case_outcome: distinguished

case_text: At the Federal Magistrates Court, I said that I did not attend the hearing because I was sick. This was not true. The reason why I said this was that I did not want to break the promise I made to Mr Marzukie that I would not tell any one that I was working for him as a nanny. At the time, I did not realise that Mr Marzukie had taken advantage of me, and that because of his actions, I may be deported to Indonesia where I could potentially be silenced either by ending up in Jail, or worse, losing my life. 17 The second affidavit was affirmed on 1 December 2007, where the appellant deposed as follows: 1. I like to add this Affidavit to the filed Affidavit that I affirmed on 11 October 2007. 2. Since affirming the Affidavit on 11 October 2007, I have had a chance refresh my memory, and as a result if there is any conflict between this Affidavit and the Affidavit that I affirmed on 11 October 2007, this Affidavit will contain the true information and not the other Affidavit. 3. I arrived in Australia on 22 November 2004, and commenced work with Mr. Erwin Marzukie on 29 November 2004, as a live-in-nanny. 4. I commenced work with Mr. Marzukie on the basis that he was looking for a live-in-nanny. 5. When I commenced work with Mr. Marzukie, I did not know that he was a Migrant Agent until several days after commencing work, when on about 3 December 2004, Mr. Marzukie inquired about my Visa while in Australia. 6. When on about 3 December 2004, I told Mr. Marzukie about my Visa, Mr. Marzukie referred me to another Migrant Agent. 7. Later on about 3 December 2004, before the other Migrant Agent commenced his work, that Migrant Agent informed me of his fees, which I could not afford as I have just arrived in Australia, and had little money with me. 8. When I explained to Mr. Marzukie that I could not afford the fees of the other Migrant Agent, he said he will do the work for me, for free. 9. The following conversation took place when Mr. Marzukie told me that he will act as my Migrant Agent for free: I said: Thank you very much. He said: I will be your Migrant Agent provided you promise not to tell anyone that you are working for me as a live-in-nanny, otherwise we could get in trouble with the government. Can I trust you to do this? I said: Why would we get into trouble with the government if they found out that I was working with you as a live-in-nanny? He said: Don't ask questions. If I cannot trust you that you will not mention that you are working for me as a live-in-nanny, I will find someone else instead. I said: I am very sorry, I will not do that again. You know that I cannot speak English, nor can I read and write English, and that there is nobody in Australia that can help me because I do not have any friends or relatives in Australia, and you are my only hope of escaping with my life from Indonesia, and even now that I am in Australia, I am still afraid because at any time I might be sent back to Indonesia. He said: Do not worry, leave it to me. In your application for the protection visa I will put your residential address being that of one of the staff that work for me, you understand, because I said, there will be problems if I put your residential address as my house. You just have to trust me. I said: You know better than me about these things, I trust you to do the right thing by me. You are the only one in Australia that is able to help me, I fully rely on you. He said: Good, I will pay you $450.00 per week, and you have half a day every Thursday off work. That is, you will work for me six and a half days per week as a live in nanny. Remember, if you tell anybody about working for me, then you would most probably be sent back to Indonesia, do you understand? You tell nobody about this. I said: Thank you very much, I promise I will tell nobody. 10. I have worked for Mr. Marzukie from 29 November 2004 to 23 December 2005, as a live-in-nanny. 11. As stated in paragraph 9 above, Mr. Marzukie paid me $450.00 per week, and I receive free board and lodging, worth about $100.00 per week. 12. As stated in paragraph 9, above, I worked for Mr. Marzukie 6 days and a half per week, where I have half a day off work every week, every Thursday afternoon. The time I spent working per day is on average 17 hours per day. The following is a summary of the work I did at Mr. Marzukie's house: a. I wake up at 6.00am, and start work about 6.10am. b. I then go to the kitchen and boil water for Mr. and Mrs. Marzukie, so that they can have hot water for their coffee when they come downstairs. c. I then prepare Hermione's breakfast, who was about 2 years old. d. For 2 to 3 days per week I prepare breakfast for Mr. and Mrs. Marzukie, which includes fresh fried rice and noodles. e. By about 9.30am, I take a break of 30 minutes and go jogging outside the house. f. By 10.00am Hermione comes down from her parent's bedroom which is upstairs. g. I then wash Hermione, and toilet her, and then feed her breakfast. h. I take care of Hermione while Mr. and Mrs. Marzukie go to the office in the city, and they return home by 8.30 pm. i. While Mr. and Mrs. Marzukie are at the office, I do the cooking for all, the Marzukie family, and I also clean the house. Most of the cooking I do when Hermione is sleeping in my bedroom between 1.30 pm and 3.30 pm. j. I also do all the laundry washing and ironing, for the whole house. k. When Mr. and Mrs. Marzukie come home from the office at about 8.30 pm, I unload their shopping from their car, and they go upstairs to their bedroom to change their cloth. l. While Mr. and Mrs. Marzukie are upstairs, I have to have the food heated so that it is hot when they come down stairs to have their dinner. m. I eat with Mr. and Mrs. Marzukie, and when we are finished eating, I do all the dishwashing and tidy up the kitchen. n. By about 10.15 pm, once the kitchen is all clean and tidy, I go to do the laundry and do the laundry for all the towels that were used during the day. o. I then empty all the rubbish bins in the house and take the rubbish outside. p. I am responsible for putting the garbage out every Thursday night. q. Every second weekend, Mr. Marzukie's daughters from his previous marriage, Natasha and Sarah, come on Friday night and leave Sunday afternoon. I have to do extra work when they visit because they leave food all over the TV room which I have to clean up, and when they use the family bathroom they make a big mess which I have to clean up. r. When on the weekend Mr. and Mrs. Marzukie go shopping they take me with them so that I can be with Hermione and so that I can help them carry their shopping bags. s. On the weekends, Mrs. Marzukie will not feed Hermione because Hermione refuses to eat from Mrs. Marzukie, so Hermione only eats from me. t. By 11.00 pm all the work is finished, I go to bed to wake up the next day at 6.00 am and do the above all over again. 13. Based from the above my income per week from Mr. Marzukie is $450.00 plus board and lodging worth about $100.00 per week, a total amount of being $550.00 per week, for working about 110 hours per week, which means my hourly rate while working for Mr. Marzukie is $5.00 per hour, and I am not entitled to sick leave or holiday leave. At $550.00 per week my annual total income from Mr. Marzukie would be $28,600.00. 14. On or about 17 October 2007 or 18 October 2007, after Mr. Marzukie had been served with this Appeal's filed documents, I received 3 phone calls from Mrs. Marzukie, which I did not answer, and an SMS message from her "Offering me part-time work", which I did not respond to. CONSIDERATION 18 The first issue in this appeal is the resolution of the appellant's application seeking leave to adduce further evidence in the appeal. 19 There was debate before me as to the relevant considerations that may lead to the reception of further evidence by reference to a number of authorities: see for example Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 , at 640-642; Arnotts v Trade Practices Commission (1990) 97 ALR 555 at 612; Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444, and generally Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577. 20 Section 27 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') permits this Court in its discretion to receive further evidence. The exercise of the discretion to receive further evidence must be exercised judicially and consistently with the judicial process. I am not confined to the common law considerations relating to the reception of fresh evidence. So much is clear from the principles enunciated in CDJ v VAJ (No 1) [1998] HCA 67 ; (1998) 197 CLR 172 at [52] - [53] per Gaudron J in dealing with an equivalent provision in the Family Law Act 1975 (Cth). Nevertheless, there are well-established, sound principles surrounding admission of fresh evidence which should normally be considered as relevant to the exercise of the discretion to receive further evidence pursuant to s 27 , but which should not constrain this Court in considering the overall demands of justice. 21 In my view, the demands of justice do not require the admission of the further evidence sought to be relied upon by the appellant for the following reasons: (a) The further evidence was clearly capable of being adduced by the appellant in the court below, and there was no justification for the appellant not raising this evidence in the court below; (b) The appellant submitted that the evidence sought to be tendered substantiated two grounds of appeal. The first ground was that the appellant was denied a real and meaningful invitation because of the conscious deception by her migration agent on the basis of the principles in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64. The second ground was that the Tribunal's failure to take a simple administrative step such as calling the appellant on the day of the hearing was a miscarriage of the Tribunal's discretion under s 426A. For reasons set out later, I do not consider these grounds of appeal could succeed even if the further evidence was received in this appeal; and (c) There is the desirability of finality in litigation, particularly in refugee cases involving late allegations of agent fraud. It is highly desirable that those allegations be tested at first instance, and not in the appellate jurisdiction of this Court. I understand that the stakes for the appellant are very high, and that she may hold subjective fears of serious harm or even death, by reason of her actions in Indonesia. The prejudice to the appellant is a factor to be considered. Finality in litigation is a significant factor, although it must be weighed in the balance with other aspects, including what is at stake for an appellant. In view of my conclusions as to the other matters relevant to the reception of further evidence, the consideration of finality simply serves to support the final view I have reached in this appeal. 22 In relation to the ability of the appellant to provide the further evidence and whether there was a justification in not adducing the further evidence in the court below, it is necessary to examine the position as it existed before the Federal Magistrate on 11 July 2007, the date of the hearing. 23 At the outset I indicate that I do not accept as contended by the appellant that in the circumstances of this case, it can be said that the ground of appeal based upon the High Court decision in SZFDE [2007] HCA 35 ; 237 ALR 64 was not available because the High Court decision now relied upon was not handed down until 2 August 2007. The ground itself was known and was capable of being agitated, even if only formally, in view of the earlier Full Federal Court's different position. In any event, the reality of the position is that the appellant, unrepresented before the Federal Magistrate, probably had no knowledge of the legal position, but could and should have sought to put to the Federal Magistrate the true factual position in support of her appeal . This, she simply did not do. I do not consider that the fact that the ground of appeal now sought to be agitated would necessarily have been unsuccessful before the Federal Magistrate was the reason that the further evidence now sought to be adduced was not tendered before the Federal Magistrates Court. The appellant in full knowledge of the facts, chose to misinform the Federal Magistrate of the true position. 24 It is important to realise that, as the appellant herself deposes, on or about 23 December 2005 Mr Marzukie terminated the appellant's employment as a nanny and told her that he would no longer help her in relation to her visa, and stated that she was on her own. Another migration agent was found by the appellant to help with her application before the Federal Magistrates Court. The appellant suggests she had trouble communicating with this new migration agent due to language difficulties and was not in fact able to communicate her circumstances to anyone until August 2007. 25 Be that as it may, the facts and circumstances that are now sought to be relied upon by the appellant were obviously well-known to her at the time of the hearing of the Federal Magistrates Court. The appellant was no longer under the influence of Mr Marzukie or dependent on him for her livelihood, and had a new migration agent. 26 Before the Federal Magistrate no mention was made of any of the facts and circumstances now relied upon, and the appellant misinformed the Federal Magistrate that she was sick and that this was the reason she could not attend the Tribunal hearing. 27 The appellant now accepts that this was not true, and says that the reason why she misinformed the Federal Magistrate was because she did not want to break the promise she made to Mr Marzukie that she would not tell anyone that she was working as a nanny. She said she did not realise Mr Marzukie had taken advantage of her and that because of his actions she could be deported to Indonesia with possible serious consequences. 28 I should interpolate that these reasons for misinforming the Federal Magistrate were not sought to be put before this Court on this appeal, in that they were not read as being part of the evidence tendered by the appellant. However, the part of the affidavit containing these reasons was tendered by the first respondent as admissions of the appellant being contained in her first affidavit as filed (see par 31). 29 In my view, such reasons could only assist the appellant, as they seek to provide a justification for her deliberate misinforming of the Federal Magistrate. Without such evidence, this Court is only left with the fact that the appellant deliberately misinformed the Federal Magistrate that she was sick, and this was the reason she did not attend the Tribunal hearing, with no explanation sought to be made to explain the reason for the appellant so deliberately misinforming the Federal Magistrate. In the end, nothing turns upon the acceptance or otherwise of the reasons given for the appellant's conduct before the Federal Magistrates Court, but I have taken her explanation into account. 30 If Mr Marzukie still had some control over the appellant as at 11 July 2007 (the Federal Magistrates Court hearing date), and the appellant did not have a migration agent to assist her (even if only in a limited way), I could perhaps understand the appellant misinforming the Federal Magistrate. However, by 11 July 2007 (nearly one year and six months after being sacked by Mr Marzukie), the appellant freely chose not to inform the Federal Magistrate of the facts and circumstances now relied upon, and instead said she was sick at the time of the Tribunal hearing and for this reason could not attend. 31 Even accepting that the discretion to accept the further evidence now sought to be adduced is very wide, and is not to be limited by enumerating an exhaustive list of relevant considerations, an important consideration is whether the evidence was capable of being adduced by the appellant in the court below and whether there is any justification for the evidence not being adduced. The hearing before the Federal Magistrates Court was the appellant's opportunity to advance her case, and inform the Federal Magistrates Court truthfully of the facts. I am satisfied that the appellant did have the free choice and the ability to inform the Federal Magistrate of the facts and circumstances now relied upon. If the reason for not doing so was because of her promise not to tell about her employment, that was not a proper basis for misinforming the Federal Magistrates Court. 35 Looking at the contention regarding fraud on the Tribunal, the appellant relies upon the principles set out in the decision of the High Court of Australia in SZFDE [2007] HCA 35 ; 237 ALR 64. 36 It is important to consider the facts of that case and the relevant principle there identified. 37 The High Court stated the relevant facts as follows (at [39]-[49]): The evidence of the first appellant was that when, with her husband, she met Mr Hussain [the migration agent] to discuss the tribunal's letter of invitation dated 27 June 2003, which invited attendance at a hearing of the tribunal, Mr Hussain used words to the effect: It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you. A letter to the then minister, dated 15 September 2003, was composed by Mr Hussain in the name of the second appellant. It was headed "Application for Consideration [under] Section 417 of the Migration Act ". Section 417 conferred a power upon the minister, if the minister thought it was in the public interest to do so, to substitute for a decision of the tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected. The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the tribunal hearing "by the fraudulent behaviour of Mr Hussain". The result was to have "deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425". ... Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the tribunal hearing. The inference is well open upon the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281. ... The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. 38 The important point to note, in my view, is that the advice given by Mr Hussain directly and immediately had the consequence that the process of the Tribunal was stultified. The decision-making process was directly corrupted. As a direct result of the representation of Mr Hussain the appellant and her family were dissuaded from appearing before the Tribunal, and in fact did not appear. There was also in effect a conveying of a false impression to the Tribunal, namely that the appellant did not wish to appear. 39 Before this Court, the appellant has set out the basis of the fraud in the Further Amended Grounds of Appeal. This is important as the High Court observed in SZFDE [2007] HCA 35 ; 237 ALR 64 (at [41]-[42]): In the Full Court French J properly observed: ... The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings. In his reasons, French J developed the matter as follows: ... The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister. ... The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7 , was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474 . 40 If one analyses the position on the facts as sought to be adduced in this appeal, there is no evidence of a fraud on the Tribunal within the meaning of SZFDE . 41 In SZFDE [2007] HCA 35 ; 237 ALR 64 at [45] the High Court drew inferences about the conduct and motivation of the agent in question in order to uphold the finding of fraud. In that case, the agent falsely held himself out to the applicants as a registered agent and a solicitor when he was neither. He took their money for a service that he was prevented by law from performing: see SZFDE [2007] HCA 35 ; 237 ALR 64 at [40] and [42]. He gave deliberately false advice which was designed to stop them from attending the Tribunal hearing (at [42]). If his conduct had been discovered he risked imprisonment for 10 years (at [46]). 42 However, in this appeal before me the factual position is quite different. Even if the appellant's evidence were to be accepted in every respect, the Court would find that Mr Marzukie was motivated by his personal desire to have the appellant look after his child for the day (because it suited his personal needs) and was in no way motivated to prevent the Tribunal from conducting a hearing. 43 I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense. 44 It is noted that the evidence the appellant seeks to adduce concerns her working conditions (the amount paid to the appellant, the tasks she was required to perform, the hours she was required to work). However, the nature of the arrangements for payment (if any) for migration services cannot take the appellant very far, unless it could be established (as it was in SZFDE ) that this was in some way connected to the deliberate 'stultification' of the legislative scheme or 'disabling' of the processes of the Tribunal: SZFDE [2007] HCA 35 ; 237 ALR 64 at [49] and [51]. In my view there is no connection between the working arrangements made and the processes of the Tribunal such that those processes were disabled or stultified by the conduct of Mr Marzukie. 45 The further evidence sought to be adduced by the appellant shows that Mr Marzukie gave the appellant at least some letters from the Tribunal, her own mobile number was supplied to the Tribunal in the application for review, the appellant was aware of the existence of the hearing and the date upon which it was to take place, she knew the hearing was 'important', and she intended to go to the hearing. Whilst the appellant was influenced by Mr Marzukie at the last minute not to attend (because she 'dared not oppose him'), she understood the Tribunal hearing was important, and she made the decision not to attend with that knowledge. 46 Further, Mr Marzukie's role and conduct as a registered migration agent is quite unlike that of the migration agent in SZFDE . Such things as encouraging the insertion of the incorrect address on the application form, and telling the appellant that the hearing was an 'interview' are not so significant as to warrant a finding of fraud upon the Tribunal. Further, the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence. 50 As the High Court said in the appeal of this decision ( SZFDE [2007] HCA 35 ; 237 ALR 64) at [53] : The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 62 In SZJBA [2007] FCA 1592 ; 164 FCR 14 , Allsop J said, starting at [53]: On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. ... ... In my view, the inaction of the tribunal for the reasons I have given, amounted to an undermining of the reality and meaningfulness of the invitation to comment that was given purportedly under s 424A or under s 424 or under the general executive power. As such, it was a jurisdictional error in that it undermined the steps in the conduct of the review undertaken pursuant to Pt 7 of the Migration Act , that were required by, or authorised by, the statute or authorised as the conduct of the general executive power under s 61 of the Commonwealth Constitution which had been undertaken by the Tribunal, and, once undertaken, were not to be frustrated by the action or inaction of the Tribunal in circumstances where, as I have said, it was obliged to take basic and simple administrative procedural steps. ... Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power . Division 4 of Pt 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution : see SZFDE 237 ALR 164 at [32], any subversion of the process of the tribunal is a matter of importance: SZFDE [2007] HCA 35 ; 237 ALR 64 at [32] . The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily be accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60] . The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error . [Emphasis added]


case_outcome: cited

case_text: I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense.


case_text: There is authority that 'there was no obligation on the part of the Tribunal to ensure that the hearing invitation was provided in a language which the appellant could understand': see SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] . 58 However, be that as it may, there was nothing to suggest in this case that the Tribunal had any need to consider the possibility that the appellant did not understand or could not be properly informed of the invitation I can find nothing that would put the Tribunal on notice of such a circumstance. The application for review was apparently signed by the appellant, on its face without the aid of an interpreter. Prior to that, the appellant in the application for a visa had employed a migration agent. Admittedly the Tribunal was notified that the appellant needed an Indonesian interpreter. However, there is nothing that puts the Tribunal on notice that in giving an invitation it had to go any further than the method it adopted. The invitation, on the basis of the information provided by the appellant and the legislative scheme, could be sent to the appellant's nominated address and contact made on the nominated mobile number (which was in fact the appellant's number) and, just as the appellant obviously needed to have had assistance in completing the application for review, the Tribunal could assume similar assistance would be made available if any further correspondence took place. 59 The Tribunal was certainly entitled to assume the appellant had received the letter inviting her to attend the fact that the appellant had not corresponded with the Tribunal since the original application for review was lodged does not mean that the Tribunal was aware of any irregularities or had an obligation to further chase up the appellant to attend the hearing. 60 In fact, as we now know, the appellant was aware of the hearing date, and knew it was 'important'. The failure to attend had nothing to do, in fact, with the appellant's lack of familiarity with the English language.


case_title: SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310


case_outcome: affirmed

case_text: This is an appeal from orders made by the Federal Magistrates Court of Australia on 11 July 2007 in SZHVM v Minister for Immigration and Citizenship [2007] FMCA 1200. 2 The appellant is a citizen of Indonesia and arrived in Australia on 23 November 2004. On 22 December 2004, the appellant lodged an application for a protection (class XA) visa. 3 The appellant claimed that she had witnessed electoral fraud during the Indonesian presidential election of 2004. She reported what she saw to the Komiti Pemilihan Umum ('the KPU'), the Indonesian National Elections Commission, in her local area. She claimed that the following day she was threatened with death if she 'did not keep quiet'. Days after that she was assaulted by young men. She suspected that her report to the KPU had leaked. She hid at a friend's place but was then told to leave the house because of the fears her friend held as a result of offering a safe haven to the appellant. The appellant departed from Indonesia. She feared that she would suffer serious harm if she returned to Indonesia and that the authorities would not protect her.


case_title: SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661


case_text: In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30] - [33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal's statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]: We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE , at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. 64 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , the Full Court distinguished SZJBA on the basis that that decision was different because in that case 'there was a failure to inquire into readily available and centrally relevant information' (at [29]). Similarly, in my view the factual position confronting Allsop J in SZJBA was very different from that which arises in this appeal, and the failure to inquire cannot be seen on its face to subvert the observance of the Tribunal of its obligation to give procedural fairness.


case_text: It is also appropriate to mention at this point the recent decision of Finkelstein J in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334. In that case, his Honour was of the view, having considered the decision in SZFDE , that where a migration agent 'falsely indicated in the response to hearing form that the appellant would attend the hearing when the agent knew that could not occur' or where an agent 'signed documents on the appellant's behalf without his knowledge, consent or authority ... and forged [the appellant's] signature', then a court would likely find that there had been a fraud on the Tribunal. For the reasons already set out, SZIVK is distinguishable on the facts from those sought to be put to me on this appeal. 52 In this appeal, even accepting that the evidence suggests that the appellant's negative response to the hearing invitation was procured by her purported agent's coercion, this does and did not amount to dishonest conduct. The appellant's account of her conversation with Mr Marzukie on the morning of the hearing, demonstrating his refusal to take her and his direction that she mind his child in circumstances where she was unable to contact or reach the Tribunal on her own or to otherwise manage independently if she refused his direction, may give rise to an argument that might be characterised as duress. However, duress, while perhaps actionable on other grounds, does not amount to material dishonesty of another which conveys a false impression to the decision-maker such as to make the conduct complained of cognisable as fraud upon the Tribunal under the principles set forth in SZFDE . 54 Whilst the appeal before me is not simply a case of a failure to inform or mere inadvertence, nor is it to be characterised as a case of fraud vis-à-vis the appellant, nor even then a fraud on the Tribunal. I appreciate, as Finkelstein J in SZIVK [2008] FCA 334 (at [33]) reminds us, that there are many ways in which fraud may be manifested. However, this is not a case where one can infer that the agent, in making the statements to the appellant that resulted in her not attending, acted other than honestly; Mr Marzukie was just concerned about his own interests and put them above those of the appellant. 55 Accordingly, the appellant's first ground of appeal could not succeed even accepting the further evidence of the appellant. 56 The applicant's second ground of appeal--that the Federal Magistrate erred in failing to find that the Tribunal should have considered that the appellant's failure to attend the hearing could have been due to the fact that she could not understand the English language invitation, such that the invitation was not 'real and meaningful'--may be dismissed in much shorter order.


case_text: As to the appellant's third ground, the appellant argues that the Tribunal failed to undertake a reasonably open and regular administrative procedural step necessary to provide the appellant with a real and meaningful invitation to the hearing, such as seeking to contact the appellant by telephone on the day of the hearing. In making this argument, the appellant relies on the principles set out in SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14. However, that case is inapposite here for the reasons set out below. 62 In SZJBA [2007] FCA 1592 ; 164 FCR 14 , Allsop J said, starting at [53]: On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. ... ... In my view, the inaction of the tribunal for the reasons I have given, amounted to an undermining of the reality and meaningfulness of the invitation to comment that was given purportedly under s 424A or under s 424 or under the general executive power. As such, it was a jurisdictional error in that it undermined the steps in the conduct of the review undertaken pursuant to Pt 7 of the Migration Act , that were required by, or authorised by, the statute or authorised as the conduct of the general executive power under s 61 of the Commonwealth Constitution which had been undertaken by the Tribunal, and, once undertaken, were not to be frustrated by the action or inaction of the Tribunal in circumstances where, as I have said, it was obliged to take basic and simple administrative procedural steps. ... Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power . Division 4 of Pt 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution : see SZFDE 237 ALR 164 at [32], any subversion of the process of the tribunal is a matter of importance: SZFDE [2007] HCA 35 ; 237 ALR 64 at [32] . The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily be accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60] . The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error . [Emphasis added] 63 As the quoted extracts suggest, the Tribunal must, where there is material before it that on its face suggests that an error has occurred or that the Tribunal is not in receipt of all materials responding to the invitation (in SZJBA , the letter stating that a five page document was enclosed but without any such enclosure), take simple administrative steps to address the issue (eg make a phone call or send a letter inquiring as to the potentially missing material). In this appeal, however, the appellant cannot demonstrate that there was any material before the Tribunal that would have put the Tribunal on notice of an error or irregularity in the record which needed to be followed up administratively. 64 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , the Full Court distinguished SZJBA on the basis that that decision was different because in that case 'there was a failure to inquire into readily available and centrally relevant information' (at [29]). Similarly, in my view the factual position confronting Allsop J in SZJBA was very different from that which arises in this appeal, and the failure to inquire cannot be seen on its face to subvert the observance of the Tribunal of its obligation to give procedural fairness.


case_text: First, in order to constitute a well founded fear of persecution, any threat or relevant risk must be current or prospective, rather than historical only: VBAO 231 ALR 54, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. However, it is reasonable that a Tribunal should have regard to events that have occurred, to assist in its decision as to whether it is likely that the claimant will in future be subject to persecution. As Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in Guo 191 CLR at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."


case_text: Under the Migration Act it not the role of the Court to engage in a review of the merits of the appellant's claims or findings on the facts by the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The appellant has claimed before me as a ground of appeal that the learned Federal Magistrate did not consider the issue before his Honour that physical ill-treatment by an officer of the Israeli Special Forces could by itself amount to serious harm. The first respondent submitted that his Honour did deal with this issue at [18] of his Honour's judgment which reads: "It was evident from the Tribunal's decision that it individually assessed each of the Applicant's experiences and considered whether each incident of harm amounted to 'serious harm'. Further it considered the incidents cumulatively and despite that matter was not satisfied that the Applicant's experiences amounted to persecution for a convention reason." 38 On the face of para [18] of his Honour's judgment, contrary to the submission of Ms Wheatley, it is not apparent that his Honour has dealt with the issue whether the physical ill-treatment of the appellant could constitute "serious harm". Indeed a general reference to the individual assessment by the Tribunal of each of the appellant's experiences, and a cumulative consideration by the Tribunal of relevant incidents, does not obviously demonstrate a specific consideration of the issue in question by the Federal Magistrate.


case_text: However as I noted recently in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 , although failure by a court to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281), it is also clear that the ground before his Honour, and raised on appeal before me, was not plainly arguable because no jurisdictional error is apparent from the decision of the Tribunal in relation to this issue. Even if para [18] of his Honour's judgment does not address the issue of physical ill-treatment of the appellant as claimed by the appellant, this is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing because the ground would have no prospects of success.


case_outcome: referred to

case_title: SZINP v Minister for Immigration and Citizenship [2007] FCA 1747


case_outcome: considered

case_title: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1495 ; (2004) 139 FCR 405

case_text: In that case the claimant was a national of Sri Lanka who claimed that, as a result of his political activities in Sri Lanka, he had received numerous threats to his life from members of an opposition political party. The Tribunal had accepted that the claimant had received intimidating and threatening phone calls and letters, but held these phones calls and letters did not involve serious harm to the claimant. The Tribunal upheld the decision of the delegate of the Minister to refuse a visa to the claimant. The claimant applied to the Federal Magistrates Court to have the decision of the Tribunal set aside, wherein the claimant was successful. The Minister then appealed to the Federal Court. In considering s 91R , Marshall J found (his Honour's decision was reported at [2004] FCA 1495 ; (2004) 139 FCR 405) as follows: "(at 410) Counsel (for the claimant) submitted that the Federal Magistrate was correct to conclude that the making of a threat to life is serious harm for the purpose of s 91R(1)(b). Counsel contended that the apprehension attending a threat to life is the type of psychological injury to which the Refugees Convention is directed... ...(at 411) (The RRT) considered that the death threats did not constitute serious harm. In my view this finding was entirely open to the RRT... It could not, in my view, have been the intention of Parliament that threats in the form of declarations of intent, could prima facie constitute serious harm. Even with the qualification to s 91R(2)(a) , which the respondent submits must operate to exclude from its scope, threat which do not have the capacity to instil fear, it is clear that that application of the (claimant's) definition would be productive of anomalous consequences... ... (at 412) Counsel for the respondent contended in written submissions that 'if an applicant fears he or she will lose their life there is no doubt the harm feared would constitute persecution'. That is to elevate the element of fear to an impermissible level. All instances of alleged serious harm have the potential to agitate their victim but this is not the hallmark of their categorisation as instances of serious harm. Rather, serious harm contemplates that a person's livelihood or well-being will be jeopardised in a material way. This is not to deny that threats of the kind directed at the (claimant) can never constitute serious harm, but they do not, of themselves, automatically qualify for that description." 17 Accordingly, his Honour allowed the appeal and re-instated the decision of the Tribunal. 18 On appeal from Marshall J, the High Court considered the meaning of "threat" in s 91R. The findings of their Honours relevant to the proceedings before me include the following: • In summary Gleeson CJ and Kirby J noted (at 545) that: o the word "threat" can mean either a communication of an intention to harm, or a likelihood of harm o section 91R(2)(a) gives, as an instance of serious harm, a threat to the person's life or liberty. The serious harm in question is future harm. Elsewhere in s 91R(2) , the word "threatens" appears three times in a context where it clearly bears the meaning of a likelihood of harm rather than a communication of intention to harm o in s 91R(2)(a) it is clear that "threat" is used in the sense of likelihood of harm. "A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person's life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications." • Gummow J said in summary: o it was clear from para 19 of the Explanatory Memorandum accompanying the Migration Legislation Amendment Act (No 6) 2001 (Cth), which introduced s 91R into the Migration Act , that Parliament intended that the degree of apprehended "harm" feared in the context of claims of persecution should not rise above the level of harm accepted by the parties to the Refugee's Convention as constituting persecution. This is made even more clear by s 91R(1)(b) and (c) (at 547-548) o the notion of "serious harm" for the purposes of s 91R(1)(b) is "given further treatment in s 91R(2)" (at 548), which states instances of serious harm for the purpose of s 91R(1)(b) o Counsel for the claimant had urged a reading of s 91R(2)(a) which included a past or current communication of an intention to kill or deprive a person of liberty which, considered objectively, was capable of instilling fear in the person and does so. However the six paragraphs of s 91R(2) should be considered together, taking their colour from the specification of "serious harm" in the opening words of the subsection. His Honour observed: "This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty" (at 549) o a "threat" in such circumstances may be an indication of evil to come, but may not have been based upon any direct statement to that person by any official source (at 549). • In summary, Callinan and Heydon JJ held: o section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances. If any threat or relevant risk is not current or prospective, there can be no well founded fear of persecution (at 555) o neither the Refugees Convention nor s 91R of the Migration Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite well founded fear (at 555). 19 Accordingly, their Honours dismissed the appeal. 21 In these proceedings the appellant submits that verbal threats, if they are likely to be repeated in the future, are capable, in themselves, of amounting to serious harm for the purposes of s 91(1)(b) depending on the circumstances of the case. In particular, Mr Rangiah for the appellant submitted that: • the Tribunal accepted that on three separate occasions in 2001, 2002 and 2004 the appellant was detained and threatened by members of the Israeli Special Forces, including verbal threats to the effect that if remained in Israel he would "get a bullet in his head", and the physical threat of having a gun pointed at him • even if, as the Tribunal found, the Israeli Special Forces did not intend to carry out the threat to shoot him if he remained in Israel, there remained the distinct possibility that similar threats would be made in the future. In this case, however the Tribunal did not consider whether such threats were likely to be made in the future and did not consider whether such threats could, by themselves, amount to "serious harm" • the making of threats in the future, which are designed to intimidate and frighten and do have that effect, can amount to serious harm within s 91(2)(b). Threats such as pointing a gun and indicating that the person will be shot unless he or she complies with a demand are capable of inflicting serious psychological harm • in VBAO 231 ALR 54 the High Court did not directly consider the broader issue of whether threats can, in some circumstances, amount to "serious harm" within s 91R(1)(b) • section 91R(2) merely provides instances of conduct which may constitute "serious harm" • Marshall J in VBAO [2004] FCA 1495 ; 139 FCR 405 accepted that verbal threats directed at the respondent can in some cases constitute serious harm, although they do not, of themselves, automatically qualify for that description. The High Court approved the judgment of Marshall J.


case_text: The leading case considering the term "threat to person's life or liberty" in s 91R is the High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 54. Both Counsel in the proceedings before me addressed issues arising from this case in considerable detail. 20 The key issue arising in respect of grounds 1 and 2 in these proceedings concerns the meaning of "threats" in the context of "serious harm" in s 91R Migration Act . As is clear from perusal of s 91R , Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution unless the persecution involves serious harm to the person: s 91R(1)(b). Without limiting the meaning of "serious harm" in the context of s 91R(1)(b) , s 91(2) gives examples of "serious harm", including "a threat to the person's life or liberty" (s 91R(2)(a)). Further, it is clear from the decision of the High Court in VBAO 231 ALR 54 that, as a general proposition, verbal threats will not of themselves constitute serious harm within the meaning of s 91R. 21 In these proceedings the appellant submits that verbal threats, if they are likely to be repeated in the future, are capable, in themselves, of amounting to serious harm for the purposes of s 91(1)(b) depending on the circumstances of the case. In particular, Mr Rangiah for the appellant submitted that: • the Tribunal accepted that on three separate occasions in 2001, 2002 and 2004 the appellant was detained and threatened by members of the Israeli Special Forces, including verbal threats to the effect that if remained in Israel he would "get a bullet in his head", and the physical threat of having a gun pointed at him • even if, as the Tribunal found, the Israeli Special Forces did not intend to carry out the threat to shoot him if he remained in Israel, there remained the distinct possibility that similar threats would be made in the future. In this case, however the Tribunal did not consider whether such threats were likely to be made in the future and did not consider whether such threats could, by themselves, amount to "serious harm" • the making of threats in the future, which are designed to intimidate and frighten and do have that effect, can amount to serious harm within s 91(2)(b). Threats such as pointing a gun and indicating that the person will be shot unless he or she complies with a demand are capable of inflicting serious psychological harm • in VBAO 231 ALR 54 the High Court did not directly consider the broader issue of whether threats can, in some circumstances, amount to "serious harm" within s 91R(1)(b) • section 91R(2) merely provides instances of conduct which may constitute "serious harm" • Marshall J in VBAO [2004] FCA 1495 ; 139 FCR 405 accepted that verbal threats directed at the respondent can in some cases constitute serious harm, although they do not, of themselves, automatically qualify for that description. The High Court approved the judgment of Marshall J. 24 First, in order to constitute a well founded fear of persecution, any threat or relevant risk must be current or prospective, rather than historical only: VBAO 231 ALR 54, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. However, it is reasonable that a Tribunal should have regard to events that have occurred, to assist in its decision as to whether it is likely that the claimant will in future be subject to persecution. As Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in Guo 191 CLR at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events." 26 Third, it is clear from VBAO 231 ALR 54 that verbal communication of threats without more does not constitute "serious harm" within the meaning of s 91R(1) or s 91R(2) Migration Act . Mr Rangiah submitted that threats such as pointing a gun at a person's head and indicating verbally that the person will be shot unless he or she complies with a demand can constitute "serious harm". However the Tribunal in its decision thoroughly reviewed the incident including where a gun had been pointed at the appellant and verbal threats made, and considered that this did not constitute serious harm. As I have already said, the High Court in VBAO 231 ALR 54 has held that verbal threats, without more , do not constitute "threats" amounting to serious harm for the purposes of s 91R. It is useful to compare the facts of this case with those in VBAO 231 ALR 54, where the claimant had not only been verbally threatened but also had claimed to have been beaten and had his hair cut by rival political groups, but the court declined to quash the decision of the Tribunal that "serious harm" had not been caused to the claimant. In these proceedings the Tribunal considered the evidence of additional events upon which the appellant relied, but was not satisfied that "serious harm" had been or would be occasioned. This finding was open to the Tribunal on the facts before it. 27 Fourth, although Mr Rangiah also submitted that a series of threats designed to intimidate and frighten could cause serious psychological harm, which would itself be "serious harm", it is for the appellant to make the case of well founded fear of persecution before the Tribunal. On the material before me there appeared to be no evidence that the appellant had sustained such serious psychological harm or would sustain such harm if he returned to Israel. 28 Finally, and notwithstanding Mr Rangiah's persuasive arguments, I am satisfied that the High Court's findings in relation to the meaning of the word "threat" as an instance of serious harm in s 91R(2)(a) Migration Act extend to the concept of threat as "serious harm" within s 91R(1)(b). I do not consider that a "threat" as a species of serious harm for the purposes of s 91R(1)(b) is, for example, of potentially broader application in that section in comparison with its meaning in s 91R(2)(a). The section makes it plain that, in considering serious harm within the meaning of s 91R(1)(b) , while not limiting what is serious harm for the purposes of para (1)(b), regard should be had to the specific instances in s 91R(2). In my view, the findings of the High Court's in VBAO 231 ALR 54 in relation to the meaning of "threat", while specifically referable to s 91R(2(a) , are equally applicable to any concept of "threat" as "serious harm" within the meaning of s 91R(1)(b). To find otherwise would, in my view, ignore the plain meaning of s 91R , the fact that categories in s 91R(2) are clearly meant to assist in the interpretation of s 91R(1)(b) , and the clear findings of their Honours' in VBAO 231 ALR 54. 29 It follows that in my view no jurisdictional error in this respect is apparent from the decision of the Tribunal. 30 The Federal Magistrate similarly found that no jurisdictional error appeared from the decision of the Tribunal, because the Tribunal had applied the correct test in this case in relation to whether verbal threats could constitute "serious harm" within s 91R. In making this finding, his Honour relied on VBAO 231 ALR 54 and the Federal Court decision in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212. His Honour did not, as claimed by the appellant, decide that threats of disappearance and death could not, by themselves, amount to "serious harm". His Honour's findings were limited to the case before him (in particular at [27]-[30]). I find no error in either his Honour's approach or decision in relation to this issue.


case_text: The Federal Magistrate similarly found that no jurisdictional error appeared from the decision of the Tribunal, because the Tribunal had applied the correct test in this case in relation to whether verbal threats could constitute "serious harm" within s 91R. In making this finding, his Honour relied on VBAO 231 ALR 54 and the Federal Court decision in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212. His Honour did not, as claimed by the appellant, decide that threats of disappearance and death could not, by themselves, amount to "serious harm". His Honour's findings were limited to the case before him (in particular at [27]-[30]). I find no error in either his Honour's approach or decision in relation to this issue.


case_title: Applicant NADB of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 326 ; (2002) 126 FCR 453

case_text: It has been held that Art 1F(b) of the Convention is not to be construed under the influence of the character test in s 501(6) of the Act , and that Art 1F is an independent exclusion of the application of the Convention provisions: see Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 ; (2002) 126 FCR 453 at [42] per Merkel J with whom Madgwick and Conti JJ agreed, and at first instance, NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293 at [46] and [47] per Hely J.


case_title: NADB v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 293


case_text: It is submitted by United Collieries that use of the phrase 'the action' in s 478(1)(d) refers to a specific instance of industrial action. The phrase is in the singular and the noun 'action' is governed by the definite article. It is used in contradistinction with the more general phrase 'industrial action'. It is submitted that this construction is assisted by consideration of s 441 dealing with the notification of industrial action. The phrase in that section 'the action' relates clearly to particular instances of industrial action rather than a general description. Reference was made to a passage from Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463, per Wilcox and Cooper JJ with whom Burchett J agreed (at [85]): 'The subsection does not use the term "industrial action". Rather it uses the definite article, in speaking of " the intended action". It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition.' It is submitted that the same meaning should be attached to similar phrases in sections which appear in the same Part of the Act. It is submitted that ss 438 , 444 and 447 provide other examples where Parliament used the phrase 'the action' to refer to a specific instance of industrial action. Reference is also made to the definite article in s 452(1)(a) to make a similar point. 18 United Collieries also submits that the ability to extend the 30 day period referred to in s 478(1)(d) provides further support to its interpretation of the section (see s 478(3) and s 478(4)). It is submitted that, if the Union's interpretation of s 478(1)(d) is correct, s 478(3) and s 478(4) will have little utility. Support is also claimed from the examples of protected action ballots contained at the end of s 434. 19 United Collieries refers to the Explanatory Memorandum, the relevant portion of which was as follows: 'This section would establish that the object of a new Division is to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken. The provisions are designed to be faciltative (i.e. to provide the means for accessing protected action) not prohibitive (i.e. to outline the circumstances in which such action is not available).' 23 United Collieries attempted to outflank this obvious difficulty by accepting that there could be a predetermined, but specific, series of actions on particular dates or at particular times extending beyond the 30 day period. I can see no distinction in principle between employees authorising 24 hour stoppages after the 30 day period on predetermined days (accepted to be valid), compared with 24 hour stoppages after the 30 day period at times to be determined as the bargaining unfolds. As pointed out in Davids Distribution Pty Ltd v National Union of Workers (at [84]): 'Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party ... and changing circumstances.' There is some substance to the Union's contention that the construction favoured by United Collieries might drive more draconian mandatory industrial action than might otherwise be the case. 24 The gravamen of United Collieries' complaint is that, as the description of industrial action specified in each of the relevant questions on the ballot leaves open when industrial action should take place, Union officials will be given a role which is not provided by the legislation and which is inconsistent with the facilitation of decision making by the employees actually affected. The exclusion of Union officials from the process in that way is not spelled out in the legislation or in the extrinsic material. If the affected employees vote in favour of a form of industrial action which gives a discretion to Union officials, then industrial democracy has worked with that result. 25 The Act contemplates that negotiations during the bargaining period will be a power struggle with no holds barred, within limits. The secret ballot provisions are not intended to alter the balance of power in favour of employers against employees. They are to assist in ensuring that power is exercised by the affected employees. 27 I do not regard the decision or the reasoning in Davids Distribution Pty Ltd v National Union of Workers to be contrary to this conclusion. The particular question in that case concerned the provisions of another division of Pt 9 of the Act with a different focus to s 478 . The same may be said of the other examples given by United Collieries. The object of the Division and the passage referred to in the Explanatory Memorandum do not point to any different conclusion. 28 It follows that the action described in each of questions 1, 2 and 5 was commenced in the 30 day period beginning on the date of the declaration of the results of the ballot. The continuation of that action during the bargaining period is not prohibited by s 478(1)(d). The application must therefore be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 14 July 2006 Counsel for the Applicant: Mr PM Kite SC Solicitor for the Applicant: Freehills Counsel for the Respondent: Mr SC Crawshaw SC with Mr AM Slevin Solicitor for the Respondent: Construction, Forestry, Mining and Energy Union Date of Hearing: 6 July 2006 Date of Judgment: 14 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/904.html


case_text: Australian Securities & Investments Commission v Citigroup Global Markets Australia Pty Ltd (No. 3) [2007] FCA 393 , Jacobson J found that he was not satisfied that the contribution of a group which he described as a ' lobby group ', namely the Australian Financial Markets Association ('AFMA'), would contribute to the proceedings in a way which was ' useful or different from the contributions of the parties ' (see [12]). His Honour observed that the parties were well represented by substantial teams of legal counsel. He also observed at [13] that the applicant in those proceedings, ASIC, would not ' be influenced by tactical or forensic considerations which would be necessary to be off-set by submissions made by AFMA '. The submissions sought to be relied upon by the IIA regurgitate in substance the submissions provided by iiNet which deal, in significant detail, with the subject matters concerning the safe harbour provisions; s 112E of the Copyright Act ; and the concept of copyright authorisation considered in the context of the AFACT notices. The submissions of iiNet have also dealt with the practical and cost consequences of an ISP being required to comply with the demands of the AFACT notices. Further, the provisions of the Telecommunications Act 1997 (Cth) and their interaction with the Copyright Act have also been the subject of extensive submissions from iiNet. Indeed, the industry, detail and comprehensiveness of iiNet's closing submissions, stretching for more than 260 pages, eclipse the brief submissions of the IIA even on the specific matters with which the IIA wishes to address the Court.


case_title: Breen v Williams (1994) 35 NSWLR 522

case_text: IIA has referred the Court to several authorities in support of its submissions. IceTV Pty Limited & Anor v Nine Network Australia Pty Limited [2008] HCATrans 356 was one, wherein the High Court of Australia granted leave to interveners on the ground that the Court ' may be assisted ' by them (per French CJ). Reliance is also placed upon the decision of Kirby P in Breen v Williams (1994) 35 NSWLR 522 at 533 in which the President said: The courts should not turn a blind eye or a deaf ear to the assistance that they might receive from amicus curiae on matters of principle in test cases. Had there been a subject matter contained in the submissions of the IIA which had not been the subject of submissions from iiNet, the Court would have adopted the approach taken by Kirby P in Breen . However, the Court is satisfied that the matters sought to be advanced before this Court by the IIA do not add any material to that which has already been provided to the Court. That is, there is no subject matter of the proposed submissions which has been omitted by iiNet, nor which could be usefully supplemented by the matters contained in those proposed submissions. The Court has been fully assisted by both iiNet and by the applicants in respect of the issues which are the subject of the IIA's proposed submissions. The mere fact that the IIA is not iiNet and thus claims to bring a 'broader perspective' does not render its submissions ' different and useful '. Much of the IIA's submissions in favour of its intervention appear to relate to its involvement in the process of the creation of legislation that is at issue before this Court. However, that involvement is only relevant to the extent that it means that the IIA can provide actual insight as to the interpretation of legislation which iiNet cannot. It does not grant the IIA some kind of preferred status as interpreter of the legislature's will. As the applicants have rightly submitted, it does not matter who says something, it matters what is said and, as has already been stated, the IIA has not proffered anything materially different to iiNet. If the IIA intended by its application for intervention to bring to the Court's attention the importance of its decision in these proceedings, it can take such fact as noted. The Court is, and always has been, well aware of the ramifications of the outcome of its decision for ISPs, rights holders, and the development of the internet more broadly.


case_title: IceTV Pty Limited & Anor v Nine Network Australia Pty Limited [2008] HCA Trans 356

case_text: IIA has referred the Court to several authorities in support of its submissions. IceTV Pty Limited & Anor v Nine Network Australia Pty Limited [2008] HCATrans 356 was one, wherein the High Court of Australia granted leave to interveners on the ground that the Court ' may be assisted ' by them (per French CJ). Reliance is also placed upon the decision of Kirby P in Breen v Williams (1994) 35 NSWLR 522 at 533 in which the President said: The courts should not turn a blind eye or a deaf ear to the assistance that they might receive from amicus curiae on matters of principle in test cases. The Court acknowledges that the fact that the IIA could not be considered impartial is irrelevant. Equally, it is irrelevant that the IIA happens to have a perspective which is aligned with one of the parties and not the other. As much is clear from the High Court allowing Telstra and the Australian Digital Alliance to act as amicus in IceTV . Therefore, the only relevant consideration is whether the IIA's submissions are ' useful and different ' from that which the Court already has before it.


case_title: Sharman Networks Limited and Others v Universal Music Australia Pty Limited and Others [2006] FCAFC 178 ; (2006) 155 FCR 291

case_text: IIA has also submitted that it was acknowledged in the Revised Explanatory Memorandum to the Copyright Amendment (Digital Agenda) Bill 1999 (Cth) as being an important contributor to the formulation of that Bill which became the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Such Act inserted into the Copyright Act , among other things, s 112E which is an important provision under consideration in these proceedings. In short, the IIA submits that it is ' in a position to advance useful submissions in the public interest on the proper construction of certain provisions of the Copyright Act ' (see Sharman Networks Ltd and Others v Universal Music Australia Pty Limited and Others [2006] FCAFC 178 ; (2006) 155 FCR 291 at [14] .) It appears from the submissions dated 11 November 2009 that the IIA's final submissions are primarily directed towards four aspects of the proceedings before the Court: the interpretation of s 112E of the Copyright Act ; what effect (if any) the AFACT notices should have on an internet service provider's ('ISP') liability for copyright infringement; whether such notices should lead to the termination and/or suspension of customer accounts; and the correct interpretation of the safe harbour provisions. The IIA emphasises that it does not seek to interfere in the conduct of the proceedings and that because of the limited intervention it seeks it would not disrupt the conduct of the proceedings. It states that should the leave to intervene be granted, it would not seek to make any further oral and written submissions than those already before the Court.


case_outcome: applied

case_text: The starting point is that, in the ordinary course, all issues of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Bathox Australia Pty Ltd v PJ SAS Trading Pty Ltd [2004] FCA 1082 ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495.


case_text: The Court has found that it may be appropriate to hear a preliminary issue where there is a 'crisp and clear demurrer point': Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254. Alternatively, the Court may decide to hear a question separately if there is a narrow point raised on the preliminary issue, and it has the potential to dispose of a significant part of the litigation if decided in one way: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported ) ; see also Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 . In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, Kirby P expressed the view: 'A matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.' 26 In Reading Australia supra, Branson J summarised the relevant principles governing the exercise of the Court's discretion under O 29 r 2, identifying the following factors as being relevant to that discretion: '(a) [T] he term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an "issue" and a "question" is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an "issue", and less decisive matters of dispute being "questions" ( Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647); (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ( Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647); (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ( Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45] ); (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ( Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1969] UKHL 3 ; [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]); (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 per Kirby P at 606); (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ( CBS Productions Pty Ltd v O'Neill per Kirby P at 607); (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (ii) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ( GMB Research & Development Pty Ltd v The Commonwealth [1997] FCA 934) ; (iii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ( GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iv) prolong rather than shorten the litigation ( GMB Research & Development Pty Ltd v The Commonwealth ).'


case_text: The Court's discretion under O 29 r 2 should be exercised with caution: Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328. For the Court to depart from the ordinary course, the party seeking the separate determination of the issues must satisfy the Court that it would be 'just and convenient' for the order to be made: Reading Australia , supra. The test is 'the practical one of utility, efficiency and convenience in the administration of justice' : Chippendale Printing , supra.


case_text: The Court has found that it may be appropriate to hear a preliminary issue where there is a 'crisp and clear demurrer point': Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254. Alternatively, the Court may decide to hear a question separately if there is a narrow point raised on the preliminary issue, and it has the potential to dispose of a significant part of the litigation if decided in one way: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported ) ; see also Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 . In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, Kirby P expressed the view: 'A matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.'


case_text: In Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 , Stone J said at [7]: 'In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end. Examples are where there is a strong prospect that once the core of their dispute is decided, the parties will settle the remaining issues or where the decision will obviate an unnecessary and expensive hearing of other questions. Such situations must, however, be carefully controlled lest fragmentation of the proceedings should bring delay, expense and hardship, which the making of the order was intended to avoid.' 28 Diageo submits that the order sought should be made for the following reasons: (a) It is clear that the issues in the main proceeding will require voluminous discovery and extensive evidence. (b) There is nothing at this stage which indicates that there will be any commonality of evidence or witnesses (other than in relation to the issues of ownership of the Cross-Claim Trade Marks) that would make it convenient to hear both the Cross-Claim and the Amended Statement of Claim together. Diageo submits that the determining of the Cross-Claim prior to the Amended Statement of Claim may in fact avoid the costs and inconvenience of a hearing on the Amended Statement of Claim, if the Cross-Claim is determined in the cross-claimants' favour. Diageo is unlikely to recover all of its costs in this case and will have expended a considerable amount of time as well as money. (c) There is no prejudice to the cross-claimants if the orders are made and it may assist the cross-claimants in having their claims heard earlier. (d) There does not appear to be any prejudice to SPI Spirits and Spirits International other than a delay in payment of any damages that might be awarded, a prejudice that will be compensated by payment of interest. The Distribution Agreement has come to an end, Diageo is no longer distributing Diageo Stolichnaya Vodka, and SPI Spirits has entered into an agreement with another company for the distribution of its vodka in Australia. (e) The determination of such a decisive issue is likely to be a major factor to both SPI Spirits and Diageo in considering settlement. (f) As stated above, the main proceeding has not progressed at all beyond a defence and reply and is now back to the beginning with the proposed filing of an Amended Application and Amended Statement of Claim which significantly alter the overall case against Diageo. The conduct which is the subject of the main proceeding has either concluded or, in the case of the Ruski Claims, commenced in April 2004 and no interlocutory injunction has been sought. (g) Resolution of the issue of ownership of the marks is likely to contribute to settlement. 29 Finally, Diageo submits that there is an important issue of case management to be considered, not merely in relation to the inconvenience to Diageo if all claims in the proceeding are heard together. There is also the convenience of the Court. Not only might hearing time be reduced, both for the trial and any interlocutory disputes, but there would be considerable benefits for the trial judge. If all claims are heard together, the trial judge, in writing his or her judgment, may consider it necessary to determine the ownership issue first. If the ownership issue is determined in favour of the cross-claimants, the trial judge is likely to feel obliged to determine all the remaining issues on the Amended Statement of Claim. If the issue of ownership of the Cross-Claim Trade Marks is fundamental to the Amended Statement of Claim, then both the Court's and the parties' resources may have been unnecessarily wasted. 30 In order to minimise any prejudice to SPI Spirits and Spirits International, Diageo offered to make the following undertakings if the orders are made: (a) Not to destroy any documents relevant to the issues raised by the Amended Statement of Claim (yet to be filed); (b) to maintain comprehensive sales records relating to Ruski; (c) to agree to be bound by the final determination of the Court of the Amended Cross-Claim. 31 SPI Spirits and Spirits International submitted that determination of the Cross-Claim will not, for the reasons outlined above, likely dispose of or substantially narrow the issues arising in the Amended Statement of Claim. Even if the Cross-Claim is determined adversely to Spirits International, SPI Spirits and Spirits International will be entitled to pursue their claims against Diageo in contract and under ss 52 , 53 and 55 of the TPA.


case_title: Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141


case_text: The starting point is that, in the ordinary course, all issues of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Bathox Australia Pty Ltd v PJ SAS Trading Pty Ltd [2004] FCA 1082 ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495. 24 The Court's discretion under O 29 r 2 should be exercised with caution: Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328. For the Court to depart from the ordinary course, the party seeking the separate determination of the issues must satisfy the Court that it would be 'just and convenient' for the order to be made: Reading Australia , supra. The test is 'the practical one of utility, efficiency and convenience in the administration of justice' : Chippendale Printing , supra. 26 In Reading Australia supra, Branson J summarised the relevant principles governing the exercise of the Court's discretion under O 29 r 2, identifying the following factors as being relevant to that discretion: '(a) [T] he term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an "issue" and a "question" is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an "issue", and less decisive matters of dispute being "questions" ( Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647); (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ( Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647); (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ( Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45] ); (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ( Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1969] UKHL 3 ; [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]); (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 per Kirby P at 606); (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ( CBS Productions Pty Ltd v O'Neill per Kirby P at 607); (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (ii) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ( GMB Research & Development Pty Ltd v The Commonwealth [1997] FCA 934) ; (iii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ( GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iv) prolong rather than shorten the litigation ( GMB Research & Development Pty Ltd v The Commonwealth ).'


case_title: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130


case_title: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported )