case_title: Hill v CA Parsons Ltd [1972] 1 Ch 305

case_text: While courts are generally reluctant to grant an injunction to continue an employment relationship where it has been terminated, in a number of cases the courts have, in view of the special circumstances of those cases, granted an interim injunction to restrain an employer from treating a notice of termination as having terminated an employment relationship. One notable case is Hill v CA Parsons Ltd [1972] 1 Ch 305 (' Hill' ), especially at 314 and 320. 39 The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B]. 45 If any difficulties were to arise, a range of solutions could be found within the public service. In Hill, Denning MR said at 314 [H]: 'If the company did not want [an employee] to come to work, the court would not order the company to give [the employee] work, but so long as [the employee] was ready and willing to serve the company, whenever they required his services, the court would order the company to do their part of the agreement...'. See also Robb v Hammersmith and Fulham London Borough Council, supra, at 520-523. The decision of the High Court in Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 221 ALR 95 indicates that the right of an employee to procedural fairness under his or her contract of employment is not easily displaced. 46 In short, while the sort of difficulty identified by Dr Jessup is a real consideration, it does not arise in this case in such a way as to warrant the refusal of relief. 47 The respondents did not dispute that the summary dismissal of the applicant would be likely to inflict reputational damage on the applicant. The summary dismissal has been imposed on the applicant before she has had any opportunity of exercising her rights of review under the Act and the Regulations. It is at least reasonably arguable that the review processes and other protective mechanisms in the Act and the Regulations proceed on the footing that irreparable harm, such as reputational damage, should not be inflicted on an employee until that employee has had the chance of exercising his or her rights of review. It also seems to me that the efficacy of the review process will be enhanced if at the time of any review there is an order in force which prevents the employer from treating the notice of termination as an operative one. 48 In my opinion, the balance of convenience strongly favours the grant of interim relief. Without it, the applicant will be deprived in a legal or practical sense of the full measure of her rights to have her termination notice reviewed and potentially reconsidered. She will also have lost the opportunities to continue in employment pending an internal review, and to avoid the reputational and other irreparable harm that is likely to follow from summary dismissal. Success at final trial, and an award of damages for wrongful dismissal, would not be an adequate remedy in these circumstances. On the other hand, the grant of the injunction will not inflict any significant hardship on the respondents. They will be required to make appropriate and workable arrangements to continue the applicant's employment and to carry out the review process that is mandated by legislation. 49 For the above reasons, I consider that there are serious questions to be tried, and that an evaluation of the balance of convenience and discretionary considerations support the grant of interim relief. The applicant has proffered two undertakings, the first being the usual undertaking as to damages, and the second being an undertaking that she will forthwith institute the review process available to her under regs 6 and/or 8 of the Regulations. I will require that these undertakings be given to the Court. 51 The first order sought corresponds with the form of injunction that was granted in Hill and by Smith J in Reilly . I am satisfied that an injunction in this form is appropriate.


case_outcome: followed

case_text: The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B]. 41 Dr Jessup referred me to the policy considerations that underlie the law's traditional reluctance to grant injunctions that will perpetuate an employment relationship. In particular, he submitted that the law recognises that it would be problematical to enforce the continuation of the relationship if the employer and employee have lost faith and confidence in each other. These policy considerations are discussed by Smith J in Reilly at 22-23. 51 The first order sought corresponds with the form of injunction that was granted in Hill and by Smith J in Reilly . I am satisfied that an injunction in this form is appropriate.


case_outcome: cited

case_text: The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B].


case_outcome: considered

case_title: Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737


case_outcome: referred to

case_text: Court has before it evidence that the Attorney General of the Republic of Croatia has assured the Attorney General of Australia that he will make a request to the President of the Supreme Court of the Republic of Croatia that the trial of the applicant be held before one of the above four courts having extra-territorial jurisdiction. The assurances so given give rise to the presumption that the Republic of Croatia is acting in good faith: see Ahmad et al v The Government of the United States of America [2006] EWHC 2927 (Admin) per Laws LJ at [74], [76].


case_text: determining whether 'substantial grounds' exist for believing that there is an 'extradition objection in relation to the offence' , French J (as he then was) in Cabal and Another v United Mexican States and Others (No 2) [2000] FCA 445 ; (2000) 172 ALR 743 (' Cabal (2000)') at 748-49 said: The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). His Honour's observations were cited with approval by the Full Court in Cabal and Another v United Mexican States and Others [2001] FCA 427 ; (2001) 108 FCR 311 (' Cabal (2001)') at [137]-[138].


case_text: determining whether 'substantial grounds' exist for believing that there is an 'extradition objection in relation to the offence' , French J (as he then was) in Cabal and Another v United Mexican States and Others (No 2) [2000] FCA 445 ; (2000) 172 ALR 743 (' Cabal (2000)') at 748-49 said: The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). His Honour's observations were cited with approval by the Full Court in Cabal and Another v United Mexican States and Others [2001] FCA 427 ; (2001) 108 FCR 311 (' Cabal (2001)') at [137]-[138]. The extent of the phrase 'material that was before the magistrate' was considered by French J in Cabal (2000) at 749 where his Honour said: Upon review by this court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. At 751 French J said: In summary, I have come to the following conclusions in relation to the materials before the magistrate which may be considered by the court upon review under s 21. It is not suggested that these are exhaustive propositions, but they are reached in the light of the particular debate in this case: (1) The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence. (2) The court upon review is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. On appeal to the Full Court in Cabal (2001) there was no issue between the parties that the material which could be considered by the reviewing court comprised material which had been rejected by the Magistrate. Accordingly, this question was not determined by the Full Court. However, their Honours expressed concern at some of the difficulties that may arise from French J's interpretation, stating at [73]: Both at first instance and on appeal the parties proceeded on the basis that the review required to be heard by the Court or the Supreme Court of a State or Territory was in the nature of a rehearing, but subject to the provisions of s 21(6)(d) of the Act which confine the Court hearing the review to the material which was before the magistrate. Likewise the parties agreed that when s 21(6)(d) referred to the material "that was before the magistrate" that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the judge conducting the review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross-examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d). In Cabal (2000) at 751 French J was not constrained by the provisions of the Evidence Act 1995 (Cth) ('the Evidence Act ') in determining what material was admissible in a review under s 21 of the Extradition Act . His Honour said: In considering whether there are substantial grounds for believing that an extradition objection is made out for the purposes of s 19 , neither the court nor the magistrate is limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists. The Court is mindful of the observations of French J in Cabal (2000) at 749 where his Honour said: The very nature of those objections [the objections are referred to in s 7(b) and (c) of the Extradition Act ] is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character. French J's observations must be read in the context of his finding at [23], namely that this Court is not bound by the rules of evidence in conducting a s 21 review. As discussed above, the Full Court decisions in Cabal (2001) and Dutton v O'Shane have established that this Court is bound to apply the provisions of the Evidence Act when conducting the review. Although the evidence essentially relates to the applicant's apprehension rather than to any facts, the Court is mindful of the observations of French J in Cabal (2000) at 749. The Court considers that such evidence should be admitted given the nature of the application before the Court. The Court admits those portions of paragraphs 1, 3, 4, 5 and 18 which were before the Magistrate subject to the deletion from paragraph 4 of the section commencing 'Gotovina has been indicted...' and concluding '...in the Milosevic trial' which is not relied upon by the applicant. Statement of Savo Strbac Paragraphs 1 to 5 and 13 (except for the last sentence) of the statement of Savo Strbac are relied upon by the applicant. Mr Strbac is a former Magistrate in the Local Court in Benkovac and a former Judge of the District Court in Zadar. In 1993 Mr Strbac founded Veritas, a non-government organisation which monitors the treatment of Serbians by Croatian authorities in the territory of the Republic of Croatia and the former Republic of Serbian Krajina. The respondent objects to the admission of the above paragraphs on the grounds of opinion and relevance.


case_text: Court also notes the decision of the High Court of Justice in Damir Travica v The Government of Croatia [2004] EWHC 2747 (Admin) in which Lord Justice Laws considered an issue under s 6(1)(d) of the Extradition Act 1989 (UK), which is in substantially the same terms as s 7(c) of the Extradition Act. In such decision Laws LJ observed at [38] that the Extradition Act 1989 (UK) could not be construed as conferring such a wide power of judgment over the practices of a foreign state as to warrant refusal of an extradition where an applicant will face a fair trial but complains that members of other groups would not have to face trial at all. Accordingly, any discrepancy between the number of Croatians and Serbians prosecuted in the Republic of Croatia is irrelevant in this Court's consideration of whether the applicant would suffer prejudice at his trial by virtue of his race, nationality or political opinion. The applicant's contention does not lead to the conclusion that he would not be afforded a fair trial in the Republic of Croatia. As to the alleged disparity in convictions between Serbians and Croatians, the Court observes that such alleged disparity may be a consequence of the disproportionate number of prosecutions against Serbians compared to Croatians. It is not possible to infer prejudice by the Croatian judiciary based upon the conviction data provided by Mr Strbac since the judiciary has not been involved in the prosecution process which has resulted in the disproportionate number of Serbian convictions. As considered above, discrepancy in the number of prosecutions is irrelevant to the review before the Court. Similarly, any discrepancy in convictions which results from discrepancy in prosecutions is also irrelevant. The Court would need to have before it evidence that the disproportionate number of convictions arose independently of the number of prosecutions before it could be satisfied that there might be a basis for finding prejudice by the judiciary. Reversal of convictions In Travica Laws LJ observed at [34] that the conflict between Serbia and the Republic of Croatia and its after-effects have been 'especially acute In the Krajina region' . However, Laws LJ also observed at [35] that such circumstance did not by itself constitute a claim of prejudice 'not least when set against the signs of improvement in the conduct of prosecutions which I have surveyed, and which cannot have failed altogether to touch the Krajina region' . At [30] Laws LJ also made comment of the 'signal progress made in Croatia towards a justice system which meets international standards' . His Lordship's observations are consistent with the evidence contained in the reports referred to above. Ground 1 - Conclusion The Court has considered the applicant's evidence and finds that there is no specific evidence of pre-trial bias against the applicant, nor is there a nexus established between the applicant's apprehension and the question of whether he would be prejudiced at his trial. Further, the evidence before the Court establishes that the Croatian judiciary is capable of providing a fair trial to the applicant. The Court is not satisfied that the evidence establishes that there are substantial grounds for believing that the applicant may be prejudiced at his trial or otherwise prejudiced as provided by s 7(c) of the Extradition Act. Ground 2 Abuse of process


case_text: inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist' : see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. In Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472 , Burchett J at 486-487 quoted his decision in Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988) where his Honour, having reviewed the authorities said: These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.


case_text: Dutton v O'Shane and Another [2003] FCAFC 195 ; (2003) 200 ALR 710 the Full Court considered whether the Magistrate's rulings as to the admissibility of documentary evidence were reviewable by the Court. Finn and Dowsett JJ at [162] said: As we understand it in light of the second respondent's additional submissions, the magistrate's rulings (which cover about 70 pages of transcript) were made in light of her consideration of the contents of the documents themselves and of the character of the material in question (that is, "relevance", "unqualified opinion", "unfairly prejudicial", etc). Though finding the "excluded" material not to have utility in the resolution of the question before her, the magistrate nonetheless engaged in "an active intellectual process" in relation to that material (cf Tickner v Chapman (1995) 57 FCR 451 at 462; Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277ff; 142 ALR 1 at 13) in and for the purposes of the s 19 determination. In light of her rulings, the magistrate may not have regarded the material as "admissible evidence" on the issue she had to determine. However, those rulings did not rob that material of the character of "material that was before the magistrate" for s 21(6)(d) purposes. They merely made it material that was disregarded. In view of the above authorities, it is now established that the Court may take into account as constituting 'material that was before the magistrate' any material that was admitted by the Magistrate as well as any material that was rejected by the Magistrate provided that in the course of rejecting the material the Magistrate had engaged in 'an active intellectual process' in relation to that material. The Evidence Act However, in Cabal (2001) the Full Court found that although the magistrate is not bound by the Evidence Act , the reviewing court is. At [189] the Full Court said: Proceedings for review brought in this Court under s 21 of the [Extradition Act] are subject to the operation of the provisions of the [Evidence Act] notwithstanding the fact that those provisions are not applicable to the initial proceedings brought before a magistrate under s 19 of the [Extradition Act]. The Court observes that the Full Court in Dutton v O'Shane at [147] confirmed that the reviewing court is bound to apply the Evidence Act . A review under s 21 of the Extradition Act is in essence a rehearing subject to the limitation posed by s 21(6)(d) of the Extradition Act : see Cabal (2001) at [100]; Dutton v O'Shane at [148]. However, if a magistrate and the reviewing court are subject to different legislative regimes governing admissibility, and in particular if the reviewing court is subject to the regime of the Evidence Act , the ability of that court to consider material that was before a magistrate may be significantly restricted. An extradition objection framed under s 7(c) of the Extradition Act requires an applicant to demonstrate, inter alia, that there are substantial grounds for believing that the extradition country's judiciary may be prejudiced against that applicant. Given the nature of such a task, it is possible that the evidence available to an applicant would be scarce. It seems incongruous that sections of that applicant's evidence should be excised in a court that is ostensibly conducting a rehearing based on the material that was before the magistrate. The Court is mindful of the observations of French J in Cabal (2000) at 749 where his Honour said: The very nature of those objections [the objections are referred to in s 7(b) and (c) of the Extradition Act ] is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character. French J's observations must be read in the context of his finding at [23], namely that this Court is not bound by the rules of evidence in conducting a s 21 review. As discussed above, the Full Court decisions in Cabal (2001) and Dutton v O'Shane have established that this Court is bound to apply the provisions of the Evidence Act when conducting the review. French J in Cabal (2000) held that material that was accepted by the magistrate constituted material that was before the magistrate. As the Magistrate did not reject the reports it is accordingly not necessary to consider whether he engaged in an 'active intellectual process' in relation to such reports: see Dutton v O'Shane at [162]. In these circumstances, the Court accepts the submission of the applicant that such reports constituted material which was 'before the magistrate' . The respondent also objects to the tender of the Amnesty Report on the basis that such report contains remote hearsay. Such report is relied upon by the applicant as 'background' to the Serbian and Croatian dispute. The Court finds that the Amnesty Report contains hearsay and anecdotal material and therefore does not comply with the requirements of the Evidence Act . Accordingly the Amnesty Report is not admitted.


case_text: applicant relies upon the judgment of Mason CJ in Jago v The District Court of New South Wales and Others [1989] HCA 46 ; (1989) 168 CLR 23. In those proceedings the question arose whether a permanent stay should be granted in view of a delay in the prosecution of six years after the defendant had been charged with certain offences. The High Court of Australia held that the Court's power to prevent abuse of process in criminal proceedings extends to a power to prevent unfairness to the accused. At 30-31 Mason CJ stated: The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. Finally, it should be observed that the applicant's reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld.


case_text: Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292 Brennan J said in relation to s 80 of the Constitution : An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament. See also Re Colina and Another; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 397 per Gleeson CJ and Gummow J.


case_text: claim of an abuse of process can be sustained under Chapter III of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution ') since at no earlier stage prior to the institution of these proceedings has the judicial power of the Commonwealth been invoked: see Pasini v United Mexican States and Others [2002] HCA 3 ; (2002) 209 CLR 246 at 253 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. The Court observes that even if a stay of proceedings could have been warranted of the present proceedings before this Court on the ground of delay, it would not affect the determination of the Magistrate that the applicant was eligible for surrender pursuant to s 19(1) of the Extradition Act, nor would it affect the order under s 19(9) that the applicant be committed to prison to await surrender: see Pasini at 279 per Kirby J.


case_text: Rahardja v Republic of Indonesia [2000] FCA 1297 the Full Court at [56] found that even if Indonesian authorities were more disposed to not prosecute a non-Chinese Indonesian rather than a Chinese Indonesian, such fact did not establish that 'there are substantial grounds for believing that Mr Rahardja may be prejudiced at his trial or punished by reason of his race' (emphasis in original). The Full Court held at [56] that the question whether persons of a different ethnic background would have a better chance of avoiding trial is not a relevant consideration, as ' [t] he question is what will happen at trial or on sentence' .


case_title: Re Colina and Another; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386


case_text: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 McHugh J at 286 observed that abuses of process 'usually' fall into three categories, namely where the Court's procedures are invoked for an illegitimate purpose; where the use of the Court's procedures is unjustifiably oppressive to one of the parties; and where the use of the Court's procedures would bring the administration of justice into disrepute.


case_text: extradition offences with which the applicant is charged cannot be characterised as offences against a Commonwealth law since the offences do not arise under a law made by the Commonwealth Parliament. In Sankey v Whitlam and Others [1978] HCA 43 ; (1978) 142 CLR 1 , the High Court confirmed the need for an exercise of power by the Commonwealth Parliament in enacting legislation before a law can be said to be a Commonwealth law: see Gibbs ACJ at 30-1, Stephen J at 73, Aickin J at 104. Any similarity between the offences with which the applicant is charged in the Republic of Croatia and the possibility of the existence of an equivalent criminal offence in Australia is irrelevant. Section 80 of the Constitution does not apply because the applicant has not been charged with a Commonwealth criminal offence. It follows from the above finding, namely that s 80 of the Constitution does not apply, that there is no requirement under Australian law that the applicant be tried by jury. Accordingly the submission that the applicant has the right to be tried by jury, and that such right will be lost to him if he is tried in the Republic of Croatia, is rejected. It follows that the submission of the applicant that there is no evidence that the Republic of Croatia has the facilities to accommodate a jury trial is irrelevant.


case_title: Spautz v Williams [1983] 2 NSWLR 506


case_text: it should be observed that the applicant's reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld.


case_title: Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472


case_text: assistance in reaching the same conclusion may also be gleaned from the following observations of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 247, when His Honour was addressing analogous provisions in the Industrial Relations Act 1988 (Cth) as follows: It is correct, as counsel observed, that there is no reference in s 377 to the review being a hearing de novo; but the section imposes no restriction on the extent of review. The reason for this is clear; a right of full review is a constitutional precondition to the vesting of the court's powers in a non-judicial officer. His Honour then referred to Harris v Caladine , supra, and continued: The term "hearing de novo" is perhaps ambiguous. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact. Like Moore J, I think a review hearing is a "hearing de novo" in the latter sense. A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, "a hearing and a determination by a judge", without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues. There may be occasions when it will be appropriate to conduct the review hearing as if there had never been an earlier hearing, perhaps because the earlier hearing so miscarried that the evidence became confused and the findings irrelevant or there is so much new evidence that it swamps the earlier. But ordinarily this will not be so. Where parties make a conscientious effort to adduce the relevant evidence at a properly conducted first hearing, by the end of that hearing they will ordinarily have found considerable common ground. It will have become apparent that some issues, on which they initially had inconsistent positions, are irrelevant or peripheral. They will have dropped out of the case. Differences of evidence on other issues will have been reconciled or explained; it may have become apparent to everyone that one particular version of events is more likely to be correct than its competitor. It would be unfortunate indeed if constitutional necessity compelled the court to ignore this narrowing of the dispute. I do not think it does. The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar. But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review. In most cases, by the review stage, the critical factual issues will be few and well-defined. The course most conducive to the proper conduct of the review will be for the judge, in conjunction with the parties, to identify and concentrate upon those issues. Although nobody is bound by the judicial registrar's findings of fact, and it is important that everybody concerned with the case understands that, the judicial registrar's reasons for decision will usually assist to identify the issues to be determined on the review. ... See also: D'Antuono v Minister of Health (1997) 80 FCR 226 at 228 per Burchett J and Murphy MD, "Judicial Registrars of Federal Courts: Widening the Supervised Exercise of Delegated Judicial Power" (1996) 6 JJA 226.


case_text: to purport to give to a Certificate such a status would be Constitutionally impermissible: cf Harris v Caladine (1991) 172 CLR 84. Section 37A(1) of the Family Law Act 1975 (Cth) allowed the judges of the Family Court to make rules delegating to Registrars all or any of the powers of the Court. An order had been made delegating to Registrars certain powers. A Registrar of the Family Court had there made consent orders for the settlement of property. By a majority it was held that the order was valid. Mason CJ and Deane J there held at 95: It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. Dawson J observed at 122: ... a federal court must retain effective supervision and control over the exercise of its functions by its officers. The requirement that a federal court " retain effective supervision and control " has been said to be a " constitutional imperative ": Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 321 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.


case_title: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84

case_text: to purport to give to a Certificate such a status would be Constitutionally impermissible: cf Harris v Caladine (1991) 172 CLR 84. Section 37A(1) of the Family Law Act 1975 (Cth) allowed the judges of the Family Court to make rules delegating to Registrars all or any of the powers of the Court. An order had been made delegating to Registrars certain powers. A Registrar of the Family Court had there made consent orders for the settlement of property. By a majority it was held that the order was valid. Mason CJ and Deane J there held at 95: It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. Dawson J observed at 122: ... a federal court must retain effective supervision and control over the exercise of its functions by its officers. The requirement that a federal court " retain effective supervision and control " has been said to be a " constitutional imperative ": Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 321 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Further assistance in reaching the same conclusion may also be gleaned from the following observations of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 247, when His Honour was addressing analogous provisions in the Industrial Relations Act 1988 (Cth) as follows: It is correct, as counsel observed, that there is no reference in s 377 to the review being a hearing de novo; but the section imposes no restriction on the extent of review. The reason for this is clear; a right of full review is a constitutional precondition to the vesting of the court's powers in a non-judicial officer. His Honour then referred to Harris v Caladine , supra, and continued: The term "hearing de novo" is perhaps ambiguous. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact. Like Moore J, I think a review hearing is a "hearing de novo" in the latter sense. A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, "a hearing and a determination by a judge", without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues. There may be occasions when it will be appropriate to conduct the review hearing as if there had never been an earlier hearing, perhaps because the earlier hearing so miscarried that the evidence became confused and the findings irrelevant or there is so much new evidence that it swamps the earlier. But ordinarily this will not be so. Where parties make a conscientious effort to adduce the relevant evidence at a properly conducted first hearing, by the end of that hearing they will ordinarily have found considerable common ground. It will have become apparent that some issues, on which they initially had inconsistent positions, are irrelevant or peripheral. They will have dropped out of the case. Differences of evidence on other issues will have been reconciled or explained; it may have become apparent to everyone that one particular version of events is more likely to be correct than its competitor. It would be unfortunate indeed if constitutional necessity compelled the court to ignore this narrowing of the dispute. I do not think it does. The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar. But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review. In most cases, by the review stage, the critical factual issues will be few and well-defined. The course most conducive to the proper conduct of the review will be for the judge, in conjunction with the parties, to identify and concentrate upon those issues. Although nobody is bound by the judicial registrar's findings of fact, and it is important that everybody concerned with the case understands that, the judicial registrar's reasons for decision will usually assist to identify the issues to be determined on the review. ... See also: D'Antuono v Minister of Health (1997) 80 FCR 226 at 228 per Burchett J and Murphy MD, "Judicial Registrars of Federal Courts: Widening the Supervised Exercise of Delegated Judicial Power" (1996) 6 JJA 226.


case_title: Gibson v Bosmac Pty Ltd (1995) 130 ALR 245


case_text: seemed, however, to be concurrence with the proposition that the " hearing " was a complete " re-hearing " in the sense that the parties were neither confined to the evidence adduced before the Deputy District Registrar nor the manner in which any factual or legal issues were there sought to be advanced for resolution. It was assumed to be what Davies J has referred to as a " rehearing on the merits ": Jageev Pty Limited v Deane (1997) 72 FCR 398 at 399. For present purposes it is sufficient to note the procedural course that was in fact pursued. Directions were made for the filing of such evidence as was considered by the parties to be appropriate and for that material to be the subject of written submissions filed in advance of a hearing in Court. The materials filed included extensive extracts of the transcript of the proceedings before Branson J and copies of the submissions previously filed. Copies of the affidavits filed in support of the 2 and 5 June 2008 Notices of Motion were also included. A two volume Judge's Bundle of documents was also provided. It was not considered appropriate at the outset to constrain Counsel on behalf of either Dr Wenkart or Mr Pantzer to the manner in which the inquiry before the Deputy District Registrar was conducted. Rather, the more appropriate course was to allow Counsel to identify those factual or legal matters which they wished to have resolved by this Court relevant to the " inquiry " which had been ordered.


case_text: the purposes of undertaking that " hearing " it is fortunately unnecessary to re-state each of the previous decisions and the disputes thereby resolved. For present purposes it is sufficient to note that on 11 March 2002 Beaumont J made orders by consent, including the following two orders: 1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree. ... 5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith. The property identified in order 5 above is located in Union St, Paddington ("the Paddington property"). The correct construction of these orders has been considered by the Full Court: Pantzer v Wenkart [2006] FCAFC 140 , 153 FCR 466. It is also sufficient for present purposes to further note that on 31 October 2002, Mr Pantzer filed in this Court what was later deemed to be a cross-claim whereby he sought " an order in aid of [the Court's] order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of [the Paddington property] ". The difficulty confronting Mr Pantzer, however, was that: the total amount he had received as trustee of Dr Wenkart's estate was $769,191.66 but that: the total amount of authorised payments made by Mr Pantzer to himself by way of remuneration prior to 31 October 2002 was $325,744.60. There had been no agreement as to the " remuneration, costs, charges and expenses to which " Mr Pantzer was entitled in excess of that which had been then authorised. No occasion had thus arisen as at 31 October 2002, the date the deemed cross-claim was filed, for him to seek to exercise his rights as against the Paddington property.


case_text: further competing submission addressed by both Counsel on behalf of Dr Wenkart and Mr Pantzer should be noted. This further submission invoked " the rule in Cherry v Boultbee ". This rule was stated by Sargant J in Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144 at 150 as follows: ... [W]here a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed so to participate unless and until he has fulfilled his duty to contribute. Given the constraint imposed upon the Deputy District Registrar when conducting her " inquiry ", namely that " [t]he appropriate time for the determination of questions of interest " was at a later date, this present submission need not be further considered. A review of all of the materials to which the Court has been referred does not lead to any different conclusion being reached to that set forth in the Certificate . Assisted by — but not dictated by — the reasons provided by the Deputy District Registrar, it is considered that the same findings should now be made as were made by the Deputy District Registrar. For the purposes of O 39 rule 10(4) of the Federal Court Rules , it is thus concluded that the " weight " to be given to the Certificate of the Deputy Registrar dated 28 May 2009 is such that a finding should be made, consistent with the terms of the order for referral, that the date on which 28 days has passed from the determination of the quantum of an amount by way of remuneration, costs and charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005.


case_text: 39 does not permit, however, an order to be made referring the whole of a case to a Registrar; it only permits a " subsidiary " part of the case to be the subject of a referral: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992). Drummond J there observed (citation omitted): Rules such as O 39, rules 1 and 3 of the Federal Court Rules do not create a new cause of action or a new equity, nor do they confer a general right to an account in substitution for the trial of issues; these rules do not authorise the sending of the whole case to the Registrar, they only authorise the directing of such accounts as are subsidiary to determining the rights of the parties, thus emphasising that the main issue in suit cannot be disposed of by ordering the taking of an account ... One of the decisions there referred to by Drummond J was the earlier decision of the Supreme Court of Queensland in Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82 where Wanstall J directed attention to the " [v]arious rules of court providing for the taking of accounts " and observed that " [t]hey merely regulate procedure in aid of substantive rights arising from other sources and put in suit in a cause ".


case_title: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992)


case_title: Wenkart v Pantzer [2008] FCA 478

case_text: concluded by Branson J in her reasons for decision in April 2008 ( Wenkart v Pantzer [2008] FCA 478): [91] I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart's bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. [92] Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). Her Honour had also earlier published in October 2007 reasons for decision relevant to the remuneration and costs of the trustee: Wenkart v Pantzer (No 10) [2007] FCA 1589. This table, it is considered, correctly sets forth as the starting point the sum of $769,191.66. Reference had been made by Branson J to an alternative figure of $797,000: [2008] FCA 478 at [6] . But this alternative figure was apparently an error attributable to submissions by Senior Counsel previously appearing for Dr Wenkart. Nothing turns on this error, it being accepted by both Counsel that the correct sum is that identified in the Certificate . The sum of $769,191.66 was the sum identified by Her Honour when making the order that an " inquiry " be undertaken. And, other than a slight variation as to the dates upon which payments had been made in March 2000, there was also no disagreement on the part of Dr Wenkart as to the payments of $60,744.30, $80,000.00, $11,811.40 or $68,188.60 as identified in the table. One " objection " taken on behalf of Dr Wenkart, however, focussed upon the two sums of $105,000 paid on 15 March 2002. One sum of $105,000 was identified as " trustee remuneration " and the other sum was identified as the payment of legal fees to Cutler Hughes and Harris.


case_title: Wenkart v Pantzer [2008] FCA 1387

case_text: present proceeding arises out of an order made by Branson J in September 2008 that an inquiry be held pursuant to O 39 r 2 of the Federal Court Rules : Wenkart v Pantzer [2008] FCA 1387. An inquiry was held and a Certificate subsequently issued by a Deputy District Registrar on 28 May 2009. An " objection " has been taken to this Certificate and the present proceeding before the Court is a " hearing " pursuant to O 39 r 10(3) of the Federal Court Rules . Subsequent to the publication of those reasons for decision, two Notices of Motion were filed on behalf of Dr Wenkart seeking that further consideration be given by the Court to some of the conclusions then reached. One Notice of Motion was filed on 2 June and another on 5 June 2008. Her Honour dismissed both Motions in September 2008: [2008] FCA 1387. In doing so, Her Honour expressed her conclusions and made orders as follows: CONCLUSION [30] The parties have not reached an agreement as to the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer's cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart's Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer's cross-claim. Her Honour's orders were as follows: 1. The applications made pursuant to the notices of motion filed on 2 June 2008 and 5 June 2008 respectively be dismissed. 2. A Registrar conduct an inquiry to determine the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66. 3. The proceeding be otherwise stood over to a date to be fixed. Consequent upon this decision of Branson J, Deputy District Registrar Hannigan conducted the inquiry which had been ordered and issued her Certificate in May 2009. That Certificate stated as follows: Certificate pursuant to Order 39 Rule 10 of the Federal Court Rules . I, Paddy Hannigan, a Deputy District Registrar of the Federal Court of Australia certify that the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr. Pantzer is lawfully entitled from Dr. Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005. Order 1 r 4 of the Federal Court Rules , it should perhaps be noted, defines " Registrar " as including " a Deputy District Registrar ". The functions and manner of appointment of Registrars are addressed in Part IIA , Div 1 and 2 of the Federal Court of Australia Act 1976 (Cth). Counsel on behalf of Mr Pantzer took a more confined view as to the task presently confronting the Court. She maintained that the Certificate should be given such weight that the Court should conclude that the date calculated by the Deputy District Registrar (namely 10 January 2005) was the date on which the 28 day period referred to in the order of Beaumont J as made on 11 March 2002 expired. Counsel on behalf of Mr Pantzer further maintained that the only task confronting the Court when conducting the " hearing " provided for in O 39 r 10 was the task of determining the " weight " to be given to the Certificate . Excluded from consideration, on this approach, was any task of revisiting the orders as made by Branson J or the constraints imposed by Her Honour upon those who were to carry out the " inquiry ". Indeed, on this approach, and given the findings as made by Branson J, the task performed by the Deputy District Registrar was a simple mathematical calculation of amounts and the correlation of expenditure with dates. The confined nature of the current " hearing ", it was contended, was not only dictated by the terms of O 39 r 10 but also by the fact that Branson J had herself been previously asked to revisit the findings she had made and declined to do so in her September 2008 judgment: [2008] FCA 1387. The utility of ordering such an inquiry to be undertaken was queried. But the inquiry having been undertaken and the date identified, the outstanding task according to Counsel for Mr Pantzer was now for this Court to conduct a " hearing " confined to the resolution of such " objections " as were now properly sought to be raised for consideration. Dr Wenkart had sought such a " hearing ", as is his entitlement under O 39 r 10(3) of the Federal Court Rules . That " hearing " and that " hearing " alone, it was contended, should now proceed. Whatever subsequent appeals may be filed or other applications made all remained matters for another day. The fundamental divergence of approach exposed by the exchange of written submissions thus focussed upon those matters which could be canvassed and resolved in a " hearing " conducted for the purposes of O 39 r 10(3). It is considered that the more wide-ranging " hearing " envisaged by Counsel on behalf of Dr Wenkart is to be rejected.


case_text: concluded by Branson J in her reasons for decision in April 2008 ( Wenkart v Pantzer [2008] FCA 478): [91] I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart's bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. [92] Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). Her Honour had also earlier published in October 2007 reasons for decision relevant to the remuneration and costs of the trustee: Wenkart v Pantzer (No 10) [2007] FCA 1589.


case_title: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225

case_text: The appellant has not earlier advanced a claim to fear being arrested and charged with an offence under the Terrorism and Disturbance Act if he returns to India. If he had, the Tribunal would presumably have pointed out to him that being arrested on a charge of contravening a law of general application would not, of itself, constitute persecution (see Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387).


case_title: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387


case_text: The appellant did not seek judicial review in the Federal Magistrates Court on the ground that the Tribunal breached any or all of ss 414, 415 and 420 of the Act. Nor has he particularised the way or ways in which he now alleges that the Tribunal breached those sections. As I can see no apparent merit in the submission that the Tribunal breached those sections I do not consider it expedient in the interests of justice to grant the appellant leave to rely in this Court on a ground not raised before the Federal Magistrates Court ( Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2006] FCAFC 48 at [53] ). 46 To the extent that the appellant continues to submit that the Tribunal overlooked his claim to fear persecution in India on the specific ground that he had stored ammunition for the BK, I see no error in the way in which the Federal Magistrate dealt with this submission. 47 I am unable to identify any substance in the second ground of appeal.


case_text: Information will, it seems to me, have been a part of the reason for affirming the decision under review if it provided the basis, or part of the basis, for any finding that formed an essential link in the chain of reasoning that led the Tribunal to affirm the decision under review (cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221 per Black CJ). 27 The present case is one in which it is not easy to ascertain precisely the Tribunal's reason, or the constituent parts of the Tribunal's reason, for affirming the decision under review. In particular it is not easy to ascertain whether the information provided in the appellant's visa application provided the basis for any finding that formed an essential link in the chain of reasoning that led the Tribunal to affirm the decision of the delegate. 28 The final link in the Tribunal's chain of reasoning was that it was not satisfied that the appellant's fear of persecution by the Indian authorities was well-founded. The Tribunal gave two immediate reasons for its lack of satisfaction in this regard. First, that there have been significant changes in the Punjab with the consequence that Sikh militancy is no longer active and even militants who have served their sentences live a normal life. Secondly, that the Tribunal did not accept that the police or the authorities generally were looking for the appellant when he left India or subsequently. There is no reason to think that the information provided in the appellant's visa application provided the basis for the Tribunal's findings concerning changes in the Punjab or the authorities' apparent lack of interest in the appellant. 29 However, it is necessary to 'unbundle' the Tribunal's reasons for decision to determine which of the grounds upon which the appellant claimed to fear persecution the Tribunal had in contemplation when it concluded that it was not satisfied that his fear was well-founded. It seems clear enough that the Tribunal had in contemplation the appellant's claim that BK hid ammunition on his property and his claim that he had fed BK members because it stated that it was prepared to accept those claims (see [12] above). However, it is far from clear that the Tribunal had in contemplation his claim to have been a member of BK. 30 The preferable view, in my opinion, is that the Tribunal did not have in contemplation the appellant's claim to have been a member of BK when it concluded that it was not satisfied that his fear of persecution was well-founded. I have formed this view on two bases. First, the Tribunal had earlier explicitly rejected his claim to have been a member of BK. By contrast, it was prepared to accept 'for the present purpose' other aspects of the appellant's claims notwithstanding that it found them difficult to accept. Secondly, the Tribunal referred to militants 'who have served their sentences' living a normal life in the Punjab now. The inference arises that the Tribunal did not turn its mind to whether it was satisfied that BK members or former members, or militants generally, who had not been charged or sentenced were living a normal life in the Punjab now.


case_text: As Weinberg J pointed out in SZEEU 230 ALR at [110], the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 by majority held that s 424A requires the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review and that any breach of the requirements of the section will constitute jurisdictional error. 24 Allsop J pointed out in SZEEU 230 ALR at [214] that the decision of the High Court in SAAP [2005] HCA 24 ; 215 ALR 162 requires some aspects of the analysis in VAF 206 ALR 471 to be rejected. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]). 25 The task of ascertaining what was the Tribunal's reason, or the constituent parts of the Tribunal's reason, for affirming the decision under review may not be an easy one. It will require the reasons for decision of the Tribunal to be analysed with care. Ordinarily any statement made by the Tribunal in its written reasons for decision concerning its reason for affirming the decision will carry considerable weight. However, a statement of this kind will not necessarily be determinative. On an application for judicial review of the decision of the Tribunal it is for the court itself to determine what was the Tribunal's reason, or as appropriate the constituent parts of the reason, for affirming the decision under review. In doing so the court must remember that in SAAP [2005] HCA 24 ; 215 ALR 162 the majority made clear that it was not appropriate to engage in an evaluative analysis of the triviality, or alternatively the seriousness, of the failure to observe the requirements of s 424A (see per McHugh J at [83], Kirby J at [173] and Hayne J at [208]).


case_outcome: applied

case_text: In context it is clear that the Tribunal's reference to the appellant's 'written evidence' is a reference to information provided by him in his protection visa application. I interpolate that if the Tribunal considered that information in the appellant's protection visa application would be the reason, or a part of the reason, for affirming the decision that it was reviewing, it was obliged to give him particulars of that information and assure, as far as reasonably practicable, that he understood why it was relevant to the review ( SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 ; (2006) 230 ALR 1). 11 After giving particulars of inconsistencies in the appellant's oral evidence the reasons for decision of the Tribunal state: 'Although much of the [appellant's] evidence is very unreliable, for the present purpose, the Tribunal prefers the [appellant's] oral evidence as it was given directly to the Tribunal under oath and the Tribunal had the opportunity to at least try and explore and clarify his claims and evidence.' The Tribunal's statement of preference for the appellant's oral evidence must be understood to mean that the Tribunal found the appellant's claims as outlined in his oral evidence to be the claims on which the appellant relied and which it was required to consider. The statement does not in context imply complete acceptance of the appellant's oral evidence. 12 The view formed by the Tribunal of the claims made by the appellant in his oral evidence is recorded in the following passage from the Tribunal's reasons for decision: 'Considering the [appellant's] claims and evidence to this Tribunal, the Tribunal is not satisfied that the [appellant] was a member of BK as claimed as his other oral evidence to this Tribunal about his BK activities does not support the claim that he was a member rather than a (possibly reluctant) supporter. However, although the [appellant] could only say that an unknown amount of ammunition was hidden in a corner of his home by BK and despite police searches it wasn't found, the Tribunal is prepared to accept that BK hid some ammunition at the [appellant's] home during the violent separatist campaign in the Punjab in the 1980s and early 1990s, that the [appellant] gave food to BK persons on occasions during those years, as Sikh civilian commonly did, but that the [appellant] did nothing else in relation to BK or any other militant group. The Tribunal also accepts that BK removed the ammunition in 1994 and he had no further contact with them. In considering the [appellant's] claims of detention and torture or beatings, the Tribunal accepts as plausible his claim about the November 1984 detention as independent country information is that at the time of Mrs Gandhi's assassination, many Sikhs were detained, interrogated and tortured. Also the [appellant's] claim about this has been consistently presented. The Tribunal has much more difficulty with his claim to have been detained and tortured in October 1996 in relation to the Beant Singh assassination, because his evidence about this is inconsistent; in written evidence he said he was detained for four days and interrogated but he does not claim to have been mistreated or tortured, in oral evidence to the first Tribunal he said the last time he was detained was in 1995, but in oral evidence to this Tribunal he said that on 10 October 1996 he was detained and beaten. Also, the Tribunal finds the claim difficult to accept given that the Beant Singh assassination had occurred well over a year earlier. However, for the present purpose, the Tribunal also accepts that the [appellant] was detained in October 1996 for a few days and tortured or at least seriously mistreated. The Tribunal accepts that in being tortured or beaten, the [appellant] suffered a broken wrist, broken leg and lower back injury, and that such harm was so serious as to amount to persecution within the meaning of the Convention, and that it occurred for reason of his actual or imputed political opinion in support of militants. The Tribunal also accepts that on a couple of other occasions, in 1992 and 1994, the [appellant] was detained for a few days, interrogated and verbally abused but not physically mistreated, and that this too was for reasons of his actual or imputed political opinion. Despite the unsatisfactory nature of the [appellant's] evidence the Tribunal has accepted these claims because they are generally consistent with independent country information about the treatment of ordinary Sikhs (as well as Hindus in the Punjab at the time), by the Punjab police during the violence of the 1980s and early 1990s.' (emphasis added) 20 As Weinberg J pointed out in SZEEU 230 ALR at [110], the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 by majority held that s 424A requires the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review and that any breach of the requirements of the section will constitute jurisdictional error. 22 Whether particular information was a reason or a part of the reason for a decision of a Tribunal to affirm a decision of a delegate is generally to be determined by reference to the reasons for decision of the Tribunal which may need to be 'unbundled' to reveal that reason, or the parts of that reason ( SZEEU 230 ALR per Allsop J, with whom Weinberg J agreed, at [208]-[213]). 23 In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, a case decided earlier than SZEEU [2006] FCAFC 2 ; 230 ALR 1 , Finn and Stone JJ at [33] had observed: 'It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy -- and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.' 24 Allsop J pointed out in SZEEU 230 ALR at [214] that the decision of the High Court in SAAP [2005] HCA 24 ; 215 ALR 162 requires some aspects of the analysis in VAF 206 ALR 471 to be rejected. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]).


case_title: VAF v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 471

case_text: In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, a case decided earlier than SZEEU [2006] FCAFC 2 ; 230 ALR 1 , Finn and Stone JJ at [33] had observed: 'It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy -- and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.' 24 Allsop J pointed out in SZEEU 230 ALR at [214] that the decision of the High Court in SAAP [2005] HCA 24 ; 215 ALR 162 requires some aspects of the analysis in VAF 206 ALR 471 to be rejected. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]).


case_text: Moreover, this claim was tied to the father's claims of Christian beliefs which the tribunal rejected. The mere fact that the husband might continue to breach the one child policy was not capable of making him a member of a particular social group: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Thus, in my opinion, this claim could not have succeeded. The only factual basis for the claim was that the father intended to continue to breach the one child policy and his Christian beliefs would not permit him or his wife to have abortions. Once the father's claim to be a Christian was rejected, his mere claim that he would have more children would not have been capable of making him a member of any particular social group identified by him in his claim. For these additional reasons, I reject this claim. 67 The appeal must be allowed. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 19 December 2008 The First and Second Appellants: Appeared in person and the First Appellant spoke for all three appellants Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 28 November 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1938.html


case_text: In essence, the husband and wife claimed to fear persecution in China because, first, they had breached China's one child policy and, secondly, they were Christians. S based his claim to fear persecution in China by reason of his membership of a particular social group namely, "black children". This claim was that a "black child" in China is treated differently in consequence of that country's one child policy. This is claimed to be because black children are the victims of systematic and serious persecution as citizens of China by being denied household registration, access to food, education and health care beyond a very basic level: Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 at 303-304 [30] - [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 6 The husband and wife also claimed that they had had a third child while in China, so that S was their fourth child, but the tribunal rejected that claim. It found that S was the couple's third child. The tribunal rejected the husband's claim to be a Christian. It concluded that he had fabricated that claim. It disregarded his practice of Christianity in Australia pursuant to s 91R(3). It also found that he had lied in attempting to explain his ability to leave China without difficulty and that he was not a credible witness. The tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for a Convention reason. The tribunal found that the wife had lied to the department and an earlier tribunal hearing concerning her identity and was not credible. While it accepted that the wife was a Christian and a member of an underground church in China, it concluded, on the basis of independent country information, that she did not have a well-founded fear of harm for the latter reason. Those considerations may now be put to one side as not relevant to her Honour's decision or the issues which arise on this appeal. 7 Two grounds were argued by counsel who then appeared for the appellants before her Honour. Those grounds were in their further amended application and their notice of appeal, namely the tribunal made a jurisdictional error in: 1. finding that the [appellants] did not face a real chance of persecution as a result of their breach of the one child policy in China; 2. failing to determine the father's claim that he would keep on having children, and thus continually breach the one child policy. 8 Thus, the issues for consideration by the trial judge were confined and discrete. The crux of the appeal focuses on the tribunal's consideration of the appellants' claims concerning the one child policy as it affected each of them. The tribunal accepted that the husband and wife were in breach of that policy because they had had three children, including S, who had been conceived in China. Their position of breach of the policy is not affected by the tribunal's rejection of their claim that they had a fourth child. 55 There was nothing in the material before the tribunal or in its reasons to justify any conclusion that there was such a considerable relaxation of the enforcement of the Chinese family planning laws that the fee would not be required to be paid in full before S could be given household registration. But, the tribunal did not address the question of what fee would be likely to be imposed and when the appellant parents would be likely to have paid it, so that S's status as a "black child" would cease. The function of the tribunal was to assess the real chance whether the fee would be so large and the time for payment of any fee imposed would be of such a lengthy period that S would suffer persecution, were he to return to China. Until it addressed that question, it could not determine whether there was a real chance that S had a well-founded fear that he would be subjected to persecution as a "black child" because he would not be registered, were he to return to China: Chen Shi Hai [2000] HCA 19 ; 201 CLR 293 at 303-304 [29] - [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 56 Instead, the tribunal constructed a syllogism in its reasoning for rejecting S's claim entirely. First, it said that the status of a "black child" could be removed once the social compensation fee was paid. Secondly, the authorities may impose a fee which the husband and wife may not be able to pay immediately, but they may be able to pay it by instalments. Therefore, the tribunal asserted, there was no real chance that S would be treated as a "black child" because he would be able to be registered. 57 The critical question which the tribunal avoided by its syllogism was whether there was a real chance that S's household registration would not occur for a period of time sufficiently long, during which he would be denied access to State services ordinarily provided to children and citizens, so that he would suffer serious and systemic discrimination as a "black child". The tribunal made no finding at all about what the parents might be required to pay, let alone how long it would take them to pay that sum. The tribunal did not make any finding that the family planning laws were not enforced in relation to the payment of the social compensation fee. If there were a real chance that S would not be able to be registered for some substantial period due to the size of the fee and the time it would take for his parents to pay it in full, then it is difficult to understand how the tribunal could have come to the conclusion that S faced no real chance of being subjected to serious harm amounting to persecution. This was because he would be a "black child" unless and until the fee was paid in full. 62 Her Honour also appears to have accepted that the tribunal made a finding "as to the ability of the [appellant] parents to pay the social compensation fee" (at [98]). However, the tribunal made no such finding, nor could it have done so on its reasoning process. This was because it only speculated by postulating the possibility that some unspecified fee may be payable, that that may be at a level which the parent appellants may not be able to afford immediately, and that it may be that they would then be given an instalment plan. That non-sequitur did not justify the tribunal finding that there was no real chance that S would not be registered at all or within a reasonable time, having regard to whatever the fee or instalment period may be. As Gleeson, Gaudron, Gummow and Hayne JJ said in Chen 201 CLR at 305 [36]: "Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment. It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution. However, that question is entirely hypothetical and need not be pursued in this case."


case_text: Here, the tribunal made no findings about the impact of any fee which might be imposed. It therefore failed to pose or answer the correct question and committed a jurisdictional error: C raig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Addressing that question may well have involved the tribunal dealing with the third basis on which the appellants argued it had erred. That was that the tribunal had not enquired whether the fee was appropriate and adapted to a legitimate end so as to be a law of general application. Her Honour rejected this argument finding that the tribunal had addressed the correct question in its speculation about what fee might be imposed. It is not necessary to decide this issue. 64 The second ground of appeal was that the husband would continue to breach the one child policy by having more children, were he to return to China. The tribunal recorded that he had made such a claim during an earlier tribunal hearing. Her Honour rejected this argument. The tribunal did not expressly give separate attention to this claim but made a general finding that it was satisfied that the husband had manufactured his claims in order to make a claim for a protection visa and found that he was not a credible witness. The trial judge held that, whether or not the tribunal addressed this matter as a separate claim, the tribunal dealt sufficiently with the possibility that the father might have further children in breach of the one child policy when it considered his other claims. Ultimately, it concluded that it did not accept his claims and was satisfied that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason or that he would be persecuted for any Convention related reason if he returned to China now or in the reasonably foreseeable future. 65 The trial judge noted that the tribunal had rejected the husband's claim that he was of interest to the authorities in China, prior to his departure, by reason of his breaches of the one child policy and that it had found that the imposition of a social compensation fee, in accordance with the law generally applicable in China for breach of the one child policy, did not amount to mistreatment so serious and systematic as to satisfy the requirements of s 91R(1) of the Act. Her Honour concluded that the tribunal's findings sufficiently addressed the possibility that the appellant parents may have more children and that they would then suffer difficulties by reason of the application of the one child policy. This ground was also advanced in the notice of appeal from her Honour. I reject it for the reasons her Honour gave.


case_text: The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at 400 [42] per Kirby J.


case_title: Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291

case_text: The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.