case_text: Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason ACJ said (at 153): "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."


case_outcome: cited

case_text: was debate before me as to the operation of the comity principle in circumstances where a single judge of this Court is called upon to decide an issue previously decided by another single judge of the Court. A judge of this Court should follow the decision of another single judge, unless satisfied that the decision is clearly wrong: Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 at [1] per Finn J; Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] - [76] per French J. The comity principle in the circumstances I have described was discussed in detail by Lindgren J in Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280, and I refer in particular to his Honour's discussion at 294-295 [68]-[74].


case_text: my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.


case_title: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757


case_outcome: referred to

case_title: Kelly v Wolstenholme [1991] 4 ACSR 709

case_text: maintaining a claim that the respondents were not permitted to redact the two documents to the extent to which they had, the applicant outlined three arguments in support of the further ground of review. They were as follows: There was no resolution of the Board making the 2009 Authorisation and Determination. The Board had approved the resolution outside a meeting of the Board. In those circumstances, the Board was required to comply with s 7J of the ACC Act, which is in the following terms: " 7J Resolutions outside of Board meetings (1) This section applies to a resolution: (a) which, without being considered at a meeting of the Board, is referred to all members of the Board; and (b) of which: (i) if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or (ii) if the resolution is that the Board determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members); indicate by telephone or other mode of communication to the Chair of the Board that they are in favour. (2) The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held." The applicant contended that s 7J had not been complied with because the members of the Board had indicated that they were in favour of the resolution not to the Chair of the Board, as required by the section, but to the Chief Executive Officer. The applicant referred to various authorities dealing with the common law principles as to the conduct of meetings and the position of the Chair of a meeting. I will not refer to them all. I simply note two of them: National Dwellings Society v Sykes [1894] 3 Ch 159 at 162 per Chitty J; Kelly v Wolstenholme [1991] 4 ACSR 709 at 712 per Young J. The Board had treated the resolution as passed after nine members had indicated that they were in favour of it, and without regard to the views of two members who indicated that they also were in favour of the resolution. Such a procedure was, so it was contended, contrary to the Board acting as a Board.


case_title: Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752


case_text: applicant then referred to decisions which have considered whether various grounds in s 5 of the ADJR Act embody a "no evidence" or "no probative material" test. In the context of the ground in s 5(1)(a) (a breach of the rules of natural justice occurred in connection with the making of the decision), he referred to Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" Bond ") at 367 per Deane J and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam ") at 232-233 [25]-[29] per Gleeson CJ. In the context of the ground in s 5(1)(f) (the decision involved an error of law), the applicant referred to Bond at 355-358 per Mason CJ; The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150 at 155 per Starke J, at 157 per McTiernan J, at 160-161 per Williams J; Rajamanikkam at 238-240 [49]-[53] per Gaudron and McHugh JJ. In the context of the ground in s 5(1)(h) (there was no evidence or other material to justify the making of the decision; see also s 5(3)), the applicant referred to Bond at 358 per Mason CJ, at 365 per Brennan J, at 369 per Deane J; Rajamanikkam at 233-234 [30]-[34] per Gleeson CJ, at 238-240 [49]-[53] per Gaudron and McHugh JJ, at 250-261 [96]-[125] per Kirby J.


case_title: National Dwellings Society v Sykes [1894] 3 Ch 159


case_title: Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53


case_outcome: discussed

case_text: I understood the applicant's submission, it was that there was simply insufficient material before the examiner for him to be satisfied that it was reasonable in all the circumstances for him to issue the summons. The applicant referred to the speech of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014. In that case, the Secretary of State was given the power by Act of Parliament to give a direction to the primary repository of a power concerning the exercise of the power where he was satisfied that the primary repository of the power had, or was proposing to act, unreasonably. Lord Wilberforce said (at 1047): "(2) The section is framed in a 'subjective' form—if the Secretary of State 'is satisfied.' This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455 , per Lord Denning M.R., at p. 493."


case_title: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73


case_outcome: followed

case_text: have been able to reach that conclusion largely by a process of construing the relevant provisions of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). In addition, there are two other matters which have assisted me in reaching the conclusions which I have, and they are matters which will not often be found on an application of this nature. The first is that, as to three of the six grounds of review, very similar points were raised in a case which I heard in March of this year (GG v Australian Crime Commission and Another SAD 176 of 2008). I had the benefit of full submissions on those points in that matter and judgment in the case will be delivered shortly. The second is that, as to two of the six grounds of review, a judge of this Court has considered the substance of those grounds of review and delivered a judgment: SS v Australian Crime Commission [2009] FCA 580 (" SS "). The five original grounds of review I turn now to consider the first five grounds of review advanced by the applicant. Ground 1 "The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that having regard to such reasons as the Third Respondent did record in writing, he could not reasonably have been satisfied (as he was required to be by s 28 (1A) of the Act) that it was reasonable to issue the summons." Section 28 of the ACC Act is in the following terms, relevantly: "28 Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made: (a) before the issue of the summons; or (b) at the same time as the issue of the summons; or (c) as soon as practicable after the issue of the summons. (2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation. (3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation. ... (7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation. (8) A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section: (a) subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b) subsection (2) of this section; (c) section 29A, in so far as that section relates to a summons under subsection (1) of this section." The respondents did not suggest that the decision by the examiner to issue the summons was not a decision capable of review in the exercise of the jurisdiction given to this Court by s 39B of the Judiciary Act 1903 (Cth), or on one of the grounds set out in s 5 or s 6 of the ADJR Act. The issues raised in the second ground were the same as issues considered by Jagot J in SS . I have decided the issues in the same way as her Honour (see [88]-[92]). I do not need to discuss the comity principle because I have reached the conclusions I have expressed independently of the decision of Jagot J in SS . Ground 3 "The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that the Statement annexed to the Summons (Annexure B) does not conform to, or comply with, s 29A (3) of the Australian Crime Commission Act 2000 [sic] (Cth) (the Act), as it must." Sections 29A and 29B of the ACC Act are in the following terms: " 29A Disclosure of summons or notice etc. may be prohibited (1) The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation. (2) A notation must not be included in the summons or notice except as follows: (a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (b) the examiner may include the notation if satisfied that failure to do so might prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest. (3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice. (4) If, after the ACC has concluded the operation or investigation concerned: (a) no evidence of an offence has been obtained as described in subsection 12(1); or (b) evidence of an offence or offences has been assembled and given as required by subsection 12(1) and the CEO has been advised that no person will be prosecuted; or (c) evidence of an offence or offences committed by only one person has been assembled and given as required by subsection 12(1) and criminal proceedings have begun against that person; or (d) evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by subsection 12(1) and: (i) criminal proceedings have begun against all those persons; or (ii) criminal proceedings have begun against one or more of those persons and the CEO has been advised that no other of those persons will be prosecuted; all the notations that were included under this section in any summonses or notices relating to the operation or investigation are cancelled by this subsection. (5) If a notation is cancelled by subsection (4), the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation. (7) If: (a) under this section, a notation in relation to the disclosure of information about: (i) a summons issued under section 28; or (ii) a notice issued under section 29; or (iii) any official matter connected with the summons or notice; has been made and not cancelled; and (b) apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988 ) would be required, under subsection 18K(5) of the Privacy Act 1988 , to make a note about the disclosure of the information; such a note must not be made until the notation is cancelled. (8) In this section: official matter has the same meaning as in section 29B. 29B Offences of disclosure (1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 29A must not disclose: (a) the existence of the summons or notice or any information about it; or (b) the existence of, or any information about, any official matter connected with the summons or notice. Penalty: 20 penalty units or imprisonment for one year. (2) Subsection (1) does not prevent the person from making a disclosure: (a) in accordance with the circumstances, if any, specified in the notation; or (b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or (c) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or (d) if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (e) if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under subsection 30(3) to the legal practitioner answering a question or producing a document at an examination before an examiner. (3) If a disclosure is made to a person as permitted by subsection (2) or (4), the following provisions apply: (a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4); (b) while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them. Penalty: 20 penalty units or imprisonment for one year. (4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information: (a) if the person is an officer or agent of a body corporate referred to in paragraph (2)(d): (i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or (iii) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or (b) if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or obtaining assistance under section 27 , relating to the summons, notice or matter; or (c) if the person is a legal aid officer—for the purpose of obtaining legal advice or representation relating to the summons, notice or matter. (5) This section ceases to apply to a summons or notice after: (a) the notation contained in the summons or notice is cancelled by subsection 29A(4); or (b) 5 years elapse after the issue of the summons or notice; whichever is sooner. (6) A reference in this section to disclosing something's existence includes disclosing information from which a person could reasonably be expected to infer its existence. (7) In this section: legal aid officer means: (a) a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes including the provision of legal assistance; or (b) a person to whom the Attorney-General has delegated his or her powers and functions under section 27. official matter means any of the following (whether past, present or contingent): (a) the determination referred to in subsection 28(2); (b) an ACC operation/investigation; (c) an examination held by an examiner; (d) court proceedings." In the case of the applicant, the summons contained the following note: "Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 , disclosure of information about this summons, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the summons, in which case the applicant's name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure." This issue was also an issue considered by Jagot J in SS . Again, I have reached my conclusions independently of her Honour's decision. However, with respect, her Honour's reasons neatly summarise why in this case the applicant's submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]): "Three matters are apparent from this scheme. First, the scheme distinguishes between a person 'served, or otherwise given' a summons or notice and a person to whom a person 'served, or otherwise given' a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words 'otherwise given' in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. Second, treating a person to whom disclosure has been made about a summons or notice as a person 'otherwise given' the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words 'or otherwise given' must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical. Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). These considerations indicate that the ACC's submission must be accepted." In my opinion, the third ground does not have sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant. Ground 4 "The decisions are invalid in that the information they were based on was unlawfully obtained, and not permitted by the Act to be relied on for the purpose of issuing a Summons pursuant to s 28 of the Act. The information relied on was obtained in the conduct of a special investigation purportedly authorized by an instrument of the First Respondent (Board) made on 25 July 2005 (the 2005 Determination), and authorizing that investigation until 30 June 2006. That date was successively extended on 7 June 2006, 14 June 2007, and 25 June 2008 by instruments of extension which were invalid for failure to comply with s 7E of the Act." The Board made an Authorisation and Determination entitled "Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005" on 27 July 2005. I will refer to this as the 2005 Authorisation and Determination. The 2005 Authorisation and Determination is signed by Mr M J Keelty, who was the Commissioner of the Australian Federal Police and Chair of the Board, and it authorised an investigation by the Commission until 30 June 2006.


case_title: The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150


case_title: Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280


case_text: respondents referred to Watt v Australian Crime Commission [2004] FCA 1669 (" Watt "). The applicant in that proceeding sought an interlocutory injunction restraining an examiner from requiring him to answer questions at an examination conducted under the ACC Act which he (the applicant) objected to answering upon the ground that to do so may tend to interfere with the administration of justice by reason of the applicant's involvement in confiscation proceedings in the Supreme Court of the Northern Territory. Mansfield J considered three questions. First, he considered whether, as a matter of law, an examinee may object to answering questions which may tend to incriminate him and which, by reason of him answering them, might have the additional quality of constituting a real or substantial risk of interference with the course of justice. Mansfield J considered that the proposition of law was arguable but not strongly arguable (at [27]). Secondly, Mansfield J considered whether, as a matter of fact, the compulsory interrogation of the applicant under the ACC Act involved a real or substantial risk of interference with the administration of justice in relation to the confiscation proceedings. His Honour found that there was no serious question to be tried in relation to that issue (at [21]). Thirdly, Mansfield J considered the balance of convenience. He decided that it favoured the refusal of an interlocutory injunction. Watt is clearly distinguishable from the circumstances of the applications before me. However, I note Mansfield J's reference to the public interest in the timely progression of examinations under the ACC Act. His Honour, after identifying the particular delay relevant in that case, said (at [25]): "That delay in the Examiner being able to complete the examination, and perhaps to progress it much or at all, in a matter which is of public importance is itself very significant. The nature of the ACC, its functions under the ACC Act, and the nature of the special investigation are sufficient reason to be satisfied of its importance, and of the timely gathering of information." (See also CC v Australian Crime Commission [2005] FCA 754 at [15] ).


case_text: is necessary to consider the balance of convenience in relation to the further ground of review. No doubt, the applicant's likelihood of success is relevant to the balance of convenience. However, two important points must not be overlooked. First, leaving aside cases which on their face are obviously strong or obviously weak, it would be dangerous, and probably futile, to attempt too precise an assessment of an applicant's prospects of success. Any assessment is inevitably made on imperfect material and argument. This leads to the second point. It is not appropriate, in effect, to try the proceeding in order to determine an applicant's prospects of success (see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623; World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 per Bowen CJ). It was for these reasons, and because I think the balance of convenience clearly favours the refusal of interlocutory relief, that I considered any further answer to the notices to produce was unnecessary in terms of resolving the present applications.


case_text: Under s 102(2)(b) of the FMA a Registrar has the power to make orders 'in relation to substituted service' . The use of the words 'in relation to' provide a much wider power to the Registrar than merely the making of an order for substituted service. In Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620, Taylor J referred to the expansive meaning incorporated in the words 'relating to' . His Honour said: There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. See also Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68] ; Joye v Beach Petroleum NL and Another (1996) 67 FCR 275.


case_text: Section 11 of the FMA has its equivalent in s 20 of the Federal Court of Australia Act 1976 (Cth). In Bird v Free and Others (1994) 126 ALR 475 at 479 Drummond J said of s 20 of the latter Act: The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group.


case_text: In making the orders for substituted service upon the applicant, Registrar Segal was exercising the power of the court provided by ss 103 and 102(2)(b) of the FMA. A Registrar of the Federal Magistrates Court has power to make orders pursuant to the FMC Bankruptcy Rules: see Cheesman and Others v Waters and Another (1997) 148 ALR 21. 39 Although the applicant claimed that no direction had been issued authorising a Registrar to exercise the power of the court as prescribed by reg 20.00A(2) of the FMC Rules, a delegation for such purpose has been made pursuant to the Federates Magistrates (Delegations to Registrars) Approval 2006 ('the Delegations') on 23 May 2006. Pursuant to the Delegations each Registrar referred to in Sch 1 thereof is approved to exercise powers under s 102(2)(a) to (i) of the FMA including the powers mentioned in Sch 2 of the FMC Bankruptcy Rules, as prescribed by r 2.02 of those Rules. Registrar Segal is nominated in Sch 1. 40 Pursuant to the Federal Magistrates Court (Bankruptcy) Direction 2006 ('the Bankruptcy Direction') it was directed that the powers referred to in Sch 2 of the FMC Bankruptcy Rules may be exercised by a Registrar. The Delegations thus complete the authority provided to Registrars by Sch 2 of the FMC Bankruptcy Rules.


case_outcome: applied

case_text: In Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84 the High Court held that a court created under s 71 of the Constitution may, if so authorised, delegate the exercise of its judicial functions to an officer of the court provided that the exercise of that power is subject to review. Such review must be by way of a hearing de novo by a Justice or Judge of the court in accordance with s 72 of the Constitution (see Mason CJ and Deane J at 95). 20 Pursuant to s 99 of the FMA Registrars of the Federal Magistrates Court may be appointed as officers of the Federal Magistrates Court. Subsection 104(2) of the FMA provides that a party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court pursuant to subs 102(2) or subs 103(1) of the FMA may apply to the Federal Magistrates Court for review of that exercise of power. Such provisions thereby satisfy the requirements of the delegational functions referred to in Harris v Caladine .


case_title: Joye v Beach Petroleum NL and Another (1996) 67 FCR 275


case_outcome: distinguished

case_text: The applicant submits that s 8 of the FMA requires that the Federal Magistrates Court consist of a Chief Federal Magistrate and Federal Magistrates, but does not include Registrars. The applicant relies upon Kotsis v Kotsis [1970] HCA 61 ; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21 ; (1971) 122 CLR 114 in support of its submissions that the Registrar of the Federal Magistrates Court cannot exercise the powers of that court. 17 In Kotsis v Kotsis the High Court determined that a Deputy Registrar of a State Supreme court had no power to make an order for costs. Windeyer J observed at 91-92: 'Nevertheless I think that when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer' . The same principle was applied in Knight v Knight . 18 Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.


case_text: The applicant also submits that the decision of the High Court of Australia ('the High Court') in Re Bryant: Ex parte Guarino [2001] HCA 5 ; (2001) 75 ALJR 478 , which upheld the constitutional validity of the appointment of Federal Magistrates, was made 'without the assistance of counsel, and under the pressure of a hearing the next day' . The applicant submits that the issue under consideration in that case, namely whether the appointment of Federal Magistrates by Parliament is constitutional, is one of public importance and should be reconsidered by either the Full Court or the High Court. 9 The Federal Magistrates Court is a court created pursuant to the power contained in s 71 of the Constitution , and s 77 of the Constitution permits Parliament to make laws defining the jurisdiction of any federal court it has created. The Federal Magistrates Court exercises the judicial power of the Commonwealth invested under Ch III of the Constitution . Section 10 of the FMA invests the Federal Magistrates Court with such original jurisdiction as is vested in it by laws made by Parliament either by express provision or by application of s 15C of the Acts Interpretation Act 1901 (Cth). The Federal Magistrates Court is a court of record and is a court of the law and equity (see subs 8(3) of the FMA). 10 The Federal Magistrates Court is to be constituted, for the purpose of the exercise of its jurisdiction, by a single Federal Magistrate as provided by s 11. Section 79 of the Constitution refers to judges as being those who are entitled to exercise federal jurisdiction. However, as held in Re Bryant: Ex parte Guarino by Hayne J the title of the judicial officer of 'magistrate' as referred to in s 8 of the FMA is of no consequence. His Honour said at [8]: Nevertheless, it is clear when regard is had to s 71 and the power given to the Parliament to create "other Federal courts" that the title given to the judicial officer... is not determinative of the constitutional reach of s 79 and the other provisions in Ch III. The constitutional reach of s 79 extends to the Federal Magistrates appointed to serve in the court created by the Parliament by the Act. 11 Re Bryant: Ex parte Guarino determined that the Commonwealth possesses power to appoint Federal Magistrates. Such decision is binding on this Court. The absence of counsel before Hayne J in Re Bryant: Ex parte Guarino and any urgency involved in the hearing of that matter are not relevant issues for this Court in deciding whether to reconsider that decision. Settled precedent would become fragile indeed if circumstances extraneous to the issues decided could cast doubt upon their authority. 14 The name 'the Federal Magistrates Service' is merely a name by which the Federal Magistrates Court may be known. The fact that subs 8(2) of the FMA provides for an alternative name for that court is irrelevant to its statutory creation. The creation of the court and of its constitutional validity has already been determined in Re Bryant: Ex parte Guarino . 15 It follows that the applicant's submissions concerning the constitutional validity of the appointment of Federal Magistrates and of the Federal Magistrates Court are rejected.


case_outcome: considered

case_text: Quite apart from its statutory origins, the Federal Magistrates Court has power to punish for contempt (see s 17 of the FMA). It was recognised in the United Kingdom that a court of assize or of nisi prius which had certain powers, including powers to punish for contempt, were regarded as superior courts although not principal superior courts: see Re Fernandes [1861] EngR 489 ; (1861) 6 H & N 717; 158 ER 296 at 300-301. However, for the above reasons such historical indicia of a court have no application to the Federal Magistrates Court. 24 For the above reasons, the submissions of the applicant that the Registrars of the Federal Magistrates Court cannot exercise administrative functions are rejected. 25 The applicant submits that the text of the Oath of Office administered to a Registrar differs from that taken by a Federal Magistrate, and that such difference demonstrates a limitation on the Registrar's powers to issue orders in the name of the Federal Magistrates Court.


case_text: The above principle, as it applied to the Federal Court of Australia was approved by the High Court in Re Jarman and Others; Ex parte Cook [1997] HCA 13 ; (1997) 188 CLR 595 per Toohey and Gaudron JJ at 616-617. Since the Federal Magistrates Court is court created under Ch III of the Constitution , the same principle applies. It follows that the exercise of power by a Federal Magistrate is a valid exercise of the power of the Federal Magistrates Court.


case_text: Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.


case_text: The applicant further submits that a Registrar of the Federal Magistrates Court is to be equated with a clerk of an inferior court. The applicant relies upon The Queen v Douglas and Others [1898] 1 QB 560, which held that the office of a clerk of such court was incompatible with a justice of the peace, and The Mayor and Aldermen of the City of London v Richard Henry Cox and Others (1867) LR 2 HL 239, which held that the Lord Mayor's Court in London is an inferior court.


case_title: The Queen v Douglas and Others [1898] 1 QB 560


case_title: Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620


case_text: In order to deal with these submissions I must consider the meaning of the term "the owner" in s 17 of the Admiralty Act . The meaning of the term "owner" was considered, for the purposes of s 19 , by the Full Court in Kent v SS Maria Luisa (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 and, for the purposes of s 17 , in Tisand v MV Cape Moreton [2005] FCAFC 68 ; (2005) 143 FCR 43. Concerning that question, the majority (Tamberlin and Hely JJ) said in the Maria Luisa at [61]-[66]: 61 The word "owner" cannot be given any general description. But ordinarily the incidents of ownership of a chattel include the right to make physical use of the chattel, the right to the income from it, the power of management, and the right of alienation: ... . In the "Iron Shortland" ... Sheppard J quoted from the decision of the Singapore Court of Appeal ... that the term "owner" means any person who is vested with such ownership as to have the right to sell, dispose of or alienate the ship, and that a beneficial owner of the ship comes within that term ... . 62 The notion of "ownership" carries a connotation of dominance, ultimate control and of ultimate title against the whole world ... . ... 65 A helpful description of "ownership" is formulated by Jordan CJ in Gatwood v Alley ... where his Honour said in relation to a question as to ownership of a car: "A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner ... ." 66 Ownership, whether legal or equitable, therefore involves something greater than beneficial interest. Equitable ownership of property is commensurate with the right to relief in a Court of Equity ... . If a person has contractual rights in relation to a ship which, if performed will result in the person becoming the owner of the ship, then the person will be regarded as the equitable owner of the ship provided that specific performance of the contract would be decreed ... . 39 Their Honours then referred to the decision in the Maria Luisa and, at [97], continued: The Full Court decided The Maria Luisa in the context of the earlier decision of Sheppard J in The Iron Shortland that the word "owner" was not restricted to registered owner, but extended to include the "true" or "real" or "beneficial" owner. It was not necessary for the Full Court to decide the question before us, that is whether the phrase "the owner" necessarily included the registered owner. 40 After referring to various authorities their Honours observed at [119]-[120]: 119 As is clear ... notions of "property" and "ownership" are not amenable to crisp, comprehensive definition in the abstract. The context, here is the possession and enjoyment of, dominion over and power or right to dispose of, a chattel of a kind that is usually engaged in commercial enterprise. In that context, the word "ownership" or "owner" connotes the right or power to have and dispose of dominion, possession and enjoyment of the ship, subject of course to intervening interests ... . 120 This kind of dominion, exemplified or epitomised by the lawful power or right to dispose of the ship, may arise from the legal effect of dealing between the parties with a ship, under general law or statute. 41 The Court considered the legal consequences of registration, discussing the purposes thereof which include the protection of the title of the registered owner and the protection and preservation of priorities between security interests in the ship. The Court then turned to the question of choice of law. At [140] the Court concluded that the proper law, for the purpose of determining questions of jurisdiction, was the law of the forum (Australia), including its rules of private international law. Their Honours considered that in connection with questions concerning transfer of title to a chattel, those rules would normally lead to application of the lex situs of the chattel. However the Court identified difficulties in determining the situs of a merchant ship. At [146]-[147], their Honours said: 146 There seem to us to be powerful reasons for giving effect to the law of the country of register as the lex situs in relation to questions of title, property and assignment (subject, of course, to local statute and public policy). The chance location of a working merchant ship in a port within its range of sailing or on the high seas appears to introduce an element of arbitrariness to the legal analysis. This is especially so if, as is likely, the national register and registration laws of the port in question are directed to ships of that country. If a law of a country other than the country of registration is chosen to deal with the assignment of property in a ship, it is likely that there will be no statute dealing with registration that is made relevant. 147 The relevant choices appear to be the law of the forum, the law of the country of registry as the lex situs (and not merely when the ship is on the high seas), the law of the place of the ship within another country's territorial waters, (and on one reading of [certain decisions]) the law of the domicile of the registered owner or operator. 42 In any event, in the absence of any evidence as to foreign law, their Honours concluded that the question of choice of law was "academic". The Court acted upon the presumption that the relevant foreign law was the same as the law of the forum, Australia. Without necessarily conceding the correctness of the approach their Honours accepted that the lex situs (ie the law of the registration state) should be presumed to contain a statute in a form, mutatis mutandis, the same as the Shipping Registration Act 1981 (Cth). Section 45 of that Act provided: The owner of the ship or of a share in a ship has power, subject to this Act and to any rights and powers appearing in the Register to be vested in any other person, absolutely to dispose of the ship or share and to give effectual receipts in respect of the disposal. 43 At [161] the Honours continued: A power of that kind may well, in many circumstances, suffice to support the conclusion that the holder of such power was "the owner". It is a power which is the equivalent of the epitome of ownership. A party who has power absolutely to dispose of a chattel has the equivalent of the ultimate incident of ownership. The power derives from statute; it is not a "right" arising from a consensual transaction; but it is a power having equivalent effect. 44 At [163] their Honours observed: It is necessary, however, to assess the importance of this power ... by reference to the surrounding factual circumstances. 45 Relevantly, the registered owner had, in fact, sold the ship and received the sale price. The Court continued at [165]-[168]: 165 Under Australian law, and we would venture to suggest, the law of any other country, subject to any statute affecting the position, [the buyer] took full property in the ship. 166 On the assumption that the [Shipping Registration Act] applies, [the owner] had a power, given by statute, absolutely to dispose of the ship. In the circumstances that obtained, however, [the owner] could not, on any view, exercise that power lawfully or honestly without the consent of [the buyer]. It had transferred the ship, relinquished its rights in her and been paid in full for her. No circumstance could be shown for the honest or lawful exercise of the statutory power, without the consent of [the buyer]. 167 In these circumstances, the holding of the statutory power of absolute disposition was empty of real and practical meaning or significance. So to conclude is not to change the content of the power, but to direct attention to the relevant question to be answered. Was a party who had entered and completed this transaction and who held a statutory power (the primary purpose of which was the protection of the next registered owner, conformably with honest dealing, who had taken the property according to the transaction just completed) in circumstances where there could be no occasion for the honest and lawful use of a power, "the owner" of the ship? 168 In our view, the answer to that question is "no". [The owner] had no rights of dominion, enjoyment or control over the ship arising from its dealing with [the buyer] or from its relationship with the ship. It had, by the law of the flag (on the hypothesis of the relevance of the [Shipping Registration Act] by the presumption) a power to dispose of the ship, but that power was incapable of lawful or honest exercise, without the consent of [the buyer]. So understood, the power does not amount to a right of ownership. 46 The plaintiff submits that I should accept registration of the Ship in Qatar as proof of ownership. Exhibited to the affidavit of Mr Hockaday, filed on 17 September 2008, are Resolution No 18 of 1980G and Law No 19 of 1980G, both apparently promulgated by the Amir. The first concerns registration of ships and safety conditions in Qatar. The second concerns registration and safety pertaining to small ships in that country. I understand it to be accepted that these documents contain the relevant aspects of the Law of Qatar concerning the registration of ships. Resolution No 18 provides that a ship, the total tonnage of which is 200 ton or more, may not sail under the flag of Qatar unless it is registered according to that Resolution. Vessels under 200 ton may be registered under Resolution No 18, but such registration is not mandatory. Law No 19 provides for an alternative system of registration for vessels under 200 ton. It is not immediately clear whether the Ship was registered under Resolution No 18 or Law No 19. However the application for registration indicates that its "GRT" (presumably gross registered tonnage) is 200 ton, whilst its net registered tonnage is 60 ton. It is not clear whether it is the gross or net tonnage which applies for the purposes of Regulation No 18. Nor is it clear whether the various references to tonnage in the evidence, in Resolution No 18 and in Law No 19 are to metric tonnes or imperial tons. Law No 19 establishes a register called "The Small Ships Register". There is no indication on the certificate of registration, or on the application for registration, that the Ship was, or was to be, on any such register. It seems more probable than not that it was registered under Resolution No 18. Article 7 of that resolution provides for registration of ownership details. Article 8 requires that the ship owner, supplier or captain notify the registration office of any amendment made to the registered details. Article 13 provides: Every legal act or incident or a judgment resulting in transferring, or amending or forfeiting an in-kind right on a registered ship shall not be in force between the concerned people or for the third party unless its registration is made in the ships register. The concerned parties have right to apply for registration. If any one of them refrains, the matter may be presented to the court for ordering it. 47 Article 14 provides: The registration order shall be as per the date of entry in the journal. If many applications are presented related to one ship in one day, the priority among them shall be as per the time of depositing the registration application, and if many applications are presented together in one hour, all of them shall be deemed in one order. 49 The plaintiff also submits that the Amir's entitlements under the agreement, coupled with the substantial part-payments, were sufficient to create an equitable interest equivalent to ownership for the purposes of s 17. However such equitable and/or contractual rights were obviously subject to the limitation imposed by cl 16 of the agreement. It cannot be said that at the relevant time, the Amir had either the right to possession of the Ship or the right to dispose of it, other than subject to the rights of Sovereign. It was not simply a question of paying the outstanding balance of the purchase price. Mr Royet's evidence demonstrates that prior to 21 July 2008, the Ship had not been completed to the satisfaction of the Amir or his agent. Until such time as the Amir elected to accept the vessel in substantial satisfaction of Sovereign's obligations under the agreement, he could not have insisted upon physical delivery. This is relevant to the point made by Tamberlin and Hely JJ in the Maria Luisa at [74]. Prior to 21 July 2008 the Amir had not exercised his right to accept the vessel pursuant to the contract. He was in a position which might well have led to ownership but did not satisfy the requirements of, in this case, s 17. 50 Finally, the plaintiff submits that the agreement was amended so that property passed at some earlier time and prior to 9 or 11 June 2008. The evidence of this amendment is said to be Sovereign's provision of the builder's certificate, the apparent delay in completion and Amiri Yachts' entitlement under the agreement to take possession of the Ship in the event of default by Sovereign (cl 13) and to insure (cl 15). Against this is Mr Lloyd's assertion that prior to 21 July 2008 Sovereign remained in possession and full control of the Ship. It is true that in para 7 of his affidavit, he did not refer to title. He had done so in cl 6, but the relevant passage was objected to and excluded, largely because it went to the proper construction of the agreement. The evidence of both Mr Lloyd and Mr Royet suggests that the parties were, until 21 July 2008, conducting themselves upon the basis that the Ship was still under Sovereign's legal and physical control. In those circumstances, I decline to infer that there had been any variation to the provisions of the agreement concerning the passing of property.


case_text: In order to deal with these submissions I must consider the meaning of the term "the owner" in s 17 of the Admiralty Act . The meaning of the term "owner" was considered, for the purposes of s 19 , by the Full Court in Kent v SS Maria Luisa (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 and, for the purposes of s 17 , in Tisand v MV Cape Moreton [2005] FCAFC 68 ; (2005) 143 FCR 43. Concerning that question, the majority (Tamberlin and Hely JJ) said in the Maria Luisa at [61]-[66]: 61 The word "owner" cannot be given any general description. But ordinarily the incidents of ownership of a chattel include the right to make physical use of the chattel, the right to the income from it, the power of management, and the right of alienation: ... . In the "Iron Shortland" ... Sheppard J quoted from the decision of the Singapore Court of Appeal ... that the term "owner" means any person who is vested with such ownership as to have the right to sell, dispose of or alienate the ship, and that a beneficial owner of the ship comes within that term ... . 62 The notion of "ownership" carries a connotation of dominance, ultimate control and of ultimate title against the whole world ... . ... 65 A helpful description of "ownership" is formulated by Jordan CJ in Gatwood v Alley ... where his Honour said in relation to a question as to ownership of a car: "A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner ... ." 66 Ownership, whether legal or equitable, therefore involves something greater than beneficial interest. Equitable ownership of property is commensurate with the right to relief in a Court of Equity ... . If a person has contractual rights in relation to a ship which, if performed will result in the person becoming the owner of the ship, then the person will be regarded as the equitable owner of the ship provided that specific performance of the contract would be decreed ... . 38 The decision in the Cape Moreton was more complex, concerning questions of private international law. The Court comprised Ryan and Allsop JJ, the third member, Cooper J, having fallen ill and died following oral argument and prior to decision. A number of propositions emerge from the reasons. At [92] their Honours observed: In our view, the meaning of the phrase "the owner" in ss 17, 18 and 19 of the Act does not necessarily encompass the party entered on any international register of ships. The question is one as to whether the relevant person answers the description of "the owner" in the proprietary sense, in all the circumstances. ... 48 If ownership is to be determined by reference to the law of Qatar, it would seem that Sovereign could not enforce any right to the Ship against the Amir in the absence of registration of such right. There would still be a question as to whether surrounding circumstances (which significantly affected the outcome in the Cape Moreton ) should lead me to conclude that the Amir was not the owner for the purposes of s 17(a) of the Admiralty Act , notwithstanding the operation of Qatari law. However it seems curious that Sovereign should have been deprived of title to the Ship by the unilateral act of the Amir in applying for registration in Qatar, although it may be, as the plaintiff suggests, that Sovereign was a party to the registration. Nonetheless, I am inclined to think that the decision in the Cape Moreton may not necessarily lead to the conclusion that the law of Qatar should be applied in determining ownership for present purposes. This case differs from the Cape Moreton in that the very fact of registration is said to have effected a change of ownership. It seems likely that, according to Australian private international law, the relevant law concerning transfer of title would have been that of New Zealand where the Ship, then unregistered, was located. It may follow that for present purposes, title could only pass in accordance with the law of New Zealand (or, perhaps, the law of England, the law applicable to the contract). Either law would presumably have given effect to the provisions in the agreement relating to the passing of property. If so, registration in Qatar would not have affected ownership of the Ship. The Ship Registration Act 1992 (NZ) may also have been relevant to the question. 51 Although counsel addressed the question of compliance with s 17 in some detail and demonstrated considerable industry in so doing, I am concerned that the question of the passing of title has not been fully ventilated, particularly in so far as concerns the choice of law question. To the extent that the plaintiff relied upon the Cape Moreton as establishing the relevance of Qatar law, it did not address the fact that in that case the vessel was, at all material times, registered in Liberia. In the present case the question is whether the act of registration in Qatar, itself, effected a change in ownership of the Ship in New Zealand. In those circumstances I am reluctant to decide that question. I am inclined to the view that the law of New Zealand (as the lex situs immediately before registration) should be applied to determine whether or not property passed to the Amir as the result of registration. I suspect that the probable answer is that according to New Zealand law, it did not, but that question has not been argued. In any event, as I have formed a view that the Amir is relevantly entitled to head of state immunity, it is not necessary that I finally dispose of that question. 52 The extent to which a foreign head of state enjoys immunity from judicial process in this country is determined by reference to the Foreign States Immunities Act 1985 (Cth) (the "States Immunities Act") and the Diplomatic Privileges and Immunities Act 1967 (Cth) (the "Diplomatic Immunities Act"). The Explanatory Memorandum which accompanied the Foreign States Immunities Bill 1985 (Cth) into the House of Representatives indicated that the proposed legislation was based upon a report by the Law Reform Commission, "ALRC 24, Foreign State Immunity (1984)" ("ALRC 24"). Paragraph 163 of that report stated that the proposed treatment of head of state immunity was based upon the approach taken in the State Immunity Act 1978 (UK) (the "UK Immunity Act"). As much also appears from the Second Reading Speech of the then Attorney-General which is reported in the Parliamentary Debates (House of Representatives) for 21 August 1985 at pp 141-143. Concerning head of state immunity, the Attorney-General said (at 143): An additional matter covered is the immunity of a head of state acting in a private capacity. The position at common law is unclear. The legislation provides that a foreign head of state acting in a private capacity has the same immunities as a head of a diplomatic mission similarly acting. These immunities extend to the spouse of the head of state. This is the approach of the United Kingdom legislation and has the advantage of bringing a rarely litigated issue under a well-developed body of law which has been specifically developed to satisfy the needs of both the sending state and the receiving state. 53 In ALRC 24, the Law Reform Commission addressed the question of foreign state immunity in considerable detail. However the immunity of heads of state was addressed quite shortly. Paragraph 70 dealt with that question in connection with acts performed in a public capacity, asserting that a head of state was, according to existing law and practice, entitled to the same immunity as that extended to foreign states. As to acts performed in a private capacity, it was suggested (at para 163) that the current position concerning that matter was unclear. That statement was presumably the source of the Attorney-General's comment to similar effect which is mentioned above. ALRC 24 continued: Of all the overseas models on foreign state immunity only the State Immunity Act 1978 (UK) deals with the point. It does so by applying the provisions of the Diplomatic Privileges Act 1964 (UK) with respect to a head of mission, his family and servants, to a sovereign or other head of state, members of his family forming part of his household, and his private servant. The 1964 Act, like the similar Australian legislation, largely incorporates into municipal law the terms of the Vienna Convention on Diplomatic Relations 1961.


case_text: Since ALRC 24 the House of Lords has considered the UK Immunity Act in connection with the well-publicized extradition proceedings against the former President of Chile, Augusto Pinochet Ugarte, reported as R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. The case was not directly concerned with the immunity of a serving head of state, but with that of a former head of state. However the broader question was also addressed. At 201-202 Lord Browne-Wilkinson said: It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in a forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae. What then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). After providing for immunity from arrest (article 29) and from criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador's privileges shall be enjoyed from the moment he takes up post; and paragraph (2) provides: "When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist." The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. Accordingly under article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private. In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state ... . Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office. (Original emphasis.) 57 His Lordship then went on to deal with what he described as a "strange feature" of the United Kingdom legislation which is also found in the Australian legislation. I will return to that matter at a later stage. Lord Goff of Chieveley dealt with head of state immunity at 209-210. His Lordship dealt firstly with the "strange feature" to which Lord Browne-Wilkinson had referred and continued at 210: ... (T)here seems to be no reason why the immunity of a head of a state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set ... . The effect is that a head of state will, under the statute as at international law, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae "in respect of acts performed (by him) in the exercise of his functions (as head of state)," the critical question being "whether the conduct was engaged in under colour of or in ostensible exercise of the head of state's public authority ... ." In this context, the contrast is drawn between governmental acts, which are functions of the head of state, and private acts, which are not. There can be no doubt that the immunity of a head of state, whether ratione personae or ratione materiae, applies to both civil and criminal proceedings. This is because the immunity applies to any form of legal process. 58 See also the observations of Lord Hope of Craighead at 240-241, Lord Hutton at 249-251, Lord Saville of Newdigate (concerning criminal jurisdiction only) at 265, Lord Millett at 268-269 and Lord Phillips of Worth Matravers at 280. It seems that both at common law and pursuant to the UK Immunity Act, heads of state enjoy general immunity in connection with acts performed in a public or private capacity. 68 The "strange feature" referred to by Lord Browne-Wilkinson and Lord Goff in Pinochet was the apparent general application of article 39 to a head of state in his or her private capacity. No doubt their Lordships' difficulties were caused by considerations such as those to which I have already referred. They pointed out that the original intention underlying the UK Immunity Act was that a foreign head of state, in his or her private capacity, enjoys immunity under that Act whilst he or she was in the United Kingdom. What, then, was to be the position of a head of state whilst he or she was not in the United Kingdom? I infer that the rules recognized at common law were to apply. I base this inference upon the reference in Lord Browne-Wilkinson's speech at 203 to the concern expressed in Parliament that the bill in its original form left "an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom". The problem was resolved by extending the operation of article 39, presumably because it was always the intention that such heads of state have immunity. 69 I conclude that the Amir enjoys immunity from civil suit in this country, subject to the qualifications and exceptions which appear from the States Immunities Act, the Diplomatic Immunities Act and the Vienna Convention, none of which exceptions presently applies. The Amir is also immune from execution. 70 I will hear submissions as to appropriate orders and costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 December 2008 Counsel for the Plaintiff: Mr A Duffy Solicitor for the Plaintiff: Thynne & Macartney Counsel for the Defendant: Mr A Crowe SC and Mr G Coveney Solicitor for the Defendant: Blake Dawson Date of Hearing: 18 September 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1842.html


case_text: There is a clear line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b) whatever may have been the position at common law: Natuna Pty Limited v Cook [2006] NSWSC 1367 ; New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258 ; and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859.


case_title: New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258


case_text: There is a clear line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b) whatever may have been the position at common law: Natuna Pty Limited v Cook [2006] NSWSC 1367 ; New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258 ; and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859. 8 The same question has been dealt with by Brereton J in ML Ubase at [45]-[46] where his Honour says: [45] In my view, what Enderby J said in Crawford v Bailey [(unreported, NSWSC, Enderby J, 26 October 1990)] is no longer the law, if it ever was. What his Honour said is inconsistent with Dingwall [ v the Commonwealth [1992] FCA 627 ; (1992) 39 FCR 521] and with Tirango [ Nominees Pty Ltd v Dairy Vale Foods Ltd (1998) 156 ALR 364]. Moreover, it is not the test enunciated by Evidence Act [ 1995 (NSW)] s 126. In my opinion, service and tender of an expert witness' report in proceedings does not constitute a waiver of the privilege which attaches to communications between the expert and the solicitors who instructed him or her, save to the extent that those communications are associated documents reasonably necessary to an understanding of the report. "Proper understanding" of a document or communication will sometimes, but not always require that documents to which it responds or refers be available. It may very likely be so when the primary document contains a summary or excerpt from an earlier communication, or responds to questions which are not themselves restated in it. But I do not accept that "a proper understanding of the communication or document" involves an appreciation of the manner in which the opinions contained in the document have been formed over time, or the iterations and evolutions through which they have passed. The test is concerned with the comprehensibility of the primary communication or document: if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary. [46] Accordingly, for the purposes of s 126 , one starts by looking at the substantive document (made admissible under s 122 or another of the applicable sections) and asking whether, in order to understand it thoroughly, it is necessary to know what is in the associated material. 9 In the present case senior counsel for Darrell Lea has not been able to point to any particular part of Dr Stavros' report of which it can be said that some further document is required to enable the report to be understood. Still less has it been possible to identify any such document. 10 Reference was made to the role played by the firm QBrand Consulting, which was referred to in paragraph 19 of Dr Stavros' first affidavit. He deposes there that in preparing this affidavit he has been assisted by staff members of QBrand Consulting, ... with which firm I have a support arrangement in relation to this type of work. This assistance took the form of administrative tasks, assisting with drafting, preparation of exhibits and obtaining copies of relevant research materials. All opinions expressed in this affidavit are my own. That does not to my mind indicate any uncertainty or ambiguity or confusion in the body of Dr Stavros' affidavit. In any event, the fact that QBrand Consulting is a third party, neither the expert nor the client, does not exclude the situation from the reach of s 119(b). 11 As a result, I uphold the claim of privilege. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 11 March 2008 Counsel for the Applicant: N Hutley SC, M Wyles & S Rebikoff Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: C Golvan SC & S Ricketson Solicitor for the Respondent: Middletons Date of Hearing: 11 March 2008 Date of Judgment: 11 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/323.html


case_text: for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith. An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 ; (2007) 69 NSWLR 198. However, there is a preponderance of authority against the implication of such a term: Aldersea v Public Transport Corporation (2001) 3 VR 499 ; Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678 ; McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903. Was there a breach of the implied terms?


case_text: for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit & Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.


case_title: Gogay v Hertfordshire County Council [2000] IRLR 783


case_title: Malik v Bank of Credit & Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20


case_title: McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903


case_title: Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82


case_title: Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939


case_title: Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678


case_text: On 4 August 2008, the respondent's solicitors sent a letter to the solicitors for the applicant in these terms: We refer to the abovementioned matter listed to be heard before His Honour Justice Greenwood on Friday 8 August 2008, Saturday 9 August and Sunday 10 August 2008. We are instructed our clients are prepared to settle the Proceeding on the following basis ("Offer"). 1. The Proceeding be dismissed. 2. There be no order as to costs, alternatively an order that each party bear their own costs. This offer will remain open until 5.00pm on Wednesday 6th August 2008 after which time it will lapse and will not be available for acceptance by your client. In the event that this Offer is not accepted by your client and orders are made at hearing which are not more favourable then the terms of this Offer, our client will rely on this letter and produce it to the Court as and when appropriate in support of an application for indemnity, solicitor/client or party/party costs on the basis of the principles set out in Calderbank v Calderbank [1975] 3 ALL ER 333 , Cutts v Head [1984] 1 C8 290, Mutual Community Limited v Lorden Holding Pty Ltd & Ors (unreported, Supreme Court of Victoria, per Byrne J, 28 April 1993) and M T Associates Pty Ltd v Aquamax Pty Ltd & Anor (3) [2000] VSC 163 , 3 May 2000. We look forward to receiving your reply ... 5 The letter was put to the applicant expressly as a Calderbank letter. It would have been plain to the applicant that the respondents were seeking to mitigate the unrecoverable costs to which they would ultimately be exposed in resisting the applicant's claim to relief by attempting to lay the foundation for a more favourable costs order should the applicant be unable to establish a right to that relief. 6 The applicant however elected not to respond to the letter. The controversy proceeded to a hearing. 7 The respondents say that the ultimate orders were more favourable than the terms of the offer. The action was dismissed with an order that the applicant pay the respondents' costs of and incidental to the action. Under the offer, the applicant could have chosen to withdraw and discontinue with no costs order against it. The applicant chose to press for the relief and the price it must pay as a matter of the proper exercise of the discretion as to costs is an order that it pay the respondents' costs of the proceeding. Thus, the ultimate orders were more favourable than the offer. 9 That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.


case_title: Cutts v Head [1984] 2 WLR 349

case_text: On 4 August 2008, the respondent's solicitors sent a letter to the solicitors for the applicant in these terms: We refer to the abovementioned matter listed to be heard before His Honour Justice Greenwood on Friday 8 August 2008, Saturday 9 August and Sunday 10 August 2008. We are instructed our clients are prepared to settle the Proceeding on the following basis ("Offer"). 1. The Proceeding be dismissed. 2. There be no order as to costs, alternatively an order that each party bear their own costs. This offer will remain open until 5.00pm on Wednesday 6th August 2008 after which time it will lapse and will not be available for acceptance by your client. In the event that this Offer is not accepted by your client and orders are made at hearing which are not more favourable then the terms of this Offer, our client will rely on this letter and produce it to the Court as and when appropriate in support of an application for indemnity, solicitor/client or party/party costs on the basis of the principles set out in Calderbank v Calderbank [1975] 3 ALL ER 333 , Cutts v Head [1984] 1 C8 290, Mutual Community Limited v Lorden Holding Pty Ltd & Ors (unreported, Supreme Court of Victoria, per Byrne J, 28 April 1993) and M T Associates Pty Ltd v Aquamax Pty Ltd & Anor (3) [2000] VSC 163 , 3 May 2000. We look forward to receiving your reply ... 9 That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.


case_title: Aljade and MKIC v OCBC [2004] VSC 351

case_text: That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.


case_title: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323


case_title: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273


case_title: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72


case_text: The defendants resist the plaintiff's claim for indemnity costs. They contend, correctly, that the usual course is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from that normal course; see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233, per Sheppard J and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844 at [3] and [17], per Gray J. 5 The categories of cases in which indemnity costs may be granted are not closed. The overriding consideration is the justice of the particular case. This includes the recognition that there are circumstances which justify the order of indemnity costs, including when a party unreasonably causes another party to incur costs; see Colgate-Palmolive at 233 and Leahy Petroleum at [17].


case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844


case_text: After the conclusion of the evidence, the defendants persisted "in what should on proper consideration be seen to be a hopeless case": see J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, West Australia Branch (No 2) (1993) 46 IR 301 at 303 per French J. This is particularly so when they had about two weeks to reflect on their position before coming to Court on the final day of the hearing to present their submissions. In those circumstances, I consider that the plaintiff should have her costs with respect to the hearing on 28 November 2007 paid on an indemnity basis. Indeed, ultimately, counsel for the defendants did not oppose that course. There is no reason to depart from the usual order that costs follow the event in respect of the balance of the proceedings. 9 The remaining issue requiring resolution is which of the defendants should pay the plaintiff's costs. The plaintiff contends that it should be the first and second defendants. The defendants submit that it should be the first defendant only. I agree with the later submission. The first defendant was the key decision maker for the defendants. The second defendant is an elderly lady and her actions as a director of the third and fourth defendants were influenced by the first defendant. The evidence bears out that he decided, without reference to the second defendant, to deny the plaintiff her correct entitlement to shares in the third and fourth defendants. 10 As each party has had some degree of success in the matters requiring resolution today, no order will be made concerning the costs of today's hearing.


case_text: In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1995) 187 CLR 384 , Brennan CJ, Dawson, Toohey and Gummow JJ, with whom Gaudron J agreed on this point, said at 408: 'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' 32 In HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 Hill J, with whom Stone J and Allsop J agreed, said at [44]: 'It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.'


case_text: Effective 1 July 2002, Australia introduced a consolidation regime to allow a wholly owned group of resident entities to consolidate their tax position rather than be treated as separate entities. The consolidation regime is principally contained in Pt 3 - 90 of the ITAA 97, comprising Divs 700 to 721. The only judicial consideration of these provisions of which I am aware is the very recent decision of Mansfield J in Envestra Limited (ACN 078 551 685) v Commissioner of Taxation [2008] FCA 249 (unreported) on 7 March 2008 that concerned a discrete aspect of the tax cost setting rules and has no connection with the issues in the present case. By the time of the introduction of the consolidation regime, the measures quarantining the franking surpluses of a corporate tax entity on it ceasing to be an exempting entity and becoming a former exempting entity were embodied in Div 208 of Pt 3 - 6 of the ITAA 97. Subdivision 709-B of Pt 3 - 90 of the ITAA 97 modifies the operation of Div 208 in relation to consolidated groups in a number of different ways, depending on the status of the head company and its subsidiary member at the joining time. 4 This case involves a consideration of the provisions of Div 208 of Pt 3 - 6 as modified by the provisions of Subdiv 709-B of Pt 3 - 90 of the ITAA 97. Although this interaction has been the subject of academic and other writings, for example, see Stephen Barkoczy, "Consolidation and Imputation" (2003) 6(1) Journal of Australian Taxation 78, it certainly has not been the subject of any judicial consideration before now. 5 I do not propose to set out the description of the 'scheme' as it appears in the notice of private ruling; merely the salient features necessary for an understanding of the dispute between the applicants and the Commissioner, and its resolution. 6 On 10 April 1979, Austral Refrigeration Pty Limited ('Austral Refrigeration') was incorporated in NSW. From this time to 20 May 2002, it was effectively owned (not less than 95%) by non-residents. 7 From 13 May 1997 to 20 May 2002, Austral Refrigeration was taken to be an exempting company by virtue of s 160APHBA of the ITAA 36 by the enactment on 16 July 1999 of the Taxation Laws Amendment Act (No 2) 1999 (Cth) (Act No 93 of 1999).


case_text: On a purely textual analysis of the relevant provisions, I am of the view that either argument is reasonably tenable, although I have a marginal preference for the applicants' argument. On the other hand, having regard to the principles of construction more recently enunciated by the High Court of Australia ( CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 10 ; (1997) 187 CLR 297) , followed by Full Courts of this Court ( HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553) , not only with respect to taxation statutes but statutes generally, it would be inappropriate to confine oneself to a purely textual analysis. This is not to say that recourse may not be made to a textual analysis where there is a lack of guidance as to legislative policy from legitimate sources or where that policy as identified is incapable of manifestation through the text of the statute: Cf. Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 449. But that is not this case. 32 In HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 Hill J, with whom Stone J and Allsop J agreed, said at [44]: 'It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.'


case_title: Peabody v Federal Commissioner of Taxation [1992] FCA 463 ; 92 ATC 4585

case_text: It is not unusual for there to be a significant lag between the date from which major changes to Australia's taxation system are legislatively introduced and the time that such changes are first considered by the Courts. For example, it was not until 1992 that this Court had the opportunity to consider the provisions of Part IVA introduced into the Income Tax Assessment Act 1936 (Cth) ('the ITAA 36') some 11 years earlier and their application to an impugned scheme: Peabody v Federal Commissioner of Taxation [1992] HCA 62 ; 92 ATC 4 ,585. The changes involved in this case are no exception. In 1987, Australia introduced an imputation system (Pt IIIAA of the ITAA 36) for the taxation of companies and their shareholders in replacement of the classical system which had hitherto existed. Subsequent changes were made to the provisions of Pt IIIAA of the ITAA 36 prior to their embodiment in Pt 3 - 6 of the Income Tax Assessment Act 1997 (Cth) ('the ITAA 97'), however I am not aware of any judicial consideration of these provisions as originally enacted or as changed. One of these changes was the insertion of Div 2A (and 1AA) by Act No 93 of 1999. Relevantly, and in short, this change introduced, effective 13 May 1997, measures designed to curb the unintended usage of franking credits through franking credit trading schemes by, inter alia, quarantining the franking surpluses of companies on their ceasing to be effectively owned by non-residents. This was done through various concepts, including the concept of an exempting company (s 160APHBA) a company effectively owned (not less than 95%) by prescribed persons (non-residents) (ss 160APHBB and 160APHBF); and the concept of a former exempting company - a company that had ceased to be an exempting company and is not again an exempting company (subs 160APHBE(1)).