case_outcome: affirmed

case_text: This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The nature of the appellant's visa application, the reasoning of the Tribunal and the decision of the Federal Magistrates Court are set out in the judgment of the Federal Magistrate, which is available on the internet: SZIBP v Minister for Immigration and Citizenship [2007] FMCA 404. 2 The appellant is a citizen of China. He arrived in Australia on 15 April 2001 on a student visa, valid until 15 March 2004. After the expiry of his visa he took no further steps to remain in Australia lawfully. On 22 June 2005 he was detained in immigration detention by the Department. Shortly after detention he applied for a protection visa. 3 The appellant claimed to have a well-founded fear of persecution in China because he was a Falun Gong practitioner. He claimed to have started practising Falun Gong two years prior to the ban in 1999. He claimed to have practised twice a week in a park. After the ban, his father paid a fine, and later a bribe to the Public Security Bureau so that the appellant would not be arrested. He continued to practise Falun Gong at the homes of members. He claimed in his protection visa application that "then things became really bad". His father organised a student visa for him and he went to Australia. He claimed that after he left China, the PSB came to his house and asked his father to write a confession which implicated the appellant's family in the escape of a Falun Gong member. The confession was then used to extort money from the appellant's family and restrictions were placed on his father's business. The appellant feared that he would be detained and threatened by the PSB on his return to China.


case_outcome: cited

case_text: The grounds in the notice of appeal in this Court can be summarised as: first: the Tribunal's decision was a jurisdictional error; secondly: the Tribunal's decision involved a procedural error constituting a breach of natural justice; thirdly: the Federal Magistrate did not give sufficient consideration to whether the Tribunal afforded the appellant natural justice, namely whether the Tribunal applied the correct test of persecution under the Convention. The fourth ground is simply a restatement of the test of jurisdictional error from Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163. The fifth ground was: "Regarding to other issues raised from the Tribunal's decision, it is obviously ill-founded without any substantial evidences excepting it is erroneous findings based. It is poor knowledge and understanding about membership of a particular social group activities as a Falun-Gong practitioner and organization in China." 8 The appellant filed written submissions which summarised the history of his visa application and asserted matters relating to his alleged connection with Falun Gong. The only part dealing with the merits of the appeal were as follows: The Tribunal's findings about the commitment to Falun Gong, it did not deal with the question presented by section 36(2) of the Migration Act did Australia owe protection obligations to me? That is, the Tribunal did not correctly apply the law to the facts. In the preceding circumstances, the Tribunal constructively failed to exercise its jurisdiction by not asking me the correct questions. That is, the Tribunal was required to consider what might happen to me if I openly practised Falun Gong. Elsewhere, the Tribunal found that "the full facts are yet to be established" as to whether operatives from the Chinese government had knowledge about my Falun Gong activities in Australia. In the preceding circumstances, it is submitted that the Tribunal constructively failed to exercise its jurisdiction and committed a jurisdictional error of law by not acting judicially in accordance with the requirements of the Act. 9 The appellant attended the appeal. He was not legally represented, but was assisted by an interpreter. When invited to address the court orally, he had nothing to say.


case_outcome: applied

case_text: It is appropriate and legitimate, in interpreting an award, to have regard to the "obvious intention of the maker of the award"; see Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 259 and 260, per Gray J. At 244, in Seymour , Northrop J had regard to the transcript before the Commission on the making of the relevant award, but derived no assistance from it. Keely J, at 255 to 256, had regard to the transcript in arriving at his interpretation of the award. 23 Mr Burrows tended a document, before Blair C, on which the Commission relied in making sub-cl 24. The document was headed "Intent of the Variation". In its first paragraph it referred to full time employees. It stated that: "Full time employees who only work Monday-Friday as normal rostered hours will receive the public holiday benefit on the "substituted" days. This is exactly the same as currently exists." In this regard a reference to a substituted day is a day substituted by the award, formerly by sub-cl 22(b) of the 1992 award and now by sub-cl 24.2 of the current Award. The "intent document" continued: "Full time employees who are not Monday-Friday workers will receive the public holiday benefits on the "actual" day, ie 25 December, 26 December and 1 January. This group includes employees who work either rotating rosters or fixed days other than Monday-Friday." This definition includes the employees the subject of this proceeding. 24 The Commission, in making what became cl 24 of the current Award, intended to ensure that employees, who worked on Christmas Day, Boxing Day or New Years Day, when those days fell on a weekend day, would receive the public holiday rate of pay for work performed on those days. There is no evidence that the Commission intended to expand the number of public holidays provided for by the award in respect of the Christmas-New Year period, thereby giving a nurse an entitlement to a paid public holiday as well as an additional public holiday declared by the State, in recognition of the fact that 25 and 26 December and 1 January were weekend days.


case_text: In this matter, I am satisfied that it is appropriate for me to consider the question of security and not refer the matter to a Full Court. The relevant principles were discussed by Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [10] - [11] . In that case, his Honour did not consider it appropriate to convene and refer the application for security for costs to a Full Court. Nor did Spender J in Dranichnikov v Centrelink [2002] FCA 1622 , where his Honour took a similar course.


case_title: Dranichnikov v Centrelink [2002] FCA 1622


case_outcome: distinguished

case_text: Both these decisions considered a contrary approach to that expressed by Beaumont J in Endormer Pty Ltd (in liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510 , in which his Honour held that the jurisdiction to order security for costs of an appeal should more properly be exercised by a Full Court. 6 In my view, a single Judge has jurisdiction to hear an application and, in the present case, it is appropriate to do so rather than convene a Full Court to hear the application for security for costs. Moreover, having heard the matter over several days, I am familiar with the background of the matter.


case_text: It was submitted by Mr Anthony Morris QC for Mr Cooper that, as I had previously expressed adverse views as to the credit of some witnesses in the matter, there may be a perception of apprehended bias and I should therefore consider disqualifying myself from hearing the application for security for costs. I have considered the principles set forth in the decision in Keating v Morris & Ors (Moynihan J, Supreme Court of Queensland, 1 September 2005 unreported) at [32] - [47]. It does not follow simply from my rejection of certain evidence and preference for other evidence that, without more, there is any basis for a perception by a reasonable informed observer that I may be perceived to be affected by apprehended bias on this application for security for costs. Therefore, I reject this submission. 8 The record companies have filed an affidavit by Mr Michael Williams, solicitor for the record companies, dated 22 March 2006. The file number on the copy of this affidavit on the Court file does not refer to the number assigned to the particular appeals, but to the number assigned to the matter at first instance. In my view, nothing turns on this, as the affidavit was accompanied by two notices of motion, one in NSD 61 of 2006 and the other in NSD 150 of 2006 in identical terms. I mention these matters because counsel for E-Talk and Mr Bal has contended that it is inappropriate, without a Court order, that evidence on one application for security for costs should be evidence on the other. I do not accept this submission and I make an order that, since the evidence relates to both applications, it may be used in each. 9 Counsel for E-Talk and Mr Bal also submits that evidence in the affidavit of Mr Williams which does not pertain to the circumstances of E-Talk and Mr Bal should be rejected as against them. I accept this submission, and I have read and used the affidavit only in relation to the particular appellants in question. The form of the affidavit makes it clear which paragraphs relate to each of the appeals and which relate to common matters.


case_outcome: referred to

case_title: Cowell v Taylor (1885) 31 Ch D 34

case_text: The Court has a wide discretion in relation to the grant of security for costs. There is no general rule because each case depends upon its own circumstances. In relation to an appeal, Courts have given weight to the injustice that might be caused to a successful litigant if the litigant is compelled to contest the matter for a second time without the probability of obtaining the costs if ultimately successful: Cowell v Taylor (1885) 31 Ch D 34 at 38. In Equity Access v Westpac Banking Corp (1989) ATPR 40-972, Hill J at 50,635 listed some of the relevant matters to be considered when deciding whether security for costs ought to be awarded: • the prosects of success; • the quantum of risk that a costs order will not be satisfied; • whether the making of an order would be oppressive in that it would stifle the reasonably arguable claim; • whether any impecuniosity of the appellants arises out of the conduct complained of; • whether there are aspects of public interest which weigh in the balance against such an order; • whether there are any particular discretionary matters peculiar to the circumstances of the case.


case_title: Equity Access v Westpac Banking Corp (1989) ATPR 40-972


case_text: Other relevant considerations affecting the discretion to award costs are also set out in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 per Beazley J; Paton v Campbell Ltd [1993] FCA 449 per Burchett J; Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334 per French J at [28]-[31].


case_title: Paton v Campbell Ltd [1993] FCA 449


case_title: Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334


case_outcome: considered

case_text: So far as the adjournment of an application for the winding up of company under s 440A is concerned, the authority which has proved influential is a decision of the Queensland Court of Appeal, Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456. Mr McPherson J, with whose judgment Pincus and Davies JJ agreed, remarked at page 457: It is evident from the terms of that subsection [440A(2)] that before it applies, the court must be satisfied not only that there is an administration, but also, as the subsection says, that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. The judge in the present case was not satisfied that it was in the creditor's interests for the administration to continue and it is his decision to that effect that is challenged here. The question of whether an administration should continue, rather than that there be a winding up, is obviously closely related to the further question of whether the creditors could hope to get more by way of payment of their debts from one form of process or administration than from the other. In order to satisfy the court of the matter referred to in s 440A(2) of the Corporations Law, one would expect that there would have to be some persuasive evidence to enable it to be seen that there were assets which, if realized under one form of administration rather than the other, would produce a larger dividend, or at least an accelerated dividend for the creditors. 16 It is possible that in a liquidation of the company, a domino effect might occur, whereby related company loans are called up successively. Whether or not that would lead to a better return to creditors than a continuance of the administration and something of a "wait and see" approach in relation to the proposed refinancing and consequential repayment, is a moot point indeed. The only particular recovery in prospect to which the administrator points in his later affidavit is that of the two preferential payments. That would yield a recovery well short of 100 cents in the dollar for the creditors. 17 What came to be proposed on behalf of the administrators after Mr Quinlivan's affidavit was read, were orders in the following terms: 1. The application for winding up be adjourned until 12 February 2009. 2. The convening period described by section 439A be extended to 13 February 2009. 3. A direction that the meeting of creditors held pursuant to section 439A be held no earlier than 14 February 2009.


case_text: This application was filed on 5 April 2007 pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act ). The applicant seeks a declaration that the assessment was not properly made by the respondent. It also seeks orders prohibiting the respondent from enforcing the assessment or the penalty assessment. In essence, the applicant claims that the assessment was made in bad faith and for an improper or ulterior purpose, so that in reality there is no assessment at all of its taxation liability in respect of that financial year: cf Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168. 4 By motion of 20 April 2007, the respondent seeks to have the application summarily dismissed on the grounds that it is clearly untenable and that it amounts to an abuse of the process of the Court. Alternatively, the respondent seeks that the statement of claim be struck out as not disclosing a reasonable cause of action. 5 On 16 August 2006, the respondent issued to the applicant a statutory demand (the first statutory demand) pursuant to s 459E of the Corporations Act 2001 (Cth) (the Corporations Act ) in respect of the monies owing under the assessment and the penalty assessment, then totalling $72,809 (the assessed amount plus interest). That prompted the applicant, on 7 September 2006, to apply to the Supreme Court of South Australia to set aside the first statutory demand pursuant to s 459G of the Corporations Act . That matter was heard on 17 November 2006. Judgment was reserved. Late in the day of 16 November 2006, the applicant filed an application in this Court also pursuant to s 39B of the Judiciary Act seeking that the notice of assessment and the penalty assessment be declared invalid and quashed (matter SAD 262 of 2006). In the Supreme Court proceedings, on 24 January 2007 Judge Withers set aside the first statutory demand because the proceedings in this Court demonstrated a genuine dispute in relation to the debt. His Honour said at [43] of his reasons: The plaintiff filed its summons in the Federal Court challenging the Deputy Commissioner's assessment late on the day before the hearing of this matter. The defendant was not aware of this prior to argument. But for the filing of that summons the plaintiff's application would have been dismissed. 6 In the meantime, on 15 January 2007 the respondent applied by motion in the Federal Court proceedings (matter SAD 262 of 2006) to strike out the application. It contended that, on the statement of claim, the application could not possibly succeed. On 1 February 2007, Finn J dismissed the application with costs. The transcript of the hearing of that day reveals that the matter was dismissed because there was no defence mounted to the motion to have the application struck out. 7 Then round two began.


case_text: On 30 March 2006, Haritopoulos Pty Ltd also issued proceedings under s 39B of the Judiciary Act in this Court (matter SAD 54 of 2006) against the respondent for orders that certain notices of assessment of income tax against it were invalid as not having been made in good faith and having been made for an improper purpose. In particular, Haritopoulos challenged the validity of an assessment issued on 8 November 2005 in respect of the financial year ended 30 June 2002 by which Haritopoulos was assessed for income tax liability at $2,813,000 (plus certain other amounts to which I do not need to refer), and the validity of an assessment issued on 24 November 2005 imposing a penalty assessment of $2,109,750. On 25 May 2006, the respondent applied to summarily dismiss that application. The motion was heard on 29 August 2006. Judgment was given on 23 March 2007. Justice Besanko found that, on the material before the Court, Haritopoulos had no arguable case that the assessment challenged was made in bad faith and entered summary judgment dismissing the proceeding in its entirety: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394. 13 In each of the proceedings heard by Finn J and Besanko J, the nature of the allegations is very similar to those now asserted in the statement of claim filed on behalf of the applicant in this matter. 14 Counsel for the applicant acknowledged that, unless the applicant is given leave to amend its statement of claim to add what is called a new issue, and to rely on an affidavit of Pantelis Charitopoulos sworn on 29 May 2007 in opposition to the motion, the Court would on the motion make an order dismissing the application because the issues raised on the present statement of claim are in essence the same as those already addressed. 19 Taking facts alleged in the present statement of claim at their highest, the issues which might point to invalidity of the assessment and of the penalty assessment are the same as those which Besanko J addressed in Haritopoulos [2007] FCA 394. They are a failure to provide particulars of the assessment and of the penalty assessment; secondly, the issue of the assessment on 15 September 2005 when, a few weeks earlier, an officer of the respondent had anticipated that it would take six to eight weeks for a default assessment to issue; thirdly, the fact that the penalty assessment was issued so close in time to the assessment; and finally, the failure to consider the package of information provided on 3 November 2005 before making the assessment (although it is clear that there was no undertaking given to consider that material before making the assessment, and in fact it was made plain on 20 October 2005 and in the letter of 8 November 2005 that a default assessment would issue notwithstanding the provision of that further information). 20 I agree with Besanko J, for the reasons his Honour gave, that on those allegations no arguable case of bad faith on the part of the respondent in making the assessment or the penalty assessment could be made out. As so much has been acknowledged by counsel for the applicant, I do not need to repeat those reasons. Furthermore, although it has not been expressly stated in this application, I note that Besanko J also rejected the further contention that arguably there had been a breach of s 166 of the 1936 Act and in any event his Honour found it beyond argument that s 175 meant that any such breach would not affect the validity of the assessment. His Honour also noted (as appears also to be the case here) that the claim based upon a want of procedural fairness had not been pursued before him, and in any event it was unarguable as ss 175 and 177 would operate so as not to affect the validity of the assessment even if there had been a want of procedural fairness to which the applicant was entitled. In the light of those provisions, Besanko J concluded, and I agree, that the applicant was bound to confine its challenge (as distinct from any challenge to the amount of the assessment under Pt IVC of the Taxation Administration Act 1953 (Cth)) to the "Hickman grounds" ( R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 per Dixon J at 615), relevantly that the assessment was not made in good faith.


case_text: I agree with Besanko J, for the reasons his Honour gave, that on those allegations no arguable case of bad faith on the part of the respondent in making the assessment or the penalty assessment could be made out. As so much has been acknowledged by counsel for the applicant, I do not need to repeat those reasons. Furthermore, although it has not been expressly stated in this application, I note that Besanko J also rejected the further contention that arguably there had been a breach of s 166 of the 1936 Act and in any event his Honour found it beyond argument that s 175 meant that any such breach would not affect the validity of the assessment. His Honour also noted (as appears also to be the case here) that the claim based upon a want of procedural fairness had not been pursued before him, and in any event it was unarguable as ss 175 and 177 would operate so as not to affect the validity of the assessment even if there had been a want of procedural fairness to which the applicant was entitled. In the light of those provisions, Besanko J concluded, and I agree, that the applicant was bound to confine its challenge (as distinct from any challenge to the amount of the assessment under Pt IVC of the Taxation Administration Act 1953 (Cth)) to the "Hickman grounds" ( R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 per Dixon J at 615), relevantly that the assessment was not made in good faith.


case_text: In those circumstances, assuming the Deed had not by then been entered into, it was not inappropriate for the respondent to endeavour to fix an amount in accordance with s 167 of the Act as the assessable income of Haritopoulos. Its decision to do so when it did, to protect or better secure its legal position, does not impugn the bona fides of the exercise of the power: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 534. Nor could the timing of the decision, or the reason for the timing of the decision, inform the manner in which the power under s 167 has exercised in the particular circumstances. 35 The position of the applicant is even more remote from the proposed Deed of Company Arrangement. There is nothing in that document to suggest that its position, or the position of the respondent in relation to the applicant, could have been affected in any way by it. The applicant is not mentioned in it. The only basis upon which counsel for the applicant sought to attribute the paragraph of the Reasons for Decision referred to in the proposed amended statement of claim to the issue of the assessment against the applicant was by use of the plural "assessments" in the passage that has been quoted. There is no reason to do so. The plural is readily explained by reference to the fact of the primary assessment under s 167 and then the penalty assessment made against Haritopoulos. In the context of that passage in those Reasons, there is no basis upon which the use of that plural expression could be taken to be referring to the applicant.


case_text: It is also clear, for the reasons already expressed, that the particular paragraph of those Reasons for Decision could not have affected the respondent forming the view in terms of s 167(b) of the 1936 Act of not being satisfied with the return furnished by the applicant for the financial year ended 30 June 2002, or the assessment of the amount on which income tax ought to be levied. It is apparent on the material that the respondent had formed the view that a default assessment should be made in respect of the applicant's taxation liability for the financial years ended 30 June 2002, at least by 20 October 2005. The default assessment crystallised the liability of the applicant to pay income tax and determine its extent: Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 at 259-260. It thus identified for the applicant when its taxation liability was due: Taylor v Commissioner of Taxation (1987) 16 FCR 212 at 217. But there is nothing to suggest the decision about the amount was other than made in good faith.


case_title: Taylor v Commissioner of Taxation (1987) 16 FCR 212


case_text: Under s 31A of the Federal Court of Australia Act 1976 (Cth) the Court may give summary judgment if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. That section appears to relax the test imposed by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125; see e.g. Garrett v National Australia Bank [2007] FCA 530 at [37] [38].


case_title: Garrett v National Australia Bank [2007] FCA 530


case_text: If there had been some evidence to the effect contended for by the applicant, then the absence of evidence from Ms Pereira might more readily lead to the inference for which the applicant contended. However, the omission to call evidence from Ms Pereira could 'not properly be treated as supplying any gap which the evidence adduced for the (plaintiff) left untouched': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 per Kitto J at 308. 64 I am also not satisfied that the respondents were on notice that evidence should be led from Ms Pereira on that issue. The applicant's application sought evidence that she held a Transitional (Permanent) visa. She could only be entitled to a Transitional (Permanent) visa if she held at Authority to Return or a Return Endorsement as at 1 September 1994. It is not clear then, in those circumstances, why, on the application as it was framed, the respondents needed to adduce evidence from Ms Pereira. 65 There was nothing in the applicant's case to put the respondents on notice that the applicant asserted that the action taken on 12 September 1997 by Ms Pereira was taken deliberately and with knowledge that the applicant had not entered Australia between April 1991 and October 1996. It was not raised in correspondence with the respondents or DIMA. It was not referred to in the application or affidavits. It was not raised in the applicant's written submissions. The respondents were never put on notice that it was a live issue that needed to be addressed. The applicant did not, at any time prior to the hearing, take issue with the respondents' assertion in 2003 that the action of 12 September 1997 was due to administrative error. For those further reasons, it would be inappropriate to raise an inference of the kind contended by the applicant due to a failure to call Ms Pereira.


case_text: The applicant argued that the cancellation was void 'ab initio'. She argued that an administrative decision involving jurisdictional error lacks legal foundation and can be regarded as no decision at all. In that regard, the applicant's counsel relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2001) 209 CLR 597 (' Bhardwaj '). The effect of the High Court decision in Bhardwaj was explained by the Full Court of this Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 204 ALR 55. In that case, Gray and Downes JJ addressed the reasoning of the members of the High Court and said at [40]: 'This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaundron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.' 104 Kenny J said at [64]: 'For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; 187 ALR 117 ( Bhardwaj ) is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant's submissions in so far as they are to the contrary effect.' 105 The applicant did not identify those provisions of the Act which would make the decision void ab initio. However, in view of the respondents' concession, which was rightly made, I need not further explore that matter. Whether the decision was ineffective or void ab initio, the Return Endorsement was not cancelled on 31 July 1989. So much is agreed by the parties. 106 The applicant argued that the issue of the Return Resident visa on 31 July 1989 was also invalid. I am not sure that necessarily follows but I think, in the end, nothing turns on that because the Return Resident visa would have expired, in relation to the first one issued, in 1994 and, in relation to the second, on 21 May 1998.


case_text: The applicant argued that the cancellation was void 'ab initio'. She argued that an administrative decision involving jurisdictional error lacks legal foundation and can be regarded as no decision at all. In that regard, the applicant's counsel relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2001) 209 CLR 597 (' Bhardwaj '). The effect of the High Court decision in Bhardwaj was explained by the Full Court of this Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 204 ALR 55. In that case, Gray and Downes JJ addressed the reasoning of the members of the High Court and said at [40]: 'This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaundron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.'


case_text: That concession, I think, also has been rightly made. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, McHugh and Gummow JJ said at [67] that McHugh J's dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, in which he said that administrative decision makers must accord parties procedural fairness including bringing to that party's attention the issue on which the decision is likely to turn so as to allow the party to deal with it, meant that there was no need for any doctrine of legitimate expectation and should be accepted as representing the law of Australia. See also Hayne J at [121] and Callinan J at [148]. For the reasons given by Finn J in Rush v Commissioner of Police [2006] FCA 12 , the doctrine of substantive legitimate expectation is not presently part of Australian law. I need, therefore, say no more about the 'other way' of putting the estoppel argument. 142 In the applicant's outline, it was contended: '27. The Applicant assumed that she would be entitled to re-enter Australia as long as she did so within three years of her previous visit, and be entitled to stay indefinitely. In the circumstances, it is reasonable to infer that the Applicant held such an assumption: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 30-32 [90] - [92] , 47 [145]. 28. This assumed state of affairs was based upon the conduct or representation of the First Respondent (or her agents) in 1997 and onwards. If the assumption is not fulfilled, the Applicant will suffer detriment.' 143 The argument needs to be considered at two snapshots in time. If the applicant assumed that she would be entitled to re-enter Australia, as long as she did so within three years of her previous visit and be entitled to stay indefinitely, as at 7 April 1994 she must have known that that entitlement would cease on that day. It follows that she must have known prior to 1 September 1994 that she was no longer entitled to a Return Endorsement as at 1 September 1994. 144 The estoppel which is sought to be erected by the applicant is an estoppel that did not arise until 12 September 1997, after she had lost an entitlement to a Return Endorsement and therefore a Transitional (Permanent) visa.


case_text: That concession, I think, also has been rightly made. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, McHugh and Gummow JJ said at [67] that McHugh J's dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, in which he said that administrative decision makers must accord parties procedural fairness including bringing to that party's attention the issue on which the decision is likely to turn so as to allow the party to deal with it, meant that there was no need for any doctrine of legitimate expectation and should be accepted as representing the law of Australia. See also Hayne J at [121] and Callinan J at [148]. For the reasons given by Finn J in Rush v Commissioner of Police [2006] FCA 12 , the doctrine of substantive legitimate expectation is not presently part of Australian law. I need, therefore, say no more about the 'other way' of putting the estoppel argument.


case_text: 'Waiver' is an imprecise term: The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (' Verwayen ') per Mason CJ at 406 and Dawson J at 451-452. It has been described as a vague term used in many senses: Smyth & Co v Bailey & Co [1940] 3 All ER 60 per Lord Wright at 70. It may be that the term is now used only to describe two legal concepts; election and estoppel, although there is support for a broader scope: see Toohey J in Verwayen at 468 and McHugh J at 491. 131 It was, however, conceded that if waiver was to apply at all it could only apply where there had been a deliberate decision by the decision maker to ignore the condition attaching to the Return Endorsement. Whatever the concept of waiver, that concession was rightly made: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305; Verwayen at 406, 473, 485 and 498.


case_text: 'Waiver' is an imprecise term: The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (' Verwayen ') per Mason CJ at 406 and Dawson J at 451-452. It has been described as a vague term used in many senses: Smyth & Co v Bailey & Co [1940] 3 All ER 60 per Lord Wright at 70. It may be that the term is now used only to describe two legal concepts; election and estoppel, although there is support for a broader scope: see Toohey J in Verwayen at 468 and McHugh J at 491.


case_text: It was, however, conceded that if waiver was to apply at all it could only apply where there had been a deliberate decision by the decision maker to ignore the condition attaching to the Return Endorsement. Whatever the concept of waiver, that concession was rightly made: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305; Verwayen at 406, 473, 485 and 498.


case_text: In Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98, Davies and Branson JJ said at 107: 'Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute.' 153 In 1984 he was issued with an Australian passport by the Australian Embassy in Belgrade and in 1990 he was issued with a second Australian passport by the same Embassy. He entered Australia twice in 1991 and 1992 on that second passport. On each occasion his passport was stamped with an arrival stamp. When he later applied to sponsor his Thai born wife and her child for permanent resident status when he was told that he was not, and never had been, an Australian citizen. He argued that he was entitled to the issue of an Australian passport and that the Minister was estopped so as to compel the Minister to grant him Australian citizenship. Burchett J said at 308-309: 'Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold from estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.' See also Tamberlin J at 325 et seq.


case_text: In Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J at 208 said: 'As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering the previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.' 151 He later approved what he described as a generally accepted proposition in Halsbury's Laws of England (4 th ed), Volume 44 ' Statutes ', par 949: 'Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.' 153 In 1984 he was issued with an Australian passport by the Australian Embassy in Belgrade and in 1990 he was issued with a second Australian passport by the same Embassy. He entered Australia twice in 1991 and 1992 on that second passport. On each occasion his passport was stamped with an arrival stamp. When he later applied to sponsor his Thai born wife and her child for permanent resident status when he was told that he was not, and never had been, an Australian citizen. He argued that he was entitled to the issue of an Australian passport and that the Minister was estopped so as to compel the Minister to grant him Australian citizenship. Burchett J said at 308-309: 'Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold from estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.' See also Tamberlin J at 325 et seq.


case_text: In Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303, the respondent was born in Australia to a father who was then a consular officer in Australia of the Republic of Yugoslavia. He was born in 1969. In 1971 he returned to Yugoslavia.


case_outcome: related

case_text: 2006, Hoy Mobile Pty Limited ( Hoy Mobile ) commenced proceedings in this Court against Allphones. Those proceedings ( the Hoy Mobile proceedings ) were heard in February and March 2008 by Rares J. His Honour delivered reasons for judgment on 30 May 2008 ( Hoy Mobile Pty Limited v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240). Allphones appealed from that judgment. On appeal, Allphones was partly successful ( Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85).


case_text: in November 2008, in proceedings NSD 1567 of 2008, the ACCC made a further application for interim injunctive relief. The ACCC brought this second application for interlocutory relief in order to address further concerns which it had in relation to the conduct of Allphones in connection with its ongoing negotiations with its franchisees. On 19 January 2009, I delivered judgment in respect of that application ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324). This second interlocutory application is not presently relevant. At 8.53 am on 9 October 2008, shortly before proceedings NSD 1567 of 2008 were called on before me on that day, the solicitors for the ACCC sent by way of email to my Associate and, at the same time, to the solicitor for Allphones, a document styled Applicant's Submissions in Support of Motion for Interlocutory Injunctions dated 9 October 2008 ( the ACCC's Written Submission ). Plainly, this document was intended to be referred to and relied upon by the ACCC at the interlocutory hearing in those proceedings fixed for that day. At the time when the ACCC's Written Submission was sent, the ACCC's application for interlocutory relief had not been resolved and the ACCC was entitled to assume that that application would proceed at 10.15 am as scheduled. Because the ACCC's claim for interlocutory relief was ultimately resolved on 9 October 2008 on a basis satisfactory to the parties and to the Court, no reference was made to the ACCC's Written Submission in open Court on 9 October 2008 nor was it relied upon by the ACCC on that occasion. I had not previously directed that a written submission be lodged. I did not grant leave to the ACCC to file in Court the ACCC's Written Submission on that occasion, nor was I asked to do so. However, on the same day, the ACCC's Written Submission was marked by my Associate as having been filed in Chambers so that a formal record of the date when the document was received would be made in the Court file. It is the practice of the Court to record the receipt by the Court of a written submission by noting that such a document has been "filed". A written submission may be filed over the counter at the Registry, in Court (with the leave of the presiding judge) or in Chambers. The ACCC's Written Submission in the present case was marked as "Filed in Chambers" on 9 October 2008. No prior leave had been granted to the ACCC to forward that document to my Chambers. At the hearing of these proceedings, Allphones submitted that, in pars 6, 13, 14, 15 and 37 of the ACCC's Written Submission, the authors of the document set out certain information which was contained in, or derived from, several monthly management accounts prepared by Allphones in respect of the period from 1 March 2004 to 6 December 2007 ( the Management Accounts ). This submission is correct, at least in respect of some of the paragraphs referred to. Allphones also contended that the Management Accounts and certain other workbooks are confidential internal business records of Allphones and that the information contained in them is confidential to Allphones. Allphones contended that I should find that the only way in which officials of the ACCC might have gained access to this information was by inspecting documents produced to the ACCC by Allphones under compulsion pursuant to a notice served upon Allphones by the ACCC on or about 6 December 2007 pursuant to the provisions of s 155 of the Act ( the s 155 Notice ). On the evidence before me, I am prepared to make that finding. In the ACCC's Written Submission, Counsel for the ACCC made reference to several paragraphs in an affidavit filed in support of the ACCC's initial interlocutory application and to several documents exhibited to that affidavit. Some of those paragraphs and documents contain material which is of a financial character and which has plainly been derived from financial material furnished to the ACCC by Allphones in response to the s 155 Notice.


case_text: order for such a private right to exist, the relevant legislation must be found to reflect a legislative intention to create a private right for breach ( Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 424 425). The question is one of construction of the statute. As submitted by Allphones, it is the statute that creates the right and the common law that supplies the remedy ( Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26 ; (1957) 97 CLR 36 at 52). It is by no means clear or beyond argument that the Act creates a private right in Allphones to sue for damages and other relief in the event that an ACCC official discloses information in breach of s 155AAA. There is much to be said for the view that no such right is created (see, in particular, the observations of McHugh and Gummow JJ in Byrne [1995] HCA 24 ; 185 CLR 410 at 458).


case_text: to the question posed in [56(b)] above (the cause of action based upon the breach of the equitable duty of confidence), the following matters are relevant: (a) The classic definition of the equitable duty of confidence is found in Lord Ashburton v Pape [1913] 2 Ch 469 at 475. At that part of his reasons, Swinfen Eady LJ said: The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it. These observations were cited with evident approval by Mason J in Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39 at 50; (b) In the present case, the information was not improperly or surreptitiously obtained. It is contended that it was imparted in confidence in circumstances where it ought not to be divulged; (c) The question of whether an equitable duty arises in the present case is not straightforward. The relevant information was contained in documents which were produced pursuant to compulsory powers invoked by the ACCC and in circumstances where it is at least arguable that the only source of any duty of confidence is s 155AAA itself. Although the use of documents and information obtained compulsorily in this way is constrained by s 155AAA and perhaps may be constrained by other general law principles, it is difficult to see how a party in the position of Allphones could sensibly expect that the information would be kept confidential and not disclosed even for legitimate purposes associated with the due performance by the ACCC of its statutory functions. It may be thought that this is particularly so in circumstances where Allphones made no express claim for confidentiality when the documents were produced. In Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 ; (2008) 246 ALR 137 , [2008] ATPR 42-218 , Gordon J, in the context of considering claims that documents ought not to be disclosed on public interest immunity grounds, said (at [30]): The theoretical merit of the ACCC's confidentiality contentions is even more deficient. A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (ie, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC's claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. And without such a reasonable expectation, the ACCC's contention that non-disclosure of the documents is required to protect the public interest cannot stand. and (d) The definition of protected information seems to me to contemplate a dichotomy between information that is given (voluntarily) in confidence to the ACCC, on the one hand, and information that was obtained by the ACCC (compulsorily) pursuant to a s 155 Notice, on the other hand. In the latter case, the section seems to contemplate that there is no room for any equitable duty of confidence to arise.


case_title: Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39


case_text: order for such a private right to exist, the relevant legislation must be found to reflect a legislative intention to create a private right for breach ( Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 424 425). The question is one of construction of the statute. As submitted by Allphones, it is the statute that creates the right and the common law that supplies the remedy ( Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26 ; (1957) 97 CLR 36 at 52).


case_text: submissions in support of the discovery order which it claims were developed in detail as follows: (a) The correct principles to be applied in the present application are: (i) First, the applicant must show that, after having made reasonable inquiries, it is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. (ii) Second, the applicant must show that 'some person' has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. (iii) Third, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. However, relief of this kind is nevertheless unavailable to a person who intends to commence 'merely speculative proceedings'. This criterion requires the applicant to demonstrate a reasonable objective basis for the proposed claim ( Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 ; Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 ; (2005) 223 ALR 238 at [16] , [91], [96], [105]). (iv) Fourth, an applicant under a rule in the form of O 15A r 3 of the Federal Court Rules must show that the order sought is necessary in the interests of justice. That is, the applicant must show that "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which be complains". (b) Allphones intends to sue the ACCC itself and the official who passed on the ACCC's Written Submission to Birch Partners and to Chew + Matthews for: (i) Breach of statutory duty. The alleged breach is a breach of s 155AAA(1) of the Act; and (ii) Breach of an equitable duty of confidence said to be owed by both the ACCC and the relevant ACCC official to Allphones in respect of Allphones' confidential information (especially its confidential financial information). (c) Objectively speaking, there is a reasonable basis for each of the foreshadowed causes of action. The ACCC knows the identity of the relevant ACCC official and has declined to reveal that identity. The disclosure of the identity of that person is in the interests of justice because it is necessary in order to provide Allphones with an effective remedy for the actionable wrongs of which it complains.


case_text: submissions in support of the discovery order which it claims were developed in detail as follows: (a) The correct principles to be applied in the present application are: (i) First, the applicant must show that, after having made reasonable inquiries, it is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. (ii) Second, the applicant must show that 'some person' has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. (iii) Third, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. However, relief of this kind is nevertheless unavailable to a person who intends to commence 'merely speculative proceedings'. This criterion requires the applicant to demonstrate a reasonable objective basis for the proposed claim ( Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 ; Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 ; (2005) 223 ALR 238 at [16] , [91], [96], [105]). (iv) Fourth, an applicant under a rule in the form of O 15A r 3 of the Federal Court Rules must show that the order sought is necessary in the interests of justice. That is, the applicant must show that "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which be complains". (b) Allphones intends to sue the ACCC itself and the official who passed on the ACCC's Written Submission to Birch Partners and to Chew + Matthews for: (i) Breach of statutory duty. The alleged breach is a breach of s 155AAA(1) of the Act; and (ii) Breach of an equitable duty of confidence said to be owed by both the ACCC and the relevant ACCC official to Allphones in respect of Allphones' confidential information (especially its confidential financial information). (c) Objectively speaking, there is a reasonable basis for each of the foreshadowed causes of action. The ACCC knows the identity of the relevant ACCC official and has declined to reveal that identity. The disclosure of the identity of that person is in the interests of justice because it is necessary in order to provide Allphones with an effective remedy for the actionable wrongs of which it complains. The ACCC did not argue that the relevant principles were other than those encapsulated in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11). The ACCC also referred me to Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170). The ACCC resisted Allphones' application on two broad grounds, namely: The principles upon which that discretion will be exercised were explained by a Full Court of this Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11) as follows: Order 15A r 3 An applicant for relief under O 15A, r 3 must show that, after having made reasonable inquiries, he or she is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. Order 15A, r 3 plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her. Secondly, the applicant must show that "some person" has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. The rule is therefore available even if relief is sought against a person who is in no way implicated in the wrongful conduct of which the applicant complains. In other words, relief is available against a "mere witness" or bystander: Stewart v Miller [1979] 2 NSWLR 128 (Sheppard J), at 135 (a decision on the New South Wales rule). To this extent, the rule differs from the equitable bill of discovery. Thirdly, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v McDonald at 41, 44; Stewart v Miller at 139-140. Nonetheless, the power conferred by O 15A, r 3 is not to be used in favour of a person who intends to commence "merely speculative proceedings": Stewart v Miller at 140; Levis v McDonald at 44. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue: Exley v Wyong Shire Council (unreported, Supreme Court, NSW, Master Allen, 10 December 1976); noted Ritchie's Supreme Court Procedure (NSW) par [13,004]. Fourthly, the High Court has emphasised that an applicant under a rule in the form of O 15A, r 3 must show that the order sought is necessary in the interests of justice. That is, the applicant must show that: "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains." John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 357. These observations emphasise the link between identity discovery and the applicant's complaint that he or she has suffered from an actionable wrong. In the present case, the debate between the parties has been directed to principles 3 and 4 (as to which see [33] and [34] in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 extracted above). In Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170), Finn J said: Order 15A, rr 3 and 6 of the Federal Court Rules 1979 (Cth) provide respectively for what is colloquially known as "identity discovery" and "information discovery": see generally Hooper v Kirella Pty Ltd (1999) 96 FCR 1. I am empowered by our Rules to order identity discovery where (i) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in this Court against that person; and (ii) it appears that some other person has, has had, or is likely to have knowledge of facts or possession of any document tending to assist in ascertaining who that person is. Information discovery in contrast is discovery against the very person against whom relief may be sought. It is tightly circumscribed in the requirements to be met before discovery may be ordered. These are that: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision. Common to both species of discovery is a prospective proceeding which may be commenced in this Court. Inherent in this possibility are the requirements that the proceeding will be (a) within federal jurisdiction and (b) in respect of a cause of action known to law which is not purely speculative in character and which is not devoid of prospects. There is no difficulty in this matter in relation to the former of these requirements, some at least of the prospective causes of action being said to arise under Commonwealth legislation: see Judiciary Act 1903 Cth, s 39B(1A)(c). It is the latter requirement, which requires the identification of a possible cause of action (in this case a legal wrong done to the applicants), that is problematic. It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A, r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A, r 6 is significantly limited by the conditions imposed in subparas (a), (b) and (c) of that rule. Subpara (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] : (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]. While O 15, r 6 expressly contemplates "fishing", it equally requires that each of the limiting conditions prescribed in subparas (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at [5] . The Full Court's judgment in Hooper v Kirella Pty Ltd 96 FCR 1 is binding upon me. I think that what is required is more than a claim worth investigating. In my judgment, what is required is a claim that is within the jurisdiction of this Court and which is not so near to being hopeless as would reasonably and properly justify the claim being described as "merely speculative". The foreshadowed claim must have some prospect of succeeding. Success in this context requires a cause of action known to the law and a real (as opposed to fanciful) prospect that some remedy might be granted. If the foreshadowed proceedings would almost certainly be susceptible to an order for dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), then preliminary discovery would ordinarily not be ordered. This is the flavour of the remarks of Jacobson J in Wyeth 255 ALR 352 at [24] [29].


case_title: Hoy Mobile Pty Limited v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240


case_outcome: followed

case_text: principles upon which that discretion will be exercised were explained by a Full Court of this Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11) as follows: Order 15A r 3 An applicant for relief under O 15A, r 3 must show that, after having made reasonable inquiries, he or she is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. Order 15A, r 3 plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her. Secondly, the applicant must show that "some person" has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. The rule is therefore available even if relief is sought against a person who is in no way implicated in the wrongful conduct of which the applicant complains. In other words, relief is available against a "mere witness" or bystander: Stewart v Miller [1979] 2 NSWLR 128 (Sheppard J), at 135 (a decision on the New South Wales rule). To this extent, the rule differs from the equitable bill of discovery. Thirdly, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v McDonald at 41, 44; Stewart v Miller at 139-140. Nonetheless, the power conferred by O 15A, r 3 is not to be used in favour of a person who intends to commence "merely speculative proceedings": Stewart v Miller at 140; Levis v McDonald at 44. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue: Exley v Wyong Shire Council (unreported, Supreme Court, NSW, Master Allen, 10 December 1976); noted Ritchie's Supreme Court Procedure (NSW) par [13,004]. Fourthly, the High Court has emphasised that an applicant under a rule in the form of O 15A, r 3 must show that the order sought is necessary in the interests of justice. That is, the applicant must show that: "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains." John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 357. These observations emphasise the link between identity discovery and the applicant's complaint that he or she has suffered from an actionable wrong. A judge called upon to decide whether an order for preliminary discovery should be made must consider whether the applicant will be left without an effective remedy if an order is not made ( John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 357). Although the judge is not called upon to decide the foreshadowed proceedings in order to determine the discovery question, he or she is required to consider whether the foreshadowed claims are devoid of prospects. This may require the judge to form a conclusion as to whether or not a particular defence might well succeed on the materials before him or her ( John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; 165 CLR 346 at 357). In the present case, the two matters which must be considered are: The two questions are related. As to the question posed in [56(a)] above, Allphones relies upon two potential causes of action as against the relevant ACCC official. These are: The statutory duty alleged to have been breached is that which is contained in s 155AAA(1) of the Act. That subsection is in the following terms: 155AAA Protection of certain information (1) A Commission official must not disclose any protected information to any person except: (a) when the Commission official is performing duties or functions as a Commission official; or (b) when the Commission official or the Commission is required or permitted by: (i) this Act or any other law of the Commonwealth; or (ii) a prescribed law of a State or internal Territory; to disclose the information. This is a case where it is difficult to see the evidentiary matrix altering much if at all were the substantive issue to be litigated. The position is analogous to the circumstances under discussion in the passages from John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; 165 CLR 346 to which I have referred at [55] above. Further, I think that the ACCC's Written Submission is a "written submission" within the meaning of O 46 r 6(2)(g) of the Federal Court Rules and that, for that reason, it was already "publicly available" within the meaning of s 155AAA(16) of the Act by 14 October 2008. Allphones submitted that the document was not a written submission because:


case_title: Lord Ashburton v Pape [1913] 2 Ch 469


case_text: also Monsanto Company v Syngenta Seeds Pty Ltd [2006] FCA 228 at [8] [11] (per Finkelstein J) where his Honour described the criterion in relation to prospects as "... a claim that is worth investigating ...". At [9], he also said that "... in most cases an applicant for identity discovery must show some prospect of success in its proposed action".


case_text: ACCC did not argue that the relevant principles were other than those encapsulated in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11). The ACCC also referred me to Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170). The ACCC resisted Allphones' application on two broad grounds, namely: In Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170), Finn J said: Order 15A, rr 3 and 6 of the Federal Court Rules 1979 (Cth) provide respectively for what is colloquially known as "identity discovery" and "information discovery": see generally Hooper v Kirella Pty Ltd (1999) 96 FCR 1. I am empowered by our Rules to order identity discovery where (i) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in this Court against that person; and (ii) it appears that some other person has, has had, or is likely to have knowledge of facts or possession of any document tending to assist in ascertaining who that person is. Information discovery in contrast is discovery against the very person against whom relief may be sought. It is tightly circumscribed in the requirements to be met before discovery may be ordered. These are that: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision. Common to both species of discovery is a prospective proceeding which may be commenced in this Court. Inherent in this possibility are the requirements that the proceeding will be (a) within federal jurisdiction and (b) in respect of a cause of action known to law which is not purely speculative in character and which is not devoid of prospects. There is no difficulty in this matter in relation to the former of these requirements, some at least of the prospective causes of action being said to arise under Commonwealth legislation: see Judiciary Act 1903 Cth, s 39B(1A)(c). It is the latter requirement, which requires the identification of a possible cause of action (in this case a legal wrong done to the applicants), that is problematic. It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A, r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A, r 6 is significantly limited by the conditions imposed in subparas (a), (b) and (c) of that rule. Subpara (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] : (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]. While O 15, r 6 expressly contemplates "fishing", it equally requires that each of the limiting conditions prescribed in subparas (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at [5] .


case_text: Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352 at [24] [29] (pp 355 356) Jacobson J described the test as being "... along the same lines as that which applies to a claim for interlocutory injunctive relief ". His Honour went on to say that consideration of that test was connected to the identification of the interests of justice. The Full Court's judgment in Hooper v Kirella Pty Ltd 96 FCR 1 is binding upon me. I think that what is required is more than a claim worth investigating. In my judgment, what is required is a claim that is within the jurisdiction of this Court and which is not so near to being hopeless as would reasonably and properly justify the claim being described as "merely speculative". The foreshadowed claim must have some prospect of succeeding. Success in this context requires a cause of action known to the law and a real (as opposed to fanciful) prospect that some remedy might be granted. If the foreshadowed proceedings would almost certainly be susceptible to an order for dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), then preliminary discovery would ordinarily not be ordered. This is the flavour of the remarks of Jacobson J in Wyeth 255 ALR 352 at [24] [29].


case_text: Court has an important responsibility of safeguarding the interest of group members as a whole under s 33V(1). There is a danger that when a settlement is reached or a discontinuance is agreed, the interests of the actual parties to the proceedings may receive their paramount consideration while the impact on group members may not be fully or properly addressed. That is why in exercising the power under s 33V(1) to approve a settlement or discontinuance the Court must scrutinise with great care the way in which any order is formulated. In the decided cases the Courts have approached settlements with a keen eye to ensuring that the interests of group members are vouched safe: see eg Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258B-C per Branson J; McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 3C-E per Wilcox J; Courtney 122 FCR at 181 [45] per Sackville J and Vernon v Village Life Ltd [2009] FCA 516 at [64] - [68] per Jacobson J.


case_text: a party does not wish to continue proceedings but to reserve the right to bring them at a later stage, a discontinuance is an appropriate means of doing so. Under O 22 r 2(1)(a), (b), (c) and r 3 of the Federal Court Rules a party will be liable for the other parties' costs (unless they otherwise agree) by discontinuing as of right before the first directions hearing, or (if the matter proceeded by pleadings) before the pleadings have closed, or by consent of all the parties, if judgment has not been entered. However, under O 22 r 2(1)(d) a party may discontinue at any time with the leave of the Court. There is no usual order provided in the scheme of O 22 in respect of costs where a party discontinues with leave under O 22 r 2(1)(d). The applicants have sought leave under O 22 r 2(1)(d). The terms of O 22 r 2 should not be narrowly construed: Re Tieken: Reg v Tieken [1995] FCA 896 per Burchett, Tamberlin and Kiefel JJ; Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274 at 279C per Moore J.


case_title: Clark v ING Life Ltd [2007] FCA 1960

case_text: I observed in Clark v ING Life Ltd [2007] FCA 1960 at [16] it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. Both parties urged on 30 April 2009 that the proceedings cease. At that time, the proceedings were treated by the parties as being under Pt IVA. I was not prepared to grant leave to discontinue on the scant evidence as it then stood or to exercise any power under s 33V(1). After the applicants indicated that they wished to discontinue, it was reasonable for both them and the State to have conducted themselves as they did. I am not satisfied that Mr Wotton acted unreasonably in bringing these proceedings in his own right. Mrs Wotton's position received no separate attention in any party's submissions. I am not in a position to conclude that she acted unreasonably. It is appropriate to treat Mrs Wotton's position cognately with that of her husband. This is because of her relationship to Mr Wotton, his circumstances as revealed in the evidence and the absence of any suggestion by the respondents that Mrs Wotton in her own right acted unreasonably. I am not satisfied that Mr Wotton had no reasonable prospect of obtaining an extension of time in respect of his own claims, given his involvement in the criminal proceedings, his subsequent conviction and incarceration. However, that issue has not yet been determined. The proceedings were more complicated than necessary. Because of the overlap of the foreshadowed representative proceedings and the misconceived joinder of the other respondents Mr and Mrs Wotton should bear some costs of those complications but not the costs of the whole proceedings.


case_text: application for leave or special leave to appeal is not an appeal. Rather, it is a proceeding in which an applicant for such leave or special leave is "... no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court": United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30] per Gleeson CJ, McHugh and Gummow JJ, applying Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 248 [47] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: "An application for special leave "is not in the ordinary course of litigation" and, until the grant of special leave, "there are no proceedings inter partes before the Court ( Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122). Further, the disposition of a special leave application is not the determination of an appeal ( Attorney-General (Cth) v Finch [No 2] [1984] HCA 40 ; (1984) 155 CLR 107 at 115) . The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re-opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require."


case_text: follows from what I have held, that s 33V of the Federal Court of Australia Act does not apply to the application to discontinue. In the event that this conclusion is incorrect, both parties accepted that it was possible to grant leave for the proceedings to be discontinued and an appropriate order made protecting the rights of persons who were intended to be group members from the consequences of allowing that discontinuance. The sources of power to make those orders would be either ss 22 and 23 or (if I were wrong about the proceedings not being made under Pt IVA) ss 33V(2) , 33Z (1)(g) and s 33ZF of the Federal Court of Australia Act . Each of those sections is sufficient to enable the Court to make a declaration protecting the rights of third parties, being those whom the applicants sought to claim were group members. None of those third parties has been heard or joined. They have had no opportunity to protect their interests. Ordinarily (leaving aside cases or statutes excluding the principles of natural justice or procedural fairness) no-one should have his or her rights affected or destroyed without an opportunity of being heard. This principle was illustrated in the great case of Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180 [143 ER 414] and remains applicable today: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1 ; Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J.


case_outcome: discussed

case_title: Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180


case_text: group member is not a party to representative proceedings brought by another person: cf Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1 at 34 [50] per Gaudron, Gummow and Hayne JJ; see too at 21-22 [6] per Gleeson CJ (a case dealing with a similar legislative scheme under Pt 4A of the Supreme Court Act 1986 (Vic)); Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 179 [35] - [36] per Sackville J. But, s 33H(1)(b) and (c) required that one or more of the application or forms 129 or 167 specified the nature of the claims made by the group members and the questions of law or fact common to them. There was no claim made (as referred to in s 33C(1)(c)) by the group members in any of those documents for an allowance of further time to file an application under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act . Nor did any of those documents specify any question of law or fact common to the group members (referred to in s 33H(1)(c)) the subject of the application to allow further time to make the foreshadowed application under s 46PO(1). The Court has an important responsibility of safeguarding the interest of group members as a whole under s 33V(1). There is a danger that when a settlement is reached or a discontinuance is agreed, the interests of the actual parties to the proceedings may receive their paramount consideration while the impact on group members may not be fully or properly addressed. That is why in exercising the power under s 33V(1) to approve a settlement or discontinuance the Court must scrutinise with great care the way in which any order is formulated. In the decided cases the Courts have approached settlements with a keen eye to ensuring that the interests of group members are vouched safe: see eg Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258B-C per Branson J; McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 3C-E per Wilcox J; Courtney 122 FCR at 181 [45] per Sackville J and Vernon v Village Life Ltd [2009] FCA 516 at [64] - [68] per Jacobson J. And, the power in s 33ZF(1) enables the Court to make any order that it thinks appropriate or necessary to ensure that justice is done in a proceeding under Pt IVA. Wilcox J described the extent of the power in s 33ZF(1) as being "the widest possible" in McMullin 84 FCR at 4C-D. In Courtney 122 FCR at 182-184 [47]-[54] esp at [52] Sackville J examined the scope of the power, and cautioned that s 33ZF(1) should not become a vehicle for rewriting the rest of Pt IVA. This provision, like all provisions conferring jurisdiction or granting powers to a court, should not be construed narrowly by making implications or imposing limitations which are not found in its express words: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.


case_title: DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226


case_text: Finn J pointed out in O'Neil v Mann [2000] FCA 1680 at [12] the rules do not provide expressly for the incidence of costs on the discontinuance of proceedings under O 22 r 2(1)(d) with the leave of the Court. The power to order costs in such a situation arises pursuant to s 43 of the Federal Court of Australia Act . That power is not conditioned by any predetermined rule: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 234 CLR 52 at 63 [26] - [27] , 65 [34] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30 at 42-43 [46] - [48] per myself, Finn J at 32 [1] and Besanko J at 51 [82] agreeing.


case_text: fact that the Court might refuse an initial application to allow further time under s 46PO(2) would not preclude a further application, although it would be difficult to imagine that, in the ordinary course, any such further application would have any prospects of being granted unless some significant new matter had come to light since the earlier refusal. There is, of course, a distinction between an application for leave or special leave to appeal to a court and one to extend the time within which proceedings under s 46PO(2) might be brought. In the former case the parties' rights have been determined already by the judgment or order which is to be the subject of an appeal if leave or special leave were granted: cp Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] per Brennan CJ and McHugh JJ. An order under s 46PO(2) allowing an extension of time in which to make an application under s 46PO(1) , if granted, entitles the affected person to have his or her allegation of unlawful discrimination heard and determined by the Court. If an extension of time is not allowed, then a respondent to the complaint before the Commission cannot be sued under s 46PO in respect of the alleged unlawful discrimination. Hence, unless and until, the Court allows further time under s 46PO(2) to make an application more than 28 days after the issue of a notice of termination, proceedings of the kind brought by the applicants here are in the nature of a mere application to the Court for permission to commence proceedings. That permission is given if the Court allows further time under s 46PO(2) to file a substantive application alleging unlawful discrimination by one or more respondents. If the Court does not allow further time under s 46PO(2) , there is no application made invoking the jurisdiction of the Court to hear and determine the allegation of unlawful discrimination within the meaning of s 46PO(1) notwithstanding the form of the initiating process or application filed. Thus, I am of opinion that the applicants have not made an application under s 46PO(1) at this time. Rather, they have made an application under s 46PO(2) seeking further time in which to bring proceedings under s 46PO(1). The jurisdiction that the application filed on 11 March 2009 invoked was confined to the issue in the last clause of s 46PO(2). That jurisdiction required the Court to hear and determine only whether the applicants should be allowed further time (beyond 28 days after 12 September 2007) in which to make an application alleging unlawful discrimination by one or more of the respondents to the terminated complaint.


case_text: group member is not a party to representative proceedings brought by another person: cf Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1 at 34 [50] per Gaudron, Gummow and Hayne JJ; see too at 21-22 [6] per Gleeson CJ (a case dealing with a similar legislative scheme under Pt 4A of the Supreme Court Act 1986 (Vic)); Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 179 [35] - [36] per Sackville J. But, s 33H(1)(b) and (c) required that one or more of the application or forms 129 or 167 specified the nature of the claims made by the group members and the questions of law or fact common to them. There was no claim made (as referred to in s 33C(1)(c)) by the group members in any of those documents for an allowance of further time to file an application under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act . Nor did any of those documents specify any question of law or fact common to the group members (referred to in s 33H(1)(c)) the subject of the application to allow further time to make the foreshadowed application under s 46PO(1).


case_text: the power in s 33ZF(1) enables the Court to make any order that it thinks appropriate or necessary to ensure that justice is done in a proceeding under Pt IVA. Wilcox J described the extent of the power in s 33ZF(1) as being "the widest possible" in McMullin 84 FCR at 4C-D. In Courtney 122 FCR at 182-184 [47]-[54] esp at [52] Sackville J examined the scope of the power, and cautioned that s 33ZF(1) should not become a vehicle for rewriting the rest of Pt IVA. This provision, like all provisions conferring jurisdiction or granting powers to a court, should not be construed narrowly by making implications or imposing limitations which are not found in its express words: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.


case_title: Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30


case_title: Re Tieken: Reg v Tieken [1995] FCA 896


case_text: State also relied on an argument that there were three separate complaints before the Commission that had been joined improperly in the proposed proceedings. I reject that argument. The issues were part of the one matter arising out of events on Palm Island in November 2004: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1998) 198 CLR 511 at 585-586 [139] - [142] , 587-588 [146]-[148] per Gummow and Hayne JJ with whom Gleeson CJ and Gaudron J agreed at 546 [25] and [20]. In addition, the State contended that the proceedings had been couched as representative proceedings for an ulterior purpose. It complained that the applicants' solicitors had claimed that they were acting on behalf of the group members in correspondence in order to achieve a settlement, after having stated that they wished to discontinue. The State contended that it may be inferred that the group proceedings were brought only for "some improper purpose" and are an abuse of court. It did not identify the allegedly improper purpose beyond these generalisations.


case_title: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1


case_title: United Mexican States v Cabal (2001) 209 CLR 165


case_text: my opinion this argument should be rejected. The onus of establishing an abuse of process is a heavy one: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. Most proceedings are brought to obtain a vindication of rights either by a judgment of the Court or a negotiated settlement. I am not satisfied that there has been an abuse of the process of the Court by the applicants in bringing proceedings to seek to achieve such an outcome in the present case. There was no improper purpose of the applicants identified in their submissions, nor any abuse of the process of the Court. If the applicants did have an underlying basis for their claim of unlawful discrimination, they would be entitled to compensation either from a judgment or a settlement. And, merely because the applicants' solicitors recently concluded that the conduct of a representative proceeding would be difficult without the support of the Council, this did not entail that a settlement necessarily could not benefit group numbers. Next, the State argued that the proceedings had been brought in the New South Wales Registry of the Court when Moore J, in the earlier proceedings brought by Mr Wotton, had ordered the transfer of those proceedings to the Queensland Registry. The State argued that these proceedings should be seen as a continuation of the previous interlocutory application and that Mr and Mrs Wotton had flouted Moore J's direction to transfer the proceedings to the Queensland Registry. I reject this argument. These proceedings are new proceedings. The proceedings before Moore J concerned an early stage in the complaint process prior to the Commission having dealt with the complaint. These proceedings arise out of rights said to flow from the rejection of the complaint. In addition, the solicitors for the applicants and their counsel, who are in Sydney, are acting pro bono. I infer that it would be more difficult for them at this stage to conduct the proceedings in Brisbane or elsewhere in Queensland, even though they have travelled to Palm Island to assist the applicants in this and other matters. At the moment I am not satisfied that there was any abuse in commencing the proceedings here, although I have considerable sympathy with the proposition, implicit in the State's submissions, that a venue for trial of the proposed representative proceedings in Queensland would be likely to be more convenient and satisfactory than here. I am not satisfied that the State has established any improper purpose for the institution of these proceedings. On the evidence, the applicants appear to have had a proper purpose to vindicate the rights claimed. I reject the application for indemnity costs.