be said that there is information which forms the reason or part of the reason for affirming a decision under review subject to the operation of the obligation in section 424A(1). ' 5 Her Honour referred to the decision of Allsop J in SZEZI and accepted the application of his Honour's comments to the case before her Honour, where Allsop J had said, at par 29: '... The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded upon the perceived inadequacy of the information, in the sense of an absence of detail and intrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.'


case_text: Later her Honour said at par 15, after having referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 6: 'In this case it was the inadequacy of information alone which provided the basis for the Tribunal decision.' Her Honour concluded: 'No failure to comply with s 424A(1) of the Migration Act is established on the material before the Court.' 7 Barnes FM was correct to so find. The material before the Court does not disclose any reviewable error in the decision of Barnes FM. 8 The appeal of the appellant is dismissed.


case_outcome: applied

case_text: The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511 , Repatriation Commission v Ahrenfield (1991) 29 FCR 556 , Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: "1. the nature of the veteran's service overall; 2. the essential character of the veteran's service during the period spent outside Australia when that essential character is determined by reference to matters such as: (1) the period of time for which the veteran is outside Australia; (2) the purpose for which the veteran was outside Australia; (3) events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area; (4) the veteran's activities during the period outside Australia; and (5) the veteran's activities both before and after the period of service outside Australia; and 3. whether, having regard to its conclusions on the first two matters, the veteran's service in the particular period can be seen to be treated as operational service." 22 In any event, had the questions been framed in the manner suggested the answer to both of them must have been: no. The Tribunal's task, when called on to apply s 6A(1) , necessarily involves questions of degree and requires the making of value judgments. In Repatriation Commission v Kohn (1989) 87 ALR 511 , Hill J provided guidance on the exercise of the Tribunal's power under s 6A. His Honour said (at 524-525): "It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a). When attention is focused on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant. Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member's service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service". It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia." The definition of operational service, now found in Item (1)(a) of s 6A of the VE Act , appeared in s 6(1)(a) at the time at which Hill J's decision was made. Kohn has been adopted and applied by the Court in later cases: see Proctor at [16] and [24] and Roscoe at [35]. 23 Mr Roper had ventured outside Australia on only two occasions during his military service. There was evidence before the Tribunal, including evidence from Mr Roper's son, that the two flights formed part of the training regime for aircrew. The training was designed to familiarise the crew (including Mr Roper) with new aircraft prior to them being posted overseas. The possibility of any enemy contact during the flights was low. The fact that surveillance work was undertaken during the flights did not detract from the essential training purpose which they served. It was open to the Tribunal to determine that the relevant service of Mr Roper fell into the second category of case identified by Hill J, namely, that in which when "looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia ...". The training base was in Australia. The training flights left from and returned to the Australian base. The duration of those parts of the flights which took place outside Australian territorial limits were relatively short. In these circumstances it cannot, in my opinion, be said that there was no evidence to support the two impugned findings. Nor can the submission, made by counsel for Mrs Roper, that the only conclusion open on the facts found was that Mr Roper performed operational service outside Australia, be accepted. 24 These paragraphs are both very difficult to understand. Paragraph 2.13 appears to attribute to the Tribunal a finding which it did not make. The Tribunal did not reason that, because the two flights were for the purposes of training and familiarisation with the new aircraft, this precluded Mr Roper's service being operational service. Paragraph 2.14 appears designed to raise a construction point. It seems intended to raise the question of whether, in deciding whether or not Mr Roper had rendered continuous full time service outside Australia, the Tribunal was entitled to pose and answer the subsidiary question of whether the service was for the purpose of training and familiarisation with the new aircraft. The Tribunal did not ask this question. It asked whether "the essential character of Mr Roper's service during the periods he was outside Australia was one of training and familiarisation with the Liberator." Neither paragraph propounds a pure question of law. 25 These questions appear to be linked to grounds 4.5 4.7. Mrs Roper submits that the question for the Tribunal was whether Mr Roper rendered service outside Australia. By asking itself whether the essential character of the service was "one of training and familiarisation with the Liberator" the Tribunal was, so it was said, diverted from giving attention to this question. Mrs Roper complains that the Tribunal treated the task of characterisation as being at large and that the Tribunal drew a dichotomy between service and training which was inconsistent with the terms of s 6A(1) of the VE Act . 27 The Tribunal directed itself consistently with Hill J's judgment in Kohn. It was required to characterise Mr Roper's flights to (or towards) Middleton Reef. The amount of time Mr Roper spent outside Australia during these flights was a matter to be considered in forming this judgment. This was a fact finding exercise. It is clear from the principles identified by the Tribunal (see above at [11]) that it correctly understood the task it was required to perform. It did not treat the time spent outside Australia as a relevant principle. Rather it identified this as a matter which, in an appropriate case, would assist in determining the essential character of a veteran's service. The Tribunal's reasoning at paragraphs [44] to [47] demonstrates that it considered the evidence before it in light of the principles which it had distilled from decisions of this Court. 28 For the reasons explained above at [23], it was open to the Tribunal to find that the flights were undertaken for training purposes and that the essential character of Mr Roper's relevant service, considered overall, was not continuous full-time service outside Australia. 29 The question asked in paragraph 2.15 lacks precision. In particular, it is not clear what is comprehended by the phrase "the correct application of s 6A Item 1(a) ...". If paragraph 2.15 is intended to raise the question of whether, on the facts found, Mr Roper's two flights outside Australia constituted operational service within the meaning of s 6A , a pure question of law could probably be framed. It is another way of raising the issue to which question 2.1 seems to be directed. 31 It is clear, particularly from the definition of "continuous full-time service" in s 5C , that the words in s 6A Item 1(a) are used according to their ordinary meaning: see also Kohn at 524, quoted above at [22]. For the reasons given earlier the facts found by the Tribunal did not necessarily render Mr Roper's service, in the course of the two flights, continuous full-time service outside Australia. There is, therefore, no question of law raised by paragraph 2.15, even if it is broadly construed. 32 For these reasons I do not consider that a question of law has been identified for the purposes of s 44 of the AAT Act . Even if the necessary foundation for the Court's jurisdiction had been established the appeal would, for the reasons given above, have failed. 33 There is a further problem with the present appeal. It is brought against what amounts to a preliminary decision on a matter of evidence. The Tribunal has yet to determine Mrs Roper's application to it. There are strong policy reasons for avoiding fragmentation of and delay in proceedings before the Tribunal.


case_text: The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511 , Repatriation Commission v Ahrenfield (1991) 29 FCR 556 , Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: "1. the nature of the veteran's service overall; 2. the essential character of the veteran's service during the period spent outside Australia when that essential character is determined by reference to matters such as: (1) the period of time for which the veteran is outside Australia; (2) the purpose for which the veteran was outside Australia; (3) events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area; (4) the veteran's activities during the period outside Australia; and (5) the veteran's activities both before and after the period of service outside Australia; and 3. whether, having regard to its conclusions on the first two matters, the veteran's service in the particular period can be seen to be treated as operational service."


case_text: The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511 , Repatriation Commission v Ahrenfield (1991) 29 FCR 556 , Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: "1. the nature of the veteran's service overall; 2. the essential character of the veteran's service during the period spent outside Australia when that essential character is determined by reference to matters such as: (1) the period of time for which the veteran is outside Australia; (2) the purpose for which the veteran was outside Australia; (3) events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area; (4) the veteran's activities during the period outside Australia; and (5) the veteran's activities both before and after the period of service outside Australia; and 3. whether, having regard to its conclusions on the first two matters, the veteran's service in the particular period can be seen to be treated as operational service." 22 In any event, had the questions been framed in the manner suggested the answer to both of them must have been: no. The Tribunal's task, when called on to apply s 6A(1) , necessarily involves questions of degree and requires the making of value judgments. In Repatriation Commission v Kohn (1989) 87 ALR 511 , Hill J provided guidance on the exercise of the Tribunal's power under s 6A. His Honour said (at 524-525): "It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a). When attention is focused on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant. Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member's service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service". It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia." The definition of operational service, now found in Item (1)(a) of s 6A of the VE Act , appeared in s 6(1)(a) at the time at which Hill J's decision was made. Kohn has been adopted and applied by the Court in later cases: see Proctor at [16] and [24] and Roscoe at [35].


case_title: Roscoe v Repatriation Commission [2003] FCA 1568


case_text: In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44 , " but also the subject matter of the appeal itself ..." (Emphasis added.)


case_text: It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.) 21 Each of the questions is fraught with ambiguity. Each asks, in substance, whether, on the facts found by the Tribunal, it was open to it to make the finding of fact that Mr Roper did not render operational service during World War II. The ambiguity arises, particularly in relation to question 2.4, because the questions may be understood as asking either whether there was any evidence accepted by the Tribunal which supported its finding or whether the evidence or the weight of the evidence before the Tribunal supported its finding: cf Lambroglou at 523. A question of the latter kind is not a question of law. As Ryan J held in Lambroglou (at 527): "If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law." Had the questions been framed along the lines of whether there was any evidence before the Tribunal to support its findings that Mr Roper had not rendered continuous full-time service outside Australia and that, accordingly, he had not rendered operational service, appropriate questions of law would have been raised: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. There would not, however, have been grounds which linked these questions to the circumstances of the case and the orders sought by Mrs Roper. Grounds 4.1 and 4.3 appear to allege that the Tribunal misconstrued Item 1(a) in s 6A of the VE Act rather than suggest that there was no evidence to support the findings.


case_text: It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)


case_title: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290


case_title: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522


case_title: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101


case_title: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456


case_text: Each of the questions is fraught with ambiguity. Each asks, in substance, whether, on the facts found by the Tribunal, it was open to it to make the finding of fact that Mr Roper did not render operational service during World War II. The ambiguity arises, particularly in relation to question 2.4, because the questions may be understood as asking either whether there was any evidence accepted by the Tribunal which supported its finding or whether the evidence or the weight of the evidence before the Tribunal supported its finding: cf Lambroglou at 523. A question of the latter kind is not a question of law. As Ryan J held in Lambroglou (at 527): "If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law." Had the questions been framed along the lines of whether there was any evidence before the Tribunal to support its findings that Mr Roper had not rendered continuous full-time service outside Australia and that, accordingly, he had not rendered operational service, appropriate questions of law would have been raised: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. There would not, however, have been grounds which linked these questions to the circumstances of the case and the orders sought by Mrs Roper. Grounds 4.1 and 4.3 appear to allege that the Tribunal misconstrued Item 1(a) in s 6A of the VE Act rather than suggest that there was no evidence to support the findings.


case_text: Mrs Roper submits that the Tribunal incorrectly applied s 6A Item 1(a) to the facts. She contends that the questions of whether facts fully found fall within the provisions of an enactment properly construed is a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389. In Agfa , the High Court set out the five general propositions identified by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287, the fifth of which was: "The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law". As noted by the High Court, the Full Court had qualified this proposition: "when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact": see Agfa at 395.


case_title: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280


case_text: In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review". His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 ; (2004) 40 AAR 223 at 232 French J held that "[o]rdinarily it would not seem that any s 44 appeal would lie against a ruling on a preliminary question unless it finally disposed of the application."


case_title: WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 ; (2004) 40 AAR 223


case_outcome: considered

case_text: Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS & GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute.


case_title: Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702


case_title: CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR


case_text: As is well known, the Corporations Act followed the decisions of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511; and Bond v R [2000] HCA 13 ; (2000) 169 ALR 607 and R v Hughes [2000] HCA 22 ; (2000) 171 ALR 155. The States referred power to the Commonwealth so as to enable it to enact the Corporations Act under s 51(xxxvii) of the Constitution . The Corporations Act then largely re-enacted the previous Corporations Law as a single Commonwealth law. Obviously, there are some differences, but none relevant to the present issue. As the terms of ss 588G and 588M were not materially altered when carried forward into the Corporations Act , it is not surprising that there are no observations in the parliamentary materials surrounding the enactment of the Corporations Act which enlighten the legislative intention in relation to those sections, or indeed of Div 4 of Pt 5.7B of the Corporations Act in which they stand.


case_outcome: discussed

case_text: The Harmer Report and the Discussion Paper of The Law Reform Commission (Discussion Paper 32, August 1987) explain generally the rationale of what became Pt 5.7B of the Corporations Law. It was to impose a positive duty upon a director owed to the company to prevent the company from engaging in insolvent trading. Thus, it was intended to produce a legislative structure which enables all creditors to share equally in the sums recovered, so as to promote the principle of equality. The reason for the change from a focus upon a creditor recovering a debt to the liquidator recovering loss and damage suffered by a creditor in relation to a debt is set out in pars 200 and 201 of the Discussion Paper and in the legislative proposals then put forward. It is relevantly summarised in par 202 of the Discussion Paper as being that the amount of the liability is to be determined by the Court and measured by reference to the loss and damage sustained by the creditors, and the sum recovered should then be applied for the benefit of all the unsecured creditors. Paragraph 213 then provides that the Court has ... a very broad power to give judgment in favour of the company in such amount as is just having regard to the interests of the creditors. This is to ensure that the damages recovered do not simply reflect some nominal damage to the company. The damage suffered by creditors is the relevant measure. This is consistent with Kinsela's case . It is not sufficient simply to provide that the measure of damages should be an amount equal to the sum of the unpaid debts which were incurred during the period of insolvent trading. Where debts are incurred, the company usually obtains some benefit. ... The amount for which a director who is found to have breached the duty should be liable is a matter requiring careful quantification on the facts of each case. A broad discretion to be exercised by the court is appropriate. Paragraph 317 of the Harmer Report restates those views, and gives some examples of the need for a broad judicial discretion. The reference to Kinsela's case is a reference to Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722, where Street CJ (with whom Hope and McHugh JJA agreed) at 732 733 said that the damage suffered by creditors from insolvent trading supports the view that the directors of a corporation must owe a duty to consider, in certain circumstances, the interests of the creditors. 24 Paragraphs 1103 to 1106 of the Explanatory Memorandum to the Corporate Law Reform Bill specifically address the proposed s 588M. The text appears to assume that the liquidator will effect recovery of the loss and damage suffered by a creditor to whom a debt is owed by "action", and explains why such "proceedings" should generally be permitted only through the liquidator, so the creditor's right to bring proceedings under s 588M(3) is curtailed: see s 588R 588U. That was said to ensure the principle of equal sharing. 25 Nothing is said in the Explanatory Memorandum as to why the expression "loss and damage in relation to a debt" was introduced, rather than the form of expression in the earlier legislation.


case_text: The question is whether the essential character of the demand contained in the proofs of debt is in respect of a debt provable in the bankruptcies: Cornelius v Barewa Oil & Mining (NL) (In liq) (1982) 42 ALR 83 per Wickham J at 89-90. All debts and liabilities are provable in the bankruptcy unless they fall within one or more of the exceptions specified in s 82 , relevantly for present purposes, s 82(2) of the Bankruptcy Act .


case_text: Section 82(1) of the Bankruptcy Act adopts the use of wide language in expressing what are to be considered admissible debts and liabilities in bankruptcy. See for example the discussion of its history and of its terms in the joint judgment of the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234 at [20] [29]; Re Hide; Ex parte Llynvi Coal and Iron Co (1871) 7 Ch App 28 at 31 32 per James LJ. 36 The trustee, in my judgment, is not entitled to reject the proof of debt lodged by the Liquidator because it falls within s 82(2) of the Bankruptcy Act . For the reasons given, I consider that the trustee erred in doing so. It is not therefore necessary to address the qualification in s 82(2) excluding claims for unliquidated damages arising otherwise than by reason of a contract promise or breach of trust. That qualification in s 82(2) was considered by the High Court in Coventry 227 CLR 234. If it had been necessary to address that qualification, there may have been some difference between the Liquidator's claim based upon unpaid trade creditors of the Company and the statutory imposts also included in his proofs of debt.


case_text: Section 82(1) of the Bankruptcy Act adopts the use of wide language in expressing what are to be considered admissible debts and liabilities in bankruptcy. See for example the discussion of its history and of its terms in the joint judgment of the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234 at [20] [29]; Re Hide; Ex parte Llynvi Coal and Iron Co (1871) 7 Ch App 28 at 31 32 per James LJ.


case_title: Fryer v Powell (2001) 159 FLR 433

case_text: The wording of s 588M(2) also, in my view, tends to confirm that no such dramatic change was contemplated by the introduction of Div 4 of Pt 5.7B. Section 588M(2) empowers the liquidator to recover from the director "as a debt due to the company" an amount equal to the amount of loss or damage. That is the loss or damage suffered by the creditor or creditors in relation to the debt because of the company's insolvency. The use of the word "debt" in s 588M(2) and in s 588M(3) in the case of a creditor's action must be given some work. In Fryer v Powell (2001) 159 FLR 433, the Full Court of the Supreme Court of South Australia (Olsson, Duggan and Williams JJ) addressed the use of that word "debt" in s 588G and s 588M. In that case the liquidators of a company in liquidation sued the directors for recovery of a sum of money equivalent to the sum of the debts incurred at the time when the company was insolvent or when grounds existed for a reasonable suspicion that it was insolvent, to the knowledge of the directors. Judgment was given against the directors and they appealed. The relevant issue on that appeal was whether statutory imposts under the ITAA could constitute a debt for the purposes of s 588G of the Corporations Law, so the precise issue in this matter did not directly arise. The claim against the directors included a range of categories of debt including debts due to trade creditors (which do not appear to have been contentious), accrued leave entitlements, unpaid sales tax liabilities, penalties for non-payment of sales tax, unpaid group tax and assessed penalties for non-payment of group tax, and unpaid WorkCover levies and penalties for non-payment of WorkCover levies. Olsson J (with whom Duggan and Williams JJ agreed) concluded at 442, at [62] [63] that the ordinary English meaning of the word "debt" should be adopted, there being nothing in the Corporations Law to suggest any other special meaning, and because that meaning had been attributed to that word in s 556 of the Companies Code: see eg per Gleeson CJ in Hawkins v Bank of China (1992) 26 NSWLR 562 at 572. In respect of the statutory imposts, his Honour said at [72], at 444: ... if, by reason of the normal, ongoing operations of a company (including the mere passive retention of existing staff or premises), it is liable to pay a statutory impost, then it may properly be said that such an impost has been "incurred", as a debt, by the entity in question. In a complementary submission, counsel for the directors in that case (as here) placed emphasis upon the expression "loss or damage" in s 588M. It, too, is not defined either in the Corporations Law or in the Corporations Act . The argument was that the expression "loss or damage" indicated that the quantification of the liability was not the amount of the unpaid trade debt in each instance, and it was necessary for the Court to examine each individual debt and to make various potential abatements of it. His Honour said at [88] [89], at 447 that: I entertain no doubt that, read in context, the loss and damage adverted to is the amount of the unpaid debt due to the creditor in question. This is the view which was obviously taken by Austin J in Tourprint International Pty Ltd (In Liq) v Bott (1999) 32 ACSR 201 at 217 and, in my experience, has always been applied to the practical administration of the statute. Whilst the provisions of the Corporations Law , so applied, may give rise to some practical consequences which could be said to be somewhat arbitrary and possibly inequitable in some respects, the insolvency law has always, as a matter of practicality and commercial expediency, had to adopt certain parameters which are arbitrary. There is nothing particularly novel in the approach here in question. By way of contrast, the adoption of the approach espoused by Mr Randle would render administration in insolvency virtually unworkable. The legislature could not possibly have envisaged creating the inevitable complexity and requirement for detailed examination of collateral issues which Mr Randle propounds. I therefore reject his submissions and conclude that the "loss or damage" in question will normally be the quantum of relevant unpaid debts. Austin J in Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201 at 217 at [78] does not appear to have given the matter considerable attention because it did not arise in that case. See at [78]. His Honour's observations are certainly consistent with that conclusion, but they do not contain any consideration specifically of the point. 31 On the other hand, Mandie J in Australian Securities and Investments Commission v Plymin (No 1) recognised, correctly in my view, that Fryer v Powell 159 FLR 433 laid down only a general rule capable of variation according to particular circumstances: see at [2003] VSC 123 ; (2003) 175 FLR 124 at 255, at [535]. In that case, the loss and damage suffered by the creditors of a company in their claim against the directors needed to be adjusted beyond the amount of the unpaid debt because of an interim dividend distributed by the administrator under a scheme of arrangement of the company and for a further dividend which those creditors were likely to receive. His Honour added at 256 [535]: To the extent that any allowance for actual unexpected dividends is contrary to what was decided concerning the meaning of "loss and damage" in Powell v Fryer (2001) 37 ACSR 589, 602-3 (sic), I understand the plaintiff to have conceded that such allowance should be made and I tend, with respect, to think that the concession was correct in principle. 32 There is some apparent inconsistency in expression in the observations of Olsson J in Fryer v Powell 159 FLR 433, between an absolute assertion that loss and damage is the amount of unpaid debt due to the creditor, and that it is normally the quantum of the relevant unpaid debts. Those two things are not necessarily the same. The difference may not have been significant to the resolution of that case. 33 In my view, the difference in expression is also not of significance to the issue which presently arises in this matter. That is because the question is as to the nature of the entitlement in the liquidator established by s 588M(2) so far as it applies in the bankruptcy of the directors, having regard to s 82(1) and (2) of the Bankruptcy Act .


case_text: The wording of s 588M(2) also, in my view, tends to confirm that no such dramatic change was contemplated by the introduction of Div 4 of Pt 5.7B. Section 588M(2) empowers the liquidator to recover from the director "as a debt due to the company" an amount equal to the amount of loss or damage. That is the loss or damage suffered by the creditor or creditors in relation to the debt because of the company's insolvency. The use of the word "debt" in s 588M(2) and in s 588M(3) in the case of a creditor's action must be given some work. In Fryer v Powell (2001) 159 FLR 433, the Full Court of the Supreme Court of South Australia (Olsson, Duggan and Williams JJ) addressed the use of that word "debt" in s 588G and s 588M. In that case the liquidators of a company in liquidation sued the directors for recovery of a sum of money equivalent to the sum of the debts incurred at the time when the company was insolvent or when grounds existed for a reasonable suspicion that it was insolvent, to the knowledge of the directors. Judgment was given against the directors and they appealed. The relevant issue on that appeal was whether statutory imposts under the ITAA could constitute a debt for the purposes of s 588G of the Corporations Law, so the precise issue in this matter did not directly arise. The claim against the directors included a range of categories of debt including debts due to trade creditors (which do not appear to have been contentious), accrued leave entitlements, unpaid sales tax liabilities, penalties for non-payment of sales tax, unpaid group tax and assessed penalties for non-payment of group tax, and unpaid WorkCover levies and penalties for non-payment of WorkCover levies. Olsson J (with whom Duggan and Williams JJ agreed) concluded at 442, at [62] [63] that the ordinary English meaning of the word "debt" should be adopted, there being nothing in the Corporations Law to suggest any other special meaning, and because that meaning had been attributed to that word in s 556 of the Companies Code: see eg per Gleeson CJ in Hawkins v Bank of China (1992) 26 NSWLR 562 at 572. In respect of the statutory imposts, his Honour said at [72], at 444: ... if, by reason of the normal, ongoing operations of a company (including the mere passive retention of existing staff or premises), it is liable to pay a statutory impost, then it may properly be said that such an impost has been "incurred", as a debt, by the entity in question. In a complementary submission, counsel for the directors in that case (as here) placed emphasis upon the expression "loss or damage" in s 588M. It, too, is not defined either in the Corporations Law or in the Corporations Act . The argument was that the expression "loss or damage" indicated that the quantification of the liability was not the amount of the unpaid trade debt in each instance, and it was necessary for the Court to examine each individual debt and to make various potential abatements of it. His Honour said at [88] [89], at 447 that: I entertain no doubt that, read in context, the loss and damage adverted to is the amount of the unpaid debt due to the creditor in question. This is the view which was obviously taken by Austin J in Tourprint International Pty Ltd (In Liq) v Bott (1999) 32 ACSR 201 at 217 and, in my experience, has always been applied to the practical administration of the statute. Whilst the provisions of the Corporations Law , so applied, may give rise to some practical consequences which could be said to be somewhat arbitrary and possibly inequitable in some respects, the insolvency law has always, as a matter of practicality and commercial expediency, had to adopt certain parameters which are arbitrary. There is nothing particularly novel in the approach here in question. By way of contrast, the adoption of the approach espoused by Mr Randle would render administration in insolvency virtually unworkable. The legislature could not possibly have envisaged creating the inevitable complexity and requirement for detailed examination of collateral issues which Mr Randle propounds. I therefore reject his submissions and conclude that the "loss or damage" in question will normally be the quantum of relevant unpaid debts. Austin J in Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201 at 217 at [78] does not appear to have given the matter considerable attention because it did not arise in that case. See at [78]. His Honour's observations are certainly consistent with that conclusion, but they do not contain any consideration specifically of the point.


case_title: Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201


case_title: Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123 ; (2003) 175 FLR 124

case_text: On the other hand, Mandie J in Australian Securities and Investments Commission v Plymin (No 1) recognised, correctly in my view, that Fryer v Powell 159 FLR 433 laid down only a general rule capable of variation according to particular circumstances: see at [2003] VSC 123 ; (2003) 175 FLR 124 at 255, at [535]. In that case, the loss and damage suffered by the creditors of a company in their claim against the directors needed to be adjusted beyond the amount of the unpaid debt because of an interim dividend distributed by the administrator under a scheme of arrangement of the company and for a further dividend which those creditors were likely to receive. His Honour added at 256 [535]: To the extent that any allowance for actual unexpected dividends is contrary to what was decided concerning the meaning of "loss and damage" in Powell v Fryer (2001) 37 ACSR 589, 602-3 (sic), I understand the plaintiff to have conceded that such allowance should be made and I tend, with respect, to think that the concession was correct in principle. 34 I do not consider it is useful to import into the words of s 588M(2) a requirement that the loss and damage referred to in s 588M(1)(b) and s 588M(2) be characterised as liquidated or unliquidated. Clearly, s 588M(2) entitles the liquidator to recover the loss and damage, whatever its character, from the directors as a debt due to the company. It is the debt due to the company which entitles the liquidator to prove in the bankruptcy of the directors. Although the wording of s 588M(1)(b) and (c) indicate that the loss and damage of the creditor or creditors need not equate to the amount of the debt or debts (eg as Mandie J identified in Plymin [2003] VSC 123 ; 175 FLR 124), if there has been a distribution in the liquidation of the company to reduce that debt as at the date of the claim made in the bankruptcy by realisation of other assets of the company), s 588M(2) states that the loss and damage for the purposes of the claim against the directors be recoverable as a debt. I note that Hammerschlag J in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2007] NSWSC 930 at [24] [25] adopted that position, albeit that the question was not apparently in contention before his Honour.


case_text: I do not consider it is useful to import into the words of s 588M(2) a requirement that the loss and damage referred to in s 588M(1)(b) and s 588M(2) be characterised as liquidated or unliquidated. Clearly, s 588M(2) entitles the liquidator to recover the loss and damage, whatever its character, from the directors as a debt due to the company. It is the debt due to the company which entitles the liquidator to prove in the bankruptcy of the directors. Although the wording of s 588M(1)(b) and (c) indicate that the loss and damage of the creditor or creditors need not equate to the amount of the debt or debts (eg as Mandie J identified in Plymin [2003] VSC 123 ; 175 FLR 124), if there has been a distribution in the liquidation of the company to reduce that debt as at the date of the claim made in the bankruptcy by realisation of other assets of the company), s 588M(2) states that the loss and damage for the purposes of the claim against the directors be recoverable as a debt. I note that Hammerschlag J in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2007] NSWSC 930 at [24] [25] adopted that position, albeit that the question was not apparently in contention before his Honour.


case_text: In reaching that conclusion, I have not overlooked the observation of Hill J in Commonwealth Bank of Australia v Paola [2005] FCA 855 at [25] upon which senior counsel for the Trustee relied. That case concerned the opposition of a bankruptcy petition based upon an act of bankruptcy the failure to comply with a bankruptcy notice founded upon a judgment debt. The debtor disputed his insolvency, and claimed that he would receive funds to pay the judgment debt from the liquidator of another company in liquidation who had accepted a proof of debt from the debtor for a significant sum. Alternatively, the debtor sought the bankruptcy petition be adjourned until the liquidator paid a dividend to the creditors of the company in liquidation. The payment of the anticipated dividend was held up pending the hearing of certain proceedings involving that company. 38 His Honour rejected the debtor's claim of solvency. He observed that the outstanding proceedings included a contested claim against the debtor for insolvent trading in his capacity as a director of the company, but declined to adjourn the bankruptcy petition pending the outcome of that proceeding in the exercise of his discretion because its resolution was a considerable time off, and because its outcome was uncertain. In the course of considering the exercise of the discretion, his Honour said at [25] that, even if a sequestration order were made, the proceedings against the debtor for insolvent trading would be stayed under s 58(3)(a) of the Bankruptcy Act because that claim fell under s 82(2) of that Act. 39 Although his Honour's remarks suggest that he held the view that a claim under s 588M(2) of the Corporations Act is not a claim provable in the bankruptcy of a director, that view was not expressed after the benefit of argument on the matter. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s 588M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so.


case_text: Under s 556 of the Code, and under the former s 592 of the Corporations Law (which is relevantly in the same terms as s 556 of the Code), it is clear that the liability of a director for insolvent trading could be proved by a creditor as a debt in the bankruptcy of the director: see e.g. Official Trustee in Bankruptcy v CS & GJ Handby Pty Ltd (1989) 21 FCR 19; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702; CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 at 728 729. In Handby 21 FCR 19, the Full Court (Morling Beaumont and Burchett JJ) concluded that s 556(1) of the Code rendered the company and the director (in the circumstances prescribed) jointly and severally liable for the debt. Their Honours observed at 24 25 that s 82(1) of the Bankruptcy Act and its precursors have been generously construed, and that there was no reason why it should not encompass debts or liabilities arising under statute. They then concluded at 26 27 that the statutory liability created by s 556(1) of the Code is for "the payment of the debt incurred by the company" (the Full Court's emphasis), and is a liability for a nominated debt which was not a demand in the nature of a demand for unliquidated damages but a claim for money under a statute. 42 The liquidator also relied upon Macks (trustee of the estate of Weber), Re Weber (bankrupt) [2006] FCA 636 ; (2006) 233 ALR 50. I do not think that decision is of particular significance. Relevantly, it concerned the entitlement of creditors under certain contracts to prove in the joint and several estates of the bankrupts by reason of s 95 of the Bankruptcy Act : see per Finn J at [13] [16]. 43 At present, I see no reason why the fact that s 588M does not use the words "joint and several" should preclude the Liquidator from proving his debt under s 588M(2) in both the joint and several estates of the directors. 44 In my judgment, there is nothing in s 588M which supports the conclusion that the recovery of a debt under s 588M must be confined to the several estates of the delictual directors, provided at least that the conduct giving rise to their liability is in substance the same.


case_text: On the limited material before me, the directors' respective liability to the Liquidator is the same debt arising out of the same conduct incurred by them in the same capacity. The rule against double proof discussed by Mandie J in Re Master Painters Association of Victoria Ltd (subject to deed of company arrangement) (2004) 211 ALR 316 at 319 324 at [29] is not shown to have been enlivened. The rule preventing double dividends to the detriment of other creditors can be addressed by the Trustee as discussed below.


case_text: I note that the directors' penalty imposed under the ITAA can be characterised as a debt admissible to proof in bankruptcy. See eg Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [16] - [17] and Forsyth v Deputy Federal Commissioner of Taxation [2007] HCA 8 at [16] .


case_title: Forsyth v Deputy Federal Commissioner of Taxation [2007] HCA 8


case_outcome: distinguished

case_text: With the SBC loans there was not a condition precedent to the coming into existence of the liability, as was the case in Emu Bay Railway Co Ltd v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596. The loan agreements, under which money was advanced, stipulated dates for repayment and created unconditional obligations, notwithstanding that such obligations were extended from time to time: cf Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 228 CLR 1 at [134]. Prior to the sale of share agreement, there was no suggestion that SBC's rights would be abandoned.


case_title: Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 228 CLR 1


case_text: The applicant relied on Spassked v Federal Commissioner of Taxation [2003] FCAFC 282 ; (2003) 136 FCR 441 at [128] where Gyles J said that the parent-subsidiary relationship in that case was such that the loans were "purely intra-group arrangements with no external aspect" and many of the companies involved had "no external role at all". Thus the requisite connection or relationship between the outgoing and the earning of assessable income "was not to be inferred but must be positively established". However, in the present case SBAF certainly had an external role. It was a trading entity in its own right, albeit an unsuccessful one, and used the borrowed funds for working capital to pay the expenses of its business.


case_text: The relevant taxpayer is the applicant. The focus is upon it and the use to which it put the borrowed funds. The Court is not concerned with SBC's purpose in advancing funds: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136-137. 43 I conclude the answer to Issue 2 is: yes. 44 Section 245 - 35 (1) provides that a debt is forgiven if the debtor's obligation to pay the debt "is released or waived, or is otherwise extinguished".


case_text: In my opinion, the words of s 245-35(1) cannot be read down so as to require some express forgiveness. Waiver, for example, may be by conduct; it is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 at 326, Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 658. The expression "or otherwise extinguished" is wide and would cover an agreement, enforceable in equity, not to set up the cause of action in debt: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161. SBAF was of course a party to the sale of shares agreement. After settlement of the sale of shares agreement and SBC's receipt of the purchase price from Tasman Group there is no way in which SBC could have recovered the debts previously owing by SBAF.


case_title: Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641


case_title: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161


case_text: Mr Meredith, correctly in my view, identified the debtor's capacity to pay as a function of the resources which would be available, including assets which the debtor could realise in a reasonable time frame, and taking into account other liabilities. This approach is consistent with the classic definition of solvency in Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670. 67 I would therefore not accept Mr Hodgkinson's going concern basis. 68 Mr Hodgkinson argued that a creditor valuing a debt in its own hands on a going concern basis will apply any payment against its oldest debt first. Therefore, he said, on Mr Meredith's figures, totalling SBC advances outstanding prior to each new advance meant that the distribution would be insufficient to repay any further advance after 31 January 1997.