case_text: Federal Magistrate Emmett concluded that the Tribunal was not obliged to deal with claims that are not articulated and which do not clearly arise on the material before it. No claim was made to the Tribunal for persecution on the grounds of political opinion. Her Honour observed, with reference to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] , that an unarticulated claim must be raised squarely on the material available to the Tribunal before it has a duty to consider it. Her Honour also relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [1] where Gleeson CJ stated that, although the Tribunal proceedings are not adversarial, the decision of the Tribunal must be considered in the light of the basis upon which the application was made. 30 The absence of a finding of a relevant fact may amount to jurisdictional error ( NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ( NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" ( NABE at [56]). That includes a requirement to consider all of the claims of the applicants ( NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]). 31 The Tribunal is required to deal with ' the case raised by the material or evidence before it ' ( NABE at [58] citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157). The Tribunal is not limited to the ' case ' articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE at [58]) (emphasis added). At [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: '[t] he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it ' (at [61]). 32 The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '. 33 If the Tribunal makes an error in misunderstanding or misconstruing a claim advanced by the applicant, that can amount to jurisdictional error because of a failure to consider a claim. The claim must, however, ' emerge clearly from the materials before the Tribunal ' ( NABE at [68]). There was no suggestion that the Tribunal is required to consider a claim not made or abandoned before the Tribunal. 34 A claim made to the Department and referred to in the Delegate's decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate's decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim. 35 The conclusion by Emmett FM that the claim to persecution on the ground of political opinion or imputed political opinion was abandoned and that the Tribunal was not obliged to consider it has not been shown to be in error. This ground is rejected.


case_outcome: cited

case_text: In NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 the appellant had, as here, sought to raise fresh grounds of appeal not relied on before the Federal Magistrates Court. As Branson J pointed out at [22], leave is required to argue on appeal an issue not raised below. There, as here, neither the appellant's written submissions nor his affidavit addressed the basis on which the Court must be satisfied that it is expedient and in the interests of justice for the issue to be raised for the first time on appeal. Her Honour said at [26] that it is not appropriate to grant an appellant leave to raise an issue simply because, as he contended, it would be just to allow him to do so. If the issue upon which an appellant wishes to rely for the first time is without merit, leave should not be granted to raise the issue before this Court. 22 The affidavit contains general, broad assertions that the applicants' ' migration agent ' was ' undermining ' the case before the Tribunal, that the agent's behaviour was ' unethical ', that he had done ' damage ' to the applicants, had made submissions without instructions and had ' damaged the credibility of our refugee application immeasurably before the eyes of the Tribunal '. The male applicant said that he had not known what was being said, as the discussions were not interpreted. 23 He also says that his counsel in the hearing before Emmett FM ' has disappointed us by advancing mostly unsustainable arguments with only one exception '. He asserts, with respect to his previous lawyers that ' one has seriously damaged our case while being paid by us and the other has done our case without much competence '.


case_text: Whether a decision is interlocutory or final depends on the legal effect of the judgment ( Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] ). There is a conflict of authority in this Court as to the position where a Federal Magistrate finds an appeal incompetent for failure to comply with s 477 of the Act yet also makes a decision "on the merits" to dismiss the appeal ( SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 227 ALR 683 at [68]-[69]). That conflict does not require resolution here. For the reasons which follow, the proposed grounds of appeal have no prospects of success. It follows that, independently of the applicants' explanation for what is a very short delay, neither leave to file an extension of time nor leave to appeal should be granted.


case_text: The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '.


case_text: None of the matters raised or information cited are referred to in the Tribunal's reasons. They do not form the reason or part of the reason for its decision. The Tribunal was not obliged to provide particulars of its reasoning, nor of defects in the applicants' case ( SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [206] , [223]). 43 Section 424A(1) has no application. This ground is without merit. This was not a ground relied upon before the Federal Magistrate where the applicants were legally represented and no good reason is given why it is now being raised for the first time on appeal or why it is in the interests of justice for it to be considered. 44 Leave to rely on this ground should be refused.


case_title: SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 227 ALR 683


case_title: W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788


case_text: The joint submissions first addressed the question of the Court's jurisdiction to review the decision under the ADJR Act. The parties contended that the decision was one of an administrative character made under an enactment, being reg 5.10 of the Patents Regulations . Reference was made to A Goninan & Co Ltd v Commissioner of Patents [1997] FCA 424 ; (1997) 75 FCR 200 which involved review under the ADJR Act of a decision made pursuant to reg 5.10(2) of the Patents Regulations to allow further time for the filing of evidence. I am satisfied that the Court has jurisdiction and power to make the order sought. 19 IGT submits to the Court as part of the joint submissions, that the making of the decision was an improper exercise of the power conferred by reg 5.10(4) in that: (i) it constituted the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, in contravention of sections 5(1)(e) and 5(2)(f) of the AD(JR) Act; (ii) in exercising the power, the Delegate failed to take account of relevant considerations, in contravention of sections 5(1)(e) and 5(2)(b) of the AD(JR) Act. The joint submission then went on: Aristocrat accepts, solely for the purpose of the Court making the consent orders sought by IGT and Aristocrat that it is open to the Court to so find. It may be observed immediately that there can be no question of any contravention of s 5 of the ADJR Act. That section identifies grounds of review. It does not mandate or prohibit conduct by decision-makers.


case_text: The 'rule' or 'policy' relied upon by IGT as fettering the delegate's discretion was '... a particular requirement as a pre-condition to the exercise of his power under regulation 5.10(4) namely that the Further Evidence be "crucial" or "vital" to the determination of the opposition or alternatively, that it must "add substantially" to IGT's case ...'. In posing that requirement the delegate is said to have foreclosed the balancing exercise which he was required to undertake in exercising his discretion. Aristocrat accepted, for the purpose of the consent orders, that it was open to the Court so to find. The delegate did refer to another delegate decision in Emory University v Biochem Pharma Inc [1999] APO 50 , if the further evidence '.... did not add substantially to the case compared with previous evidence already served then the further evidence could be refused.' So framed, consideration of the significance and substantiality of the evidence would be perfectly legitimate as a relevant consideration. However, in the reasons the delegate did say (at [16]): It would seem IGT's present application to serve further evidence, with the consequential further delay, could only be justified in this case if the further evidence was significantly different from the initial evidence served in support and crucial to advancing the proper determination of the opposition on its merits. 21 Without determining the point finally, I accept that it is arguable that the delegate, in so expressing himself, could be taken to have elevated the significance of the evidence to a determinative factor effectively excluding consideration of other matters. I emphasise that I do not find that this was the legal effect of the delegate's remark. However, the possibility of error which both parties have accepted, is sufficient to support the consent order which is now sought as being within power and appropriate. I will therefore make the order proposed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: 17 January 2008 Counsel for the Applicant: Mr P Mallon Solicitor for the Applicant: Mallon & Co Lawyers Pty Ltd Counsel for the Second Respondent: Ms Taliadoros Solicitor for the Second Respondent: Gilbert & Tobin Date of Joint Submissions: 15 January 2008 Date of Judgment: 17 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/15.html


case_text: On 4 October 2005, Crennan J dismissed the appellant's application to the Court for relief against the respondents for alleged infringement of the appellant's registered trade mark for the words 'The Hunchback of Notre Dame': see Christodoulou v Disney Enterprises Inc [2005] FCA 1401. Her Honour, applying a line of well-established authority, concluded that the allegedly infringing uses by the respondents of the words 'The Hunchback of Notre Dame' in relation to films and related products were not uses of the words 'as a trade mark'. Her Honour concluded (at [71]): 'Like the appellant in Rolling Stones , the appellant's case appears to be "an attempt to obtain a monopoly over words used to describe a lawful product" (per Gummow and Heerey JJ at 377). The words used by the respondents in the promotion of the Disney films are use of an established title of the story portrayed. A recognised title of an adaptation or cartoon version of a well-known story is descriptive. The descriptive meaning of these words was established well before the applicant applied for registration of his trade mark. The purpose and nature of each use is to describe the respondents' products accurately. The uses are not for the purposes of indicating a relevant connection in the course of trade or to distinguish the respondents' goods from those of other traders. The uses do not amount to "use(s) as a trade mark" within the meaning of s 120 of the Act.' 2 On 25 October 2005, the appellant filed a 36 page notice of appeal. On 23 November 2005, the respondents moved the Court for orders requiring that the Notice of Appeal be amended because it did not comply with O 52 r 13(2)(b) of the Federal Court Rules which requires that the notice state 'briefly, but specifically, the grounds relied upon in support of the appeal'. The respondents also sought an order for security for costs in the amount of $70 000. 3 On 20 December 2005, I ordered that the notice of appeal be struck out because it failed to comply with O 52 r 13(2)(b). Pursuant to leave granted, the appellant subsequently filed a notice of appeal which narrows and limits the grounds of appeal. 8 In support of their contention that the appeal is 'without merit or substance' the respondents stated: 'As the reasons of Crennan J indicate, this case is simply an application of simple facts to a well developed body of law which has been established by the High Court and Full Court in cases such as Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR 404, Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326, Musidor BV v Tansing (1994) 52 FCR 363 and Registrar of Trademarks v Woolworths Ltd [1999] FCA 1020 ; (1999) 93 FCR 365.' 9 The submissions also state: 'With respect, Christodoulou appears to continue to misunderstand basic trade mark law. The cost of educating him of the same should not be borne by Disney. It appears that Christodoulou has mistakenly applied the monopoly rights of copyright and patent law to trade marks in that in his opinion, any use of a registered trade mark is use as a trade mark . With respect, this would mean, in Christodoulou's view, as can be clearly seen from his affidavit and notice of appeal, simply using the words "The Hunchback of Notre Dame" in any context at all is "use as a trade mark". As Crennan J said at [71], citing Gummow and Heerey JJ in the Rolling Stones case (Musidor BV) , "the appellant's case appears to be 'an attempt to obtain a monopoly over words used to describe a lawful product'".' (emphasis in original) 10 While I am conscious of the difficulties involved in a single judge speculating on the prospects of success of an appeal, the appellant has failed to satisfy me that it is reasonably arguable that the decision of the primary judge is attended by any appellable error. 11 As to the second criterion, there can be no doubt that there appears to be no real prospect of the respondents recovering any costs if they succeed on the appeal.


case_outcome: affirmed

case_text: appeal is from a judgment of the Federal Magistrates Court, delivered on 21 November 2008, and published as MZYBC v Minister for Immigration and Anor [2008] FMCA 1567. The learned federal magistrate dismissed with costs an application by the appellant to review a decision of the second respondent to the appeal, the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. The appellant is a citizen of Sri Lanka. She arrived in Australia on 12 April 2007. On 21 May 2007, she applied for a protection visa. On 10 July 2007, the Minister's delegate made a decision refusing to grant her a protection visa. Unfortunately, by letter dated the same date, the appellant's migration agent was mistakenly advised that the appellant had been granted a protection visa. The letter was erroneous in that, although it included in the heading the name of the appellant, following the abbreviation "Ms", the references to the migration agent's client in the letter were all expressed in the male gender. The error was corrected by a subsequent letter dated 16 July 2007, which enclosed a copy of the earlier decision record, giving the delegate's reasons for refusing the application. The appellant applied to the Tribunal for review of the decision. The Tribunal conducted a hearing on 10 October 2007, at which the appellant gave oral evidence through an interpreter in the Sinhalese language, and at which the appellant was represented by a migration agent. The Tribunal's decision was dated 1 May 2008 and handed down, or sent to the appellant, on 3 June 2008.


case_text: After attempting to give evidence from the bar table, Mr Morrison ultimately elected to give oral evidence. An alleged contemnor must be allowed a reasonable opportunity to put before the Court any explanation of his or her evidence and any submissions of fact or law relevant to the charge against him or her or any punishment (see: Coward v Stapleton [1953] HCA 48 ; (1953) 90 CLR 573 ; Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510). Although I considered Mr Morrison had been given a reasonable opportunity to put his case before the Court, I allowed him to give evidence because he indicated that there were matters which had only occurred to him during the course of the hearing.


case_title: Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510


case_text: In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J identified the elements which it is necessary for a complainant to establish in order to make good a charge of civil contempt of court. His Honour said: "[31] In order to prove a civil contempt of court involving a breach of an order of the court, the plaintiff has to prove the following: (i) that an order was made by the court; (ii) that the terms of the order are clear, unambiguous and capable of compliance; (iii) that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) that the alleged contemnor has knowledge of the terms of the order; and (v) that the alleged contemnor has breached the terms of the order. [32] It is necessary for the plaintiff to prove each element beyond reasonable doubt. In accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary."


case_text: As noted by his Honour, the standard of proof required for each of the elements of a charge of contempt of this Court is proof beyond reasonable doubt (see: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534). 37 There is no dispute, and I am satisfied that: • Paragraph 1 of the orders I made on 28 September 2007 was an order of the Court. • The Order was clear, unambiguous and capable of compliance; • The Order was personally served on Mr Morrison on 4 October 2007 and was served on the respondent on 3 October 2007; and • Mr Morrison had knowledge of the terms of the Order.


case_text: In Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 Gibbs CJ, Mason, Wilson and Deane JJ said (at 112 113) that: "...lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. ... a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional." 41 It is clear that Mr Morrison's affidavit does not, in terms, comply with the Order. A breach of an order will be considered deliberate if it is not found to be casual, accidental or unintentional. The onus remains on the party seeking to prove the contempt to prove that the alleged contemnor's conduct is not casual, accidental or unintentional.


case_text: It was not disputed that the respondent had knowledge of the terms of the Order. On the facts of this case, there can be no doubt that Mr Morrison's mind is the mind of the respondent (see: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127 referring with approval to Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). I am, therefore, satisfied that the respondent had knowledge of the terms of the Order.


case_title: Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153


case_text: respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.


case_title: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720


case_title: Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465


case_title: Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137


case_title: White Industries Aust. Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_outcome: followed

case_text: It was the task of the Tribunal to make findings of fact and no reviewable error is exposed simply because those facts were resolved against the now Appellant. This Court should not go beyond its task of judicial review and trespass into the area of reviewing the merits of the decision as determined by the Tribunal: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.


case_outcome: considered

case_text: Moreover, an administrative tribunal is not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required to give a subset of reasons as to why it accepted or rejected individual pieces of evidence: cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746.


case_text: One matter addressed in the Appellant's written Outline of Submissions may give further content to what is intended to be conveyed by the first Ground of Appeal . Those submissions refer to the findings as to inconsistency in the evidence and contend that " the Tribunal did not accept the applicant's involvement with the Telegu Desam party but the Tribunal did not show ... why it did not accept that the applicant's involvement in the party ". In reviewing the approach of the Tribunal to the evidence given by the Appellant, it is of obvious importance to consider the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances and to substantiate their claims: Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 U Tas LR 43. In Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J has also helpfully given the following reminder: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.


case_title: Guy v Repatriation Commission [2002] FCA 525


case_text: Within those constraints, however, the role of making findings of fact is a role entrusted by the legislature to the Refugee Review Tribunal. Clearly enough, in the present proceedings the Tribunal made adverse findings as to the Appellant's lack of credibility and those findings played an important part in its ultimate conclusion. Where, as in the present case, the Tribunal's findings of credibility are open to it on the material, based on rational grounds and arrived at after a consideration of matters that are logically probative of the issues of credibility, those findings of the Tribunal are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J.


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1


case_text: On 31 January 2008 the Federal Magistrates Court delivered its reasons for its decision to dismiss the application seeking review of the Tribunal's decision: SZKSU v Minister for Immigration & Citizenship [2008] FMCA 77. 6 The Appellant now appeals to this Court from the decision of the Federal Magistrate. 7 The Grounds of Appeal as set forth in the Notice of Appeal (without alteration) provide as follows: GROUNDS. 1. The Federal Magistrates Court did not consider that the Refugee Review Tribunal (the Tribunal) did not assess the applicant's claim properly. The Federal Magistrate Court mentioned in para 59 that.'Merely because the Tribunal was not convinced to accept the applicant's claims.' 2. The Federal Magistrates Court did not consider that the Tribunal made a jurisdictional error when it did not accept the applicant's claim and evidences when the Tribunal asked the applicant some questions which confused him 3. The Federal Magistrates Court did not consider that the Tribunal made a procedural mistake when it did not explain to the applicant the reasons for two hearings and why some questions need to be repeated at the second hearing


case_text: On its merits the motion for review must fail. There is no basis upon which I could be satisfied that a determination over a Torres Strait regional sea claim area may affect any interest of Pastor Dorogori. In so concluding I have regard to the principles for the identification of relevant interests in Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46 and various cases in which that case has been followed. A relevant interest, as was said in Arakwal 148 ALR 46, must be (at 51): ... capable of clear definition and, equally importantly, ... of such a character that they may be affected in a demonstrable way by a determination in relation to the application. 19 I took account of all the material relied upon by Pastor Dorogori. He asserts in reliance upon that material: 1. That he has a link to the claim area. 2. That he and the people he represents have a history in the Torres Strait claim area. 3. That he is the owner of reefs, seas and waters in the claim area. The assertion of ownership of reefs, seas and waters is no more than that. No historical basis for such a claim is disclosed. The location of areas allegedly owned by Mr Dorogori and his people is not disclosed. The fact that he may be descended from people who came from an island in the Torres Strait does not, of itself, support the inference that there is some kind of interest which may be affected by a determination. 20 In my opinion the motion should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 7 December 2007 Counsel for the Applicant: Mr R Blowes SC Solicitor for the Applicant: David Saylor, Torres Strait Regional Authority Pastor G Dorogori appeared in person Counsel for the Commonwealth: Ms R Webb QC Solicitor for the Commonwealth: Counsel for the State of Queensland: Solicitor for the State of Queensland: Counsel for various commercial fishing parties: Solicitor for the various commercial fishing parties: Counsel for Mr P Gamogab: Solicitor for Mr P Gamogab Counsel for Mr PN Sawabarri: Solicitor for Mr PN Sawabarri: Australian Government Solicitor Mr G Hiley QC State Government Solicitor Mr P Gore Gore & Associates Mr T Fisher Fisher Dore Mr D Kempton David Kempton Mr Songoro appeared for the Songoro family Mr Gamia appeared for the Gamia family Mr F Warapa appeared in person and for the Buzi and Ber villages Mr R Gibuma appeared in person and for Sigabaduru Village Mr G Neate appeared for the National Native Title Tribunal Date of Hearing: 16 November 2007 Date of Judgment: 7 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1940.html


case_text: Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].


case_text: The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].


case_title: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28


case_title: Comcare v Etheridge [2006] FCAFC 27

case_text: The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 8 At the first directions hearing I drew the attention of Mrs Brown's counsel to the fact that there were recent Full Court authorities touching on appeals under s 44(1) of the AAT Act and referred him to the Etheridge judgment in particular. There was an exchange between us concerning the proper formulation of a question of law, the requirements of O 53 r 3(2) of the Federal Court Rules and the alternative source of jurisdiction provided by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). Counsel disavowed any wish to rely on the ADJR Act but sought, and was granted, leave to file and serve an amended notice of appeal pursuant to s 44(1) of the AAT Act. 9 The amended notice of appeal purports to identify the following questions of law: '2.1 Whether the Tribunal, in determining that the death of the veteran within the meaning of "death" in sections 8 and 120 of the Act, and the only kind of death within the meaning of "kind of death" in section 120A of the Act, was from non-Hodgkins lymphoma, mistook the evidence given by Dr Edwards. 2.2 Further or in the alternative to paragraph 2.1, whether, on the proper construction of "death" as that term appears in sections 8 and 120 of the Act and "kind of death" as that term appears in section 120A of the Act, and given purported reliance by the Tribunal upon the evidence given by Dr Edwards, the meaning of those terms necessitated the Tribunal finding that the "death" and/or "kind of death" of the veteran was or included death from pneumonia-related infection. 2.3 Whether the Tribunal afforded procedural fairness to the parties when it decided that the veteran had suffered a "kind of death" different from the "kind of death" put to it by the parties.' 10 As counsel for the applicant conceded at hearing, question 2.1 is not a question of law. What was the understanding of the Tribunal on any issue is a question of fact. It is not appropriate for the Court on an appeal under s 44(1) to undertake a comparison of the Tribunal's understanding of a particular issue with the evidence adduced before it for the purpose of determining whether the Tribunal misunderstood the evidence. Question 2.1 is therefore incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 11 Question 2.2 is not easy to understand. It appears to involve some questions of law; ie the proper construction of statutory expressions. However, it also appears to call for an evaluation of the evidence given by Dr Edwards. It is thus a mixed question of fact and law and, for this reason, not a question of law within the meaning of s 44(1) of the AAT Act (see Etheridge at [16]). Therefore, it is also incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 12 Question 2.3 is intended to raise for consideration whether the decision of the Tribunal should be set aside because the Tribunal: (a) was obliged to afford Mrs Brown procedural fairness; and (b) failed to do so in that it reached the conclusion that the kind of death suffered by Mr Brown was non-Hodgkin's lymphoma when that conclusion was not urged on the Tribunal by either Mrs Brown or the Repatriation Commission. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].


case_text: The suggestion that the Tribunal failed to afford Mrs Brown procedural fairness in respect of its decision that the kind of death met by Mr Brown was non-Hodgkin's lymphoma is fully met by the above extracts from the hearing transcript. An administrative tribunal such as the AAT is not obliged to accept a submission put to it jointly by the parties to a dispute. The duty of the AAT is to make the correct or preferable decision in the circumstances ( Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). 36 The above extracts from the Tribunal hearing reveal that the Tribunal let the parties know the approach that it proposed to take, and gave them an opportunity to be heard on whether it should find that the kind of death met by Mr Brown was pneumonia. The Tribunal could hardly have made it plainer that, if it concluded that pneumonia was simply a terminating event in Mr Brown's death, it was unlikely to find that he met a 'pneumonia kind of death'. The respondent's representative showed his appreciation of the approach foreshadowed by the Tribunal in the statement reproduced in [34(c)] above. 37 Mrs Brown was not denied procedural fairness by the Tribunal in the way alleged in paragraph 2.3 of the amended notice of appeal or at all.


case_outcome: referred to

case_text: The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought.


case_title: Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38


case_text: The Court has not yet sought to provide definitive guidance on the meaning of 'kind of death' in s 120A although the concept has been considered in Repatriation Commission v Hancock (2003) 37 AAR 383 and Repatriation Commission v Towns (2003) 38 AAR 77. This is not an occasion for the provision of that definitive guidance.


case_title: Repatriation Commission v Towns (2003) 38 AAR 77


case_text: His Honour observed that the High Court had revisited the question whether the approach taken in Jolliffe correctly stated the law on at least two occasions. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 Gaudron, McHugh, Gummow and Hayne JJ said (at [33]). "In Kauter v Hilton , the Court treated Jolliffe as deciding, for the purposes of the legislation there in question, that "[a]ll the relevant circumstances must be examined in order to determine whether the depositor really intended to create a trust"." (Footnote omitted.)


case_outcome: discussed

case_text: In B & M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B & M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B & M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.) 72 Dr Glover also submitted that both Starr v Starr and B & M were wrongly decided. I reject that submission. I cannot see how the parol evidence rule can apply, with full rigour, in circumstances where the actual state of mind of the declarant must be ascertained. If the submission were correct, it would lead to peculiar outcomes. For example, evidence could not be received of a contemporaneous oral statement by a declarant that, despite the use of the term "declaration of trust" in a document then executed, no such trust was actually intended. That would be contrary to what the majority in Jolliffe identified as the task to be undertaken in determining whether a declaration of trust had been made.


case_text: Dr Glover submitted, albeit only formally, that the majority judgment in Jolliffe did not state the law correctly, and that the dissenting judgment of Isaacs J should be preferred. He acknowledged, however, that the majority judgment was binding upon me. That is obviously so, particularly since Jolliffe has been cited without disapproval in later High Court decisions. It has also been applied by the Full Court of this Court. See, for example, Baker v Official Trustee in Bankruptcy , Federal Court of Australia, unreported, 3 August 1995 per Burchett, Ryan and Carr JJ; and Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422.


case_text: It should be noted that most judicial statements of the parol evidence rule are concerned with its application to contracts. See, eg, Bank of Australasia v Palmer [1897] AC 540 at 545. Plainly, the test for intention in the law of contract is objective, and not subjective. In such circumstances, one can readily understand the difficulty in seeking to lead evidence of the subjective intent of the parties, (unless one enters into the realm of sham). Jolliffe establishes that the test for intention in relation to a declaration of trust is subjective. In principle, therefore, the parol evidence rule would not be expected to operate to exclude evidence which bears upon the actual intent of the declarant at the time of the purported declaration of trust.


case_text: It is clear that s 27 enables the Court to receive further evidence even though the more stringent common law requirements which apply in relation to fresh evidence have not been satisfied: Cottrell v Wilcox [2002] FCAFC 53 at [20] citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184 186 per Gaudron J, 199 201 per McHugh, Gummow and Callinan JJ and 230 238 per Kirby J. Nonetheless, some factors regarded as relevant to the reception of fresh evidence are also relevant when considering whether to receive further evidence. In particular, the Court will have regard to the cogency of the further evidence, and the chances that it would have led to a different result if tendered at the trial.


case_outcome: applied

case_text: His Honour referred to Commissioner of Stamp Duties (Queensland) v Jolliffe [1920] HCA 45 ; (1920) 28 CLR 178 at 181 where Knox CJ and Gavan Duffy J applied the following statement in Lewin on Trusts (11 th ed, 1904) at p 85: "It is obviously essential to the creation of a trust, that there should be the intention of creating a trust, and therefore if upon a consideration of all the circumstances the Court is of opinion that the settlor did not mean to create a trust, the Court will not impute a trust where none in fact was contemplated". 56 Young CJ in Eq observed that this passage had been included in all subsequent editions of Lewin up to and including the sixteenth (1964) edition. However, in the seventeenth edition (2000) the authors suggested that the dissenting judgment of Isaacs J (who favoured an objective, rather than subjective test when considering whether a trust had been declared) would today be preferred in England. His Honour commented (at [38]): "Whether this is so or not, Jolliffe's case , or at least Jolliffe's case as interpreted by later decisions of the High Court, is binding on me." 57 His Honour observed that the High Court had revisited the question whether the approach taken in Jolliffe correctly stated the law on at least two occasions. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 Gaudron, McHugh, Gummow and Hayne JJ said (at [33]). "In Kauter v Hilton , the Court treated Jolliffe as deciding, for the purposes of the legislation there in question, that "[a]ll the relevant circumstances must be examined in order to determine whether the depositor really intended to create a trust"." (Footnote omitted.) 65 It should be noted that most judicial statements of the parol evidence rule are concerned with its application to contracts. See, eg, Bank of Australasia v Palmer [1897] AC 540 at 545. Plainly, the test for intention in the law of contract is objective, and not subjective. In such circumstances, one can readily understand the difficulty in seeking to lead evidence of the subjective intent of the parties, (unless one enters into the realm of sham). Jolliffe establishes that the test for intention in relation to a declaration of trust is subjective. In principle, therefore, the parol evidence rule would not be expected to operate to exclude evidence which bears upon the actual intent of the declarant at the time of the purported declaration of trust. 67 In Starr v Starr [1935] SASR 263, Napier J referred to Jolliffe , and stated (at 266): "It may well be that a court of co-ordinate jurisdiction might regard the authority of that case as impaired by the emphatic dissent of Isaacs J., but I think that I am bound by the principle upon which the case was decided." 68 Napier J noted that Isaacs J had referred to the parol evidence rule. His Honour then referred to the following statement from the majority judgment in Jolliffe (at 181): "We know of no authority, and none was cited, which would justify us in deciding that by using any form of words a trust can be created contrary to the real intention of the person alleged to have created it." 69 Napier J concluded that parol evidence was admissible to show that the various declarations of trust in issue in the case before him were never intended to operate as binding declarations of trust. 71 Dr Glover submitted, albeit only formally, that the majority judgment in Jolliffe did not state the law correctly, and that the dissenting judgment of Isaacs J should be preferred. He acknowledged, however, that the majority judgment was binding upon me. That is obviously so, particularly since Jolliffe has been cited without disapproval in later High Court decisions. It has also been applied by the Full Court of this Court. See, for example, Baker v Official Trustee in Bankruptcy , Federal Court of Australia, unreported, 3 August 1995 per Burchett, Ryan and Carr JJ; and Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422. 72 Dr Glover also submitted that both Starr v Starr and B & M were wrongly decided. I reject that submission. I cannot see how the parol evidence rule can apply, with full rigour, in circumstances where the actual state of mind of the declarant must be ascertained. If the submission were correct, it would lead to peculiar outcomes. For example, evidence could not be received of a contemporaneous oral statement by a declarant that, despite the use of the term "declaration of trust" in a document then executed, no such trust was actually intended. That would be contrary to what the majority in Jolliffe identified as the task to be undertaken in determining whether a declaration of trust had been made.


case_title: Cottrell v Wilcox [2002] FCAFC 53


case_text: In Williams v Grant [2004] FCAFC 178 no explanation was offered for the failure to adduce particular evidence before the primary judge. That was regarded as relevant when leave to adduce further evidence was refused. Similarly, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Court refused to receive further evidence, essentially because there was no suggestion that it had been unavailable prior to trial. 70 In B & M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B & M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B & M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.)


case_text: In that regard I should explain that his Honour was invited by counsel for Mr Lofthouse to follow the decision of Young CJ in Eq in Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 (approved by the New South Wales Court of Appeal in Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72).


case_title: Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72


case_title: Marchesi v Apostoulou [2006] FCA 1122

case_text: It was common ground before me that Ms Owens had the onus of establishing the existence of the trust that she asserted. The only conceivable way that she could do so, in this case, would be to have the declaration of trust not merely accepted as genuine, but also construed as manifesting the intention to declare a trust. The failure to take any steps beyond executing the document meant that no other form of trust could arise: see Marchesi v Apostoulou [2006] FCA 1122 at [13] [28] and the cases cited therein. 48 In those circumstances, Mr Lofthouse had no choice other than to initiate proceedings in the Federal Magistrates Court in order to clarify the ownership of the properties. The appellant elected not to place any evidence before that Court explaining why she had contended for so long that the properties were beneficially owned by her. 49 Even if one were to accept the document purportedly executed by Ms Owens on 20 December 2000 as authentic, it cannot, in my view, be regarded as a valid declaration of trust. It goes without saying that the document is poorly drafted. At the very least, it demonstrates that Ms Owens was unclear as to precisely what she intended at the time. A declaration of trust does not speak of the trustee (in this case Ms Owens) having "agreed to transfer" her interest to a third party (in this case the Richardson Trust). The fact that at two points in the document the words "declaration of trust" are used cannot be regarded as conclusive of that having been the appellant's intention (just as the failure to use those precise words would not be conclusive against her having had that intention). 50 In addition, the operative provision of the document is completely at odds with what may be described as "the recitals". It is true that equity has traditionally allowed a measure of latitude towards those who create documents which purport to constitute express trusts. However, there is no authority of which I am aware that suggests that the Court should, in effect, entirely reconstruct a document which is as badly drawn, and unclear, as this. 51 It may be, as the respondent acknowledges, that McInnis FM did not always keep clear the distinction between the principles that govern a declaration of trust, and those that govern the creation of a trust by transfer. Nonetheless, his Honour's factual findings, and his willingness to receive evidence of the subsequent acts of the appellant as bearing not only upon the authenticity of the document but also whether, as drawn, it reflected a genuine intention to declare a trust, are in my view unimpeachable.


case_text: In Milroy v Lord [1861 1873] All ER Rep 783, Turner LJ famously observed (at 789): "I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon himself. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provisions will then be effectual; and it will be equally effectual if he transfers the property to a trustee for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol. But in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to protect an imperfect gift. The cases, I think, go further, to this extent, that if the settlement is intended to be effectual by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." 75 His Lordship's comments are entirely apposite to this case. Ms Owens has not discharged the ultimate onus of establishing a declaration of trust preceding her bankruptcy. McInnis FM was correct to so find. There was overwhelming evidence, based upon her subsequent conduct, that she did not regard herself as holding the properties on trust for anyone. That evidence was admissible, particularly in circumstances where the declaration of trust itself was, to put it kindly, an ambiguous and uncertain document. 76 Although it is unnecessary finally to determine whether I would, in the exercise of my discretion, receive the further evidence proffered, I should indicate that my inclination would be not to do so. I do not regard that evidence as cogent, and certainly not sufficiently cogent to warrant its reception. Even Ms Johansson's evidence, which I do accept, only demonstrates that the document in question was created at least three years ago. It does not demonstrate that, as Ms Owens claims, it was executed in December 2000. Three years ago Ms Owens was already fully immersed in difficulties with her creditors, and the creation of that document at any point after about early 2003 would be of no assistance to her. 77 In any event, for the reasons set out earlier in this judgment, primarily on the issue of construction, the reception of this further evidence would not have affected the outcome of this proceeding. 78 The appeal must be dismissed with costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 12 December 2007 Counsel for the Appellant: Dr J Glover Solicitor for the Appellant: The Appellant appeared in Person Counsel for the Respondent: Mr S Gardiner Solicitor for the Respondent: Aitken Walker & Strachan Date of Hearing: 30 November 2007 and 5 December 2007 Date of Judgment: 12 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1968.html


case_text: Section 27 has been considered in a number of recent cases. In Williams v Official Trustee in Bankruptcy [2000] FCA 304 the Full Court observed (at [34]) that it was necessary for the proponent of the further evidence to establish that it could not, with reasonable diligence, have been discovered before trial. However, in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 the Full Court expressly stated (at [7]) that it was unnecessary to decide whether, in the proper exercise of the Court's discretion, the party seeking to adduce further evidence had to satisfy that requirement.


case_text: In Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577 Stone J, after discussing a number of relevant authorities, said (at [6]) that the evidence "must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial". 37 As part of the process of determining whether to receive the appellant's further evidence in this case, I indicated that I would hear what both she, and her daughter, had to say on a provisional basis, without at that stage ruling upon the admissibility of the affidavit material. I did so because I regarded the cogency of the proposed further evidence highly relevant to the exercise of my discretion. Both the appellant and her daughter were cross-examined. Indeed, the appellant was cross-examined a second time. Ms Johansson, whose affidavit was filed at a later point in time, was also cross-examined. 38 I can deal with the evidence of the appellant's daughter very briefly. In her affidavit she deposed to having been informed by her mother of the "declaration of trust" shortly after it was executed (which she stated was 20 October 2000 rather than 20 December 2000). It soon became clear, under cross-examination, that she had no recollection whatever of this event. Nor did she have the slightest understanding of anything that may have occurred. Her only knowledge of a trust appeared to relate to the Richardson Trust. Her evidence could not possibly provide any support for the appellant's claim that the declaration of trust was executed in December 2000. I therefore declined to receive her evidence pursuant to s 27. 39 I turn next to the appellant's two affidavits, which were affirmed on 13 November 2007 and 3 December 2007 respectively. The first thing to note about the affidavit affirmed on 13 November 2007 is that the version served on the respondent contained a number of errors. In that version Ms Owens said that she prepared and signed the declaration of trust on 20 October 2000 (rather than on 20 December 2000, the date the document bears). In other words, she made precisely the same mistake regarding this critical date as did her daughter. She repeated that error on several occasions. However, the version that was eventually filed with the Court on 20 November 2007 contained handwritten amendments which changed the references from "October" to "December". 40 In her 3 December 2007 affidavit, the appellant again misstated the date upon which the declaration of trust had been executed, this time saying that it was 20 December 2007. Plainly, that was a typographical error, though it illustrated a degree of laxness on the part of the appellant towards the accuracy of material filed with the Court that seems to have permeated almost all of her many affidavits filed in relation to her bankruptcy.


case_text: The traditional constraints which govern the reception of "fresh evidence" on appeal, at common law, are that the party seeking to adduce that evidence must show that reasonable diligence was exercised to procure the evidence for the trial, and that it is tolerably clear that had it been available, and led, an opposite result would have been achieved: Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635 and 640.


case_title: Re Cozens [1913] 2 Ch 478

case_text: Young CJ in Eq acknowledged that it was possible to create a trust by declaration without communication to any person. However, he noted that in Re Cozens [1913] 2 Ch 478 it had been held that the absence of any such communication raised a strong inference against an intention to create such a trust. In the end, he concluded that the evidence taken as a whole clearly established that, despite the execution of the declaration of trust, Mr Yazbek had not genuinely intended to hold the shares on trust for anyone. In a telling observation, his Honour stated (at [86]): "The proper conclusion is that Mr Yazbek and his advisors were seeking the best of all worlds. The trust deed was in existence, but it was never seriously considered until the time came for it to be given significance about the time of Robert Yazbek's bankruptcy." 59 The appeal to the New South Wales Court of Appeal was dismissed. Hodgson JA (with whom Mason P and Handley JA agreed) stated (at [45] [46]): "I accept that the signing of the declaration, and having it witnessed, is some evidence of the required intention, and that there was an onus on Mr. Leroy to rebut that intention. However, this onus on Mr. Leroy was an evidentiary onus, and the ultimate onus remained on the appellants to prove the creation of a trust. The existence of this ultimate onus had some significance in this case, where there was substantial evidence tending to rebut an intention to create a trust. The substantial evidence against an intention to create a trust in this case was the passage of over five years, when (with small exceptions) all documents that were created by Mr. Yazbek, and/or Mr. Alexandrou or Mr. White on Mr. Yazbek's instructions, relating to the Trust and Aldora, were inconsistent with the existence of a trust, and consistent only with beneficial ownership of the shares by Mr. Yazbek." 60 On 4 February 2005 the High Court declined to grant special leave to appeal from the decision of the New South Wales Court of Appeal. 61 Dr Glover, who appeared on behalf of the appellant, submitted firstly that Hyhonie was not binding upon me, and next that it was wrongly decided. He submitted that the judgments at first instance and in the Court of Appeal were per incuriam because they ignored the parol evidence rule. That submission must be addressed. 62 The parol evidence rule is regarded as a rule of substantive law, and not a rule of evidence: see S Odgers, Uniform Evidence Law (7 th ed, Lawbook Co, 2006) at [1.3.200]. It is not affected by the enactment of the Evidence Act 1995 (Cth).


case_text: I note that the discretion to receive "further evidence" on appeal is conferred by s 27 of the Federal Court of Australia Act 1976 (Cth). That discretion must be exercised judicially, consistently with proper process and in the interests of justice: Sobey v Nicol and Davies [2007] FCAFC 136 at [71] .


case_title: Starr v Starr [1935] SASR 263

case_text: In Starr v Starr [1935] SASR 263, Napier J referred to Jolliffe , and stated (at 266): "It may well be that a court of co-ordinate jurisdiction might regard the authority of that case as impaired by the emphatic dissent of Isaacs J., but I think that I am bound by the principle upon which the case was decided." 70 In B & M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B & M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B & M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.) 72 Dr Glover also submitted that both Starr v Starr and B & M were wrongly decided. I reject that submission. I cannot see how the parol evidence rule can apply, with full rigour, in circumstances where the actual state of mind of the declarant must be ascertained. If the submission were correct, it would lead to peculiar outcomes. For example, evidence could not be received of a contemporaneous oral statement by a declarant that, despite the use of the term "declaration of trust" in a document then executed, no such trust was actually intended. That would be contrary to what the majority in Jolliffe identified as the task to be undertaken in determining whether a declaration of trust had been made.


case_title: Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415


case_title: Williams v Grant [2004] FCAFC 178

case_text: In Williams v Grant [2004] FCAFC 178 no explanation was offered for the failure to adduce particular evidence before the primary judge. That was regarded as relevant when leave to adduce further evidence was refused. Similarly, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Court refused to receive further evidence, essentially because there was no suggestion that it had been unavailable prior to trial.


case_title: Williams v Official Trustee in Bankruptcy [2000] FCA 304