case_text: is a further reason why the application under s 46PO(2) for an extension of time would not amount to representative proceedings. That is because s 33C(1)(c) requires that the claims of all of the group members give rise to a substantial common issue of fact or law. "Substantial" in s 33C(1)(c) means "real or of substance": Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 at 267 [28] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. There is no evidence that the personal circumstances of Mr and Mrs Wotton, or the reasons why they did not make their application (even as a representative proceeding) within 28 days of 12 September 2007 or now seek an allowance of further time to do so, involve any, let alone, substantial, common issue of fact or law that applies to all other group members. The only issues in this matter under s 33C(1)(c) would be factual ones going to why the further time was required. I am not satisfied any substantial common question of fact or law exists so as to satisfy s 33C(1)(c) that the present application to allow further time could be a proceeding under Pt IVA. It has not been argued or suggested that further time could have been allowed because of the late discovery of a factual or legal ground.


case_outcome: cited

case_text: 1 March 2007, shortly before his trial was to commence Mr Wotton lodged a complaint with the Human Rights and Equal Opportunity Commission (as the Australian Human Rights Commission was then called). The complaint alleged, among other matters, that the arrest, charging and prosecution of Mr Wotton contravened or would contravene the Racial Discrimination Act 1975 (Cth). Mr Wotton sought an ex parte injunction under s 46PP of the Human Rights and Equal Opportunity Commission Act to restrain the holding of his criminal trial: Wotton v State of Queensland [2007] FCA 280. Those proceedings purported to be instituted as representative proceedings under Pt IVA of the Federal Court of Australia Act . In refusing the ex parte relief, Moore J noted that there had been considerable delay in the lodging of the complaint with the Commission: Wotton [2007] FCA 280 at [3] - [5] . His Honour said that he would express no view about whether those proceedings could have been brought as representative proceedings. Subsequently, at his trial Mr Wotton was convicted and sentenced to a term of imprisonment. The complaint had been lodged with the Commission on 1 March 2007 by Mr Wotton's solicitors, Messrs Levitt Robinson. It purported to have been made on behalf of Mr Wotton, his co-accused and "all the black residents of Palm Island who were residents of the place on and between 18 and 28 November 2004". The solicitors later supplemented the complaint with further submissions. The Commission accepted the complaint as being a representative complaint made on behalf of class members other than the unnamed co-accused. The complaint was made against the State of Queensland, including the Queensland Police Service, the Office of the Director of Public Prosecutions and the Queensland Court of Appeal. It is not necessary to outline any matter in relation to the Queensland Court of Appeal since nothing was raised in the present proceedings in respect of that court. Some allegations made by Mr Wotton to the Commission were, subsequently, withdrawn by him. On 12 September 2007, the then President, the Hon John von Doussa QC, signed a notice of termination pursuant to s 46PH(2) of the Act on the grounds that he was satisfied that some aspects of the complaint were lacking in substance and or misconceived, in relation to one aspect of the complaint, some other more appropriate remedy was reasonably available to each of the complainants and the subject matter of one aspect of the complaint had been dealt with adequately by another statutory authority. He terminated the complaints against the Office of the Director of Public Prosecutions and the Queensland Court of Appeal on the basis that he was satisfied that those complaints were respectively lacking in substance and misconceived.


case_outcome: referred to

case_text: Mr Bodenstein complained that the Tribunal should have deferred its consideration of the matter until the determination of the Supreme Court proceedings. No doubt it could have done so. However a failure by it so to do discloses no error, still less jurisdictional error. There may, of course, be circumstances in which a failure to adjourn may result in a breach of s 357A(3) of a kind analogous to a denial of procedural fairness: cf Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 at 365 per Hely J. However, no such issue arises here. The appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 6 February 2009 The first appellant appeared in person. Solicitor for the First Respondent: Mr A Markus of the Australian Government Solicitor Date of Hearing: 28 October 2008 Date of Judgment: 6 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/50.html


case_outcome: affirmed

case_text: This is an appeal from a decision of the Federal Magistrates Court given on 20 May 2008: Bodenstein v Minister for Immigration [2008] FMCA 630. That Court rejected the appellants' application for orders setting aside a decision of the Migration Review Tribunal ("the Tribunal") handed down on 1 August 2007. The Tribunal had affirmed a prior decision by the Minister for Immigration and Citizenship ("the Minister") not to grant the present appellants' application for visas. In my opinion, the appeal should be dismissed with costs. Facts The appellants, whom without any disrespect I shall refer to as the Bodensteins, are Israeli nationals and are a family. Mr Bodenstein arrived in Australia on 2 September 2003. On the same day he lodged an application for a "Temporary Business Entry (Class UC)" visa. That class of visa permits a non-citizen with skills needed by Australian businesses to enter and work temporarily in Australia. The letters "UC" are not an acronym and have no special meaning other than as a class designator. The class UC visa may be granted for a period of up to three months, in which case it is called a Subclass 456 (Business (Short Stay)) visa. Alternatively, it may be granted to permit a stay of more than three months but less than four years, in which case it is called a Subclass 457 (Business (Long Stay)) visa. Mr Bodenstein, and his family as dependents, applied for the Subclass 457 (Business (Long Stay)) visa. The power of the Minister to grant a visa is conferred by s 65 of the Migration Act 1958 (Cth) ("the Act"). It provides: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.


case_outcome: considered

case_title: Dietrich v The Queen (1992) 177 CLR 292

case_text: the requirements of procedural fairness (or, as it was formerly known, natural justice) required the Bodensteins to be given an opportunity to put their case to the federal magistrate. That opportunity was afforded to them. Although it has been held that in certain circumstances a serious criminal proceeding may be stayed if an accused person is not afforded legal representation, it is apparent that that power is a manifestation of the Court's power to stay an unfair criminal trial: Dietrich v The Queen (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 361-362 per Toohey J, 365 per Gaudron J. However, Dietrich is not concerned with civil proceedings. More importantly, it has been held that the rules of procedural fairness in civil proceedings do not extend to requiring the provision of legal representation: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330-331 per Mason CJ, Dawson, Toohey and McHugh JJ; cf Rivera v United States of America [2004] FCAFC 154 at [26] - [28] per Heerey, Sundberg and Crennan JJ.


case_text: even if that were not so, Mr Bodenstein has shown no error in the way the federal magistrate dealt with the application for referral. Although I express no concluded view on the matter, it is likely that an attack on the exercise of the power in r 12.03 would need to comply with the principles enunciated in House v The King [1936] HCA 40 ; (1936) 55 CLR 499. In particular it would be necessary to show that the federal magistrate approached the exercise of the power on an erroneous basis or took into account some extraneous consideration or failed to take into account some essential matter. This ground must be rejected. Mr Bodenstein's second complaint about the Federal Magistrates Court was that it had exceeded its jurisdiction. In essence his point was that by permitting the Tribunal's decision not to grant the visas to stand, the federal magistrate was effectively pre-emptorily terminating the Supreme Court proceedings because without Mr Bodenstein here to prosecute them they would inevitably be dismissed. I would accept that, generally speaking, the Federal Magistrates Court has no power to dismiss Supreme Court proceedings. However, that is not what the federal magistrate did. Both before and after his decision those proceedings remained on foot. A variant of this argument was that the federal magistrate's decision undermined the exercise by the Supreme Court of its jurisdiction. There may well be some circumstances where the removal of a litigant from the jurisdiction might be a contempt of the court seized with the litigation. However, the removal of an alien by force of federal law could never be a contempt of purely state court proceedings. This ground too must therefore be rejected. The grounds relating to the Tribunal


case_title: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309


case_title: Rivera v United States of America [2004] FCAFC 154


case_title: YAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471

case_text: In dealing with the s 424A(1) point, the Federal Magistrate, (citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , which was approved by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609) , held that the Tribunal was not obliged to provide the particular information to the appellant because the information related to the Tribunal's thought processes, and therefore did not attract the operation of s 424A(1). In addressing the appellant's claim that this information related to him personally and was significant, his Honour stated: "The findings in respect of which the Applicant says he should have been informed were general findings not specific to him personally. The circumstances of the White Eagles political movement was plainly a matter of general import, not one wholly specific to him. Although the Applicant claimed to be a leader of the group in Hashuri, nonetheless this was plainly information about a class of persons and not information solely limited to the Applicant himself."


case_title: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609


case_outcome: applied

case_text: The circumstances which a Court must consider when asked to grant leave have been set out in Allanson v Midland Credit Ltd (1977) 16 ALR 43. In that Full Court decision their Honours observed at 48 that if the issues involved would be better and more comprehensively dealt with in a contested trial of the action in the Supreme Court than if a creditor was required to lodge a proof of debt, a grant of leave should follow. 11 The issues as outlined in the Statement of Claim and in the proposed Amended Statement of Claim establish that there are complex factual issues to be determined which, it is apparent, could be determined more effectively in the Supreme Court proceedings.


case_text: The words ' in respect of' which appear in s 58(3)(b) have been considered judicially: see for example Re McMaster; ex parte McMaster (1991) 33 FCR 70 at 72 and in Trustees Executors and Agency Company Ltd v Reilly [1941] ALR 105 at 106. Such authorities refer to the wide scope of the words ' in respect of' as contained in the relevant subsection. The Court is satisfied that for the purposes of s 58(3)(b) of the Act the claim the subject of the Supreme Court proceedings falls within the purview of s 82 and that the Supreme Court proceedings are in respect of a provable debt. As such this is a proper case for an application for leave under s 58(3)(b) of the Act.


case_outcome: followed

case_text: As the Supreme Court proceedings were last before that Court for directions on 29 August 2007, an order is sought for leave to be granted effective from that date. The power of the Court to grant leave pursuant to s 58(3)(b) of the Act includes the power to grant such leave nunc pro tunc : see Re Veghelyi; Smith and Others v Official Trustee in Bankruptcy (1993) 45 FCR 413 at 417. 13 Accordingly the Court considers that the orders sought by Ms Marie Ashdown should be made forthwith and the Court makes the orders as set out above. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy . Associate: Dated: 5 September 2007 Counsel for the Applicant: A. McInerney Solicitor for the Applicant: Lee & Lyons Lawyers Solicitor for the Second Respondent: D. A. Jabbour Date of Hearing: 5 September 2007 Date of Judgment: 5 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1399.html


case_title: Trustees Executors and Agency Company Ltd v Reilly [1941] ALR 105


case_text: Earlier on 25 August 2004, a complaint had been lodged with HREOC by the present applicant Mr Jeremy Jones, in his capacity as President of the said Executive Council of Australian Jewry. Contained within that letter of complaint was the following: 'We write to lodge a formal complaint under the anti-racial-hatred provisions (Part IIA) of the Racial Discrimination Act 1975 (Cth) in respect of material published on the Australian website http://www.biblebelievers.org.au ("The website"). The Executive Council of Australian Jewry, the peak representative organisation of the Australian Jewish community, complains that: (i) the material on the website is reasonably likely in all the circumstances to offend, insult, humiliate and intimidate Jewish Australians; and (ii) one of the reasons that the material has been published is the race or national or ethnic origin of Jewish people, including Jewish Australians. The specific matters complained of are as follows: 1. At http://www.biblebelievers.org.au/nl242.htm under the heading Lies and the First Anniversary of the 9/11 Conspiracy where the following words appear: We have all seen how the holocaust hoax of six-million Jews claimed to have been gassed and cremated by Germany in World War I failed to deceive the mob in 1919. Whereas monopolistic control of the media, film, and a more boldly pursued holocaust hoax of six-million Jews claimed gassed and cremated by Germany in World War II has produced such powerful psychological and material results the entire world is enslaved to the beneficiaries of the lie and Temples of Equivocation affront the intelligence of humanity in major cities world-wide. 2. At http://www.biblebelievers.org.au/wasthere.htm the following words appear: The Holocaust has become the greatest instrument of sympathy which any nation has ever been able to use to gain support for wars, expansion and foreign-aid: This has made Israel the world's sixth strongest military power. The gravest threat to all this wealth and influence is the growing doubt over the question of whether or not a real holocaust of 6 million Jews actually took place. 3. At the " wasthere.htm " webpage the following words appear at the conclusion: The main theme of Jewish fund-raising is the holocaust and has been for 38 years. When they don't use the holocaust the money collection sharply drops off. Thus the more the Press, TV and Hollywood promotes the holocaust the more money the United Jewish Appeal and other Zionist funds can extract from gullible people... Jewish leaders have discovered that by repeating holocaust stories over and over again they can instil a guilt complex within all Gentiles. This effectively silences most critics of Zionist political goals... Why doesn't the Jew-controlled press, TV and film industry give massive media attention to real victims and to proven holocausts of Gentiles in recent history. ... In our submission, the above material breaches the provisions of Part IIA of the Racial Discrimination Act because it conveys the following imputations: (a) there is serious doubt that the Holocaust occurred; (b) it is unlikely that there were homicidal gas chambers at Auschwitz; (c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and (d) some Jewish people, for improper purposes, including financial gain, exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. ... In this respect, we refer you to the case of Toben v Jones [2003] FCAFC 137 in which the Full Court of the Federal Court upheld the decision of Branson J at first instance that it is unlawful under Part IIA of the Act to publish material that conveys inter alia the imputations particularised above. In our submission the material complained of conveys further imputations that are also in breach of Part IIA of the Act, namely that: (a) Jews as a group are inherently malevolent towards other people; (b) Jews as a group are engaged in a global conspiracy to dominate other people; and (c) the State of Israel, as the State of the Jewish people, is a product of that conspiracy. We further submit that none of the material complained of falls within the exemptions contained in s 18D of the Act. You will be aware that this Council has brought two cases of racial hatred before HREOC in the past, one against Olga Scully and the other against Fredrick Toben. Both cases were ultimately heard and determined in favour of the Council by the Federal Court of Australia. In both cases the Court was satisfied that Jews, and Jewish Australians in particular, constitute a race or a national or ethnic group for the purposes of the Act. In the Toben case, the Court also found that the publication of material on the internet is an act that is done otherwise than in private for the purposes of s 18C of the Act. We are seeking to have the material complained of removed from the internet and an apology to Australia's Jewish community being given publicly by the website's owner/s.' The reference in the above letter to 'Jewish Australians' and 'Australian Jewish Community ' may be observed. The connection of the BBC and of Mr Grigor-Scott to the foregoing Bible Believers' website will be further indicated in these reasons. The grounds or particulars of the complaint were at least implicitly adopted by Mr Jones therein and subsequently pursued in the present proceeding. 7 The foregoing decision on appeal in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 was made on 27 June 2003 by a Full Federal Court comprising Carr, Kiefel and Allsop JJ in favour of Mr Jones as complainant also in those proceedings, in line with the decision at first instance of Branson J in Jones v Toben (2002) 71 ALD 629. Mr Jones, being the applicant for relief there involved, is the same representative person for the Executive Council of Australian Jewry as here constituted. 8 The circumstances leading to the Court's decision-making in Toben [2003] FCAFC 137 ; 129 FCR 515 were similar in substance to those which have led to the bringing of the present proceedings, and reflected a not dissimilar theme to the subject matter of complaint involving denial of the Holocaust which preceded and continued throughout World War II, an attack upon the widespread exposure of those circumstances on the part of Jewish people, and assertions that Jewish people exaggerated the number of Jews killed in the Holocaust for improper purposes. The language the subject of complaint in Toben was described by Carr J at [45] as 'deliberately provocative and inflammatory' and a 'flamboyantly-worded challenge' , and lacking in good faith, those being descriptions adopted by the applicant in relation to its case against the respondents. 9 I observe moreover that in the concurring appellate judgment of Kiefel J in Toben [2003] FCAFC 137 ; 129 FCR 515 , her Honour concluded, at [77], that: ' [t] he likelihood that the appellant wrote only to pursue the truth of those subjects is rendered implausible by this unnecessary aside, which appears to have no real purpose in such a debate other than to disparage Jewish people. In my view, it confirms what a reading of the article as a whole raises as a prospect, namely that it was published with Jewish people in mind, as those responsible for concocting the Holocaust and, indeed, as an attack upon them'. A similar approach has been adopted by Mr Jones in his presentation of the present case. Her Honour agreed with Carr J that there was no proof of the appellant's (ie Toben's) good faith. 10 In the further concurring judgment of Allsop J, his Honour made the following observation at [98]: '98. The above history (taken from the works of scholars, Lerner and Schwelb, working contemporaneously with events) is given to illuminate what it was that the international community was dealing with. By this time in the twentieth century, the nations of the world had experienced a century stained by, amongst other catastrophes, racial slaughter, pogroms, forced removal and relocations of whole peoples, religious and ethnic genocide, and were undergoing the trauma involved in the break-up and disintegration of colonial empires and national and regional political structures based on racial characteristics. The unexpected recrudescence, in the winter of 1959-1960, of some of the most recent and horrific manifestations of racist behaviour enlivened the world community to act swiftly and (with an inevitable degree of variation in political perspective) unanimously, to take steps towards the elimination [his Honour's emphasis] of the perceived evil. The perceived evil was all [again his Honour's emphasis] forms of racial discrimination and racial prejudice, the manifestation of which had been, in recent generations, at times horrifically violent and strident, at times overt, and at times less overt and less brutal, but nevertheless insidiously pervasive. In any form, it was recognised, by all nations in the international community, to strike at the dignity and equality of all human beings.' Thereafter at [100]-[101], his Honour added: '100. Racial hatred was one form or manifestation of the perceived evil. Unhappily, it was a form with which the nations in the General Assembly in 1960 to 1965 were all too familiar. It was the form of the perceived evil most likely to lead to brutality and violence, but it was not the only form of the perceived evil antithetical to the dignity and equality inherent in all human beings upon which the Charter of the United Nations was based. It was to all [his Honour's emphasis] such forms and manifestations that the Convention was directed. 101 The definition of "racial discrimination" in Art 1 of the Convention confirmed the wide aim of the Convention: Article 1 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.' His Honour then referred at some length to the public discussion and debate, and to issues as to in-roads into freedom of speech, which led to the enactment of the RD Act in Australia. 11 The material relied on, in particular, by the Executive Council of Australian Jewry was The Bible Believers' Newsletter #242 , (the copy before the Court bearing the date 9 May 2005). It is 15 pages in length and contains the following segments ( inter alia ): '(i) an introduction commencing 'We focus on the PRESENT Truth what Jesus is doing NOW...' 'Seven Pillars of Jewish Denial' 'Landmark Court Ruling Against Holocaust Denier' 'September 11 US Government Accused' 'Thinking Up a Pretext for War' 'Lies and the First Anniversary of the 9/11 Conspiracy' (ii) the following concluding material: 'Pass it on... Send this article to someone you know Brother Anthony Grigor-Scott is a non-denominational minister. He has ministered full-time since 1981, primarily to other ministers and their congregations in other countries. He pastors Bible Believers' tiny congregation, and is available to teach in your Church.' Below that appeared reference to the details of the BBC website. 12 The website also contained the following material: (i) an article by Dr E R Fields headed ' Was there Really a Holocaust '? (ii) an abridgment of a book titled ' The International Jew , The World's Foremost Problem ' (the author whereof was stated to be Henry Ford Senior) containing the ' Editor's Forward ' of one page in length, together with a summary of the life of Henry Ford contained in a journal apparently published, and which referred to the circumstances that Mr Ford ' was accused by many Jews' and 'was a resolute opponent of Roosevelt's policy of "controls" in industry and commerce ...'. 13 Following upon that material being placed before HREOC, Mr Grigor-Scott purportedly on behalf of the BBC or in any event in the name of the BBC, wrote further to HREOC the following communications in support of his request that it terminate what he described as 'Mr Jones unwarranted complaint' (now forming Exhibit A1 in the present proceedings): (i) letter dated 5 November 2004; (ii) letter dated 18 November 2004 (which comprised in all some 11 pages); (iii) email dated 19 November 2004; (iv) letter dated 18 January 2005.


case_title: Jones v Toben (2002) 71 ALD 629

case_text: The foregoing decision on appeal in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 was made on 27 June 2003 by a Full Federal Court comprising Carr, Kiefel and Allsop JJ in favour of Mr Jones as complainant also in those proceedings, in line with the decision at first instance of Branson J in Jones v Toben (2002) 71 ALD 629. Mr Jones, being the applicant for relief there involved, is the same representative person for the Executive Council of Australian Jewry as here constituted. 22 Whether the first respondent has legal personality upon the basis of being the registrant of that domain name may be a moot point. The applicant submitted that the BBC was an unincorporated association and 'does not appear to have any corporate identity or existence'; the applicant supported that proposition with evidence that the BBC is not listed in either ASIC or Australian Business Registrar records. The applicant made the further submission that in Jones 71 ALD 629, the first respondent, 'the Adelaide Institute', was also found to be an unincorporated association in the control of the second respondent, Mr Toben. In Jones 71 ALD 629, Branson J found, at [66], as follows: 'The respondent has made it plain during the course of the proceeding that he does not dispute that he controls the Adelaide Institute. He describes himself as the director of the Adelaide Institute and in correspondence utilises the letterhead of the Adelaide Institute [...] I am satisfied that the respondent is responsible for the actions of the Adelaide Institute. In particular I am satisfied that at all material times it has been the respondent who has caused the material which is displayed on the websites of the Adelaide Institute to be displayed on those websites.' The applicant observed that the first respondent's letterhead identified the second respondent, Mr Grigor-Scott, in the email contact as ags@biblebelievers.org.au. In any event of course, Mr Grigor-Scott has legal personality as a natural person and he at least has been properly constituted as a respondent to the proceedings, and can be appropriately sued by the applicant. 23 As already indicated, neither The Bible Believers' Church (which I have foreshadowed is to be abbreviated as the 'BBC'), nor Mr Grigor-Scott, filed a notice of appearance with the Registry of this Court, whether in accordance with the Federal Court Rules or at all. As I have foreshadowed, the BBC does not appear to have been registered anywhere in Australia, whether as any form of incorporated or deemed legal entity created under the auspices of Federal or State legislation in Australia or otherwise, though as already exemplified as well as explained, it does operate a website. As I have foreshadowed, it would seem that the BBC has no legal personality, being at most an unincorporated association and merely an emanation of Mr Grigor-Scott, which is probably the more accurate description. There is no evidence of any other person being a member of the BBC, whether by way of a register of members or otherwise. Nevertheless in the light of the way in which the proceedings have been structured and the litigation conducted by each of Mr Jones in his stated represented capacity as applicant and of Mr Grigor-Scott as respondent, the Court record in respect of the proceedings has continued as a matter of expediency to be as it presently appears in the heading to these reasons for judgment. 24 Prior to the filing and service of the amended statement of claim by Mr Jones, which remained in operation for the purpose of the hearing, the proceedings had been on 20 September 2005 the subject of what may be described imprecisely as preliminary proceedings. On that occasion Mr Grigor-Scott informed the Court that '... the Church is not a justiciable body' and that '... nobody can appear for it', and hence he was not seeking to appear for the BBC. Notwithstanding that neither respondent had filed an appearance, counsel for the applicant informed the Court that the applicant did not seek to exclude either respondent in those circumstances from objective relief. Mr Grigor-Scott explained to the Court on that occasion the following: ' [BBC] is not a legal entity. It's not a corporation. It's not registered with anybody. It's just a group of believers. It's just part of the Body of Christ. As such, it cannot sue, neither can it be served a Summons'. On that purported basis he said that he appeared for himself alone. 59 Mr Grigor-Scott's case has failed moreover to confront and answer the nature and the extent of the findings and reasoning of this Court in Jones v Toben , both at first instance and on appeal, to which authority I have of course earlier made reference. There was ample corresponding support in the present case for the making here of similar findings to those made in Jones v Toben . Moreover it is unnecessary for me to determine the validity of the second respondent's assertions regarding the Holocaust. Hely J observed in Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [176] - [177] as follows: '176. I am not in a position to determine, as a matter of fact, whether the claim made by the author of the pamphlet that the Holocaust never occurred is true or not. I do not have the evidence which would be needed to enable me to make that determination, assuming that the matter is susceptible of proof in a court. As Gray J observed in Irving v Penguin Books Ltd [2000] EWHC QB 115 at [1.3] , that is a task for historians whose role it is to provide an accurate narrative of past events; whereas my role is to determine whether the public dissemination of the leaflet by Mrs Scully in Launceston contravenes s 18C of the RDA. 177. In my view, a leaflet that conveys an imputation that Jews are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world is reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. This would be so regardless of whether or not the leaflet made mention of the Holocaust. However, the fact that the imputation arises in the context of a debate about the Holocaust makes it even more likely that the leaflet would cause offence. This is particularly so owing to the inflammatory language used in the leaflet, as well as the fact that it is unambiguously dismissive of the Jewish view of the Holocaust. I therefore find that this leaflet contravenes s 18C.' I think it is appropriate for me to refrain from addressing further what appears in the evidence as to Mr Grigor-Scott's apparent views concerning the occurrence or otherwise of the Holocaust. 65 In the result the application by Mr Jones made on his own part and on behalf of the Executive Council of Australian Jewry should be granted, and the relief sought thereby should be ordered in principle. Given however that the BBC does not have legal personality, not being an incorporated entity as I have earlier explained, no order may be made against what is merely a name or description, though of course restraints may be made against future conduct of Mr Grigor-Scott as to causing or committing proscribed conduct to occur, including proscribed conduct undertaken in the name of the BBC. I should add that the applicant's amended application sought inter alia an order that the second respondent, Mr Grigor-Scott, deliver to the applicant a written statement of apology. I consider such an order to be inappropriate. I refer in that regard to the observation of Branson J in Jones v Toben (2002) 71 ALD 629 at [106], where her Honour stated as follows: '...I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel. As Hely J pointed out in Jones v Scully at [245] , "prima facie the idea of ordering someone to make an apology is a contradiction in terms"...' The second respondent must pay the applicant's costs of the proceedings, including any previously reserved costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 2 February 2007 Counsel for the Applicant: Mr RM Goot AM SC and Mr SEJ Prince Solicitor for the Applicant: Slater & Gordon Lawyers Second Respondent appeared in person Date of Hearing: 20 September 2005, 5 June 2006, 14 September 2006 and 18 October 2006. Date of Judgment: 2 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/55.html


case_title: Miller v Wertheim [2002] FCAFC 156

case_text: The applicant submitted that 'Jews in Australia comprise a group of people with an 'ethnic origin' for the purposes of the Act...'. In support of that proposition, the applicant relied on Miller v Wertheim [2002] FCAFC 156 at [14] , where Heerey, Lindgren and Merkel JJ observed as follows: '... it can be readily accepted that Jewish people in Australia can comprise a group of people with an "ethnic origin" for the purposes of the Act (see King-Ansell v Police [1979] 2 NZLR 531)....' I agree with that submission by the applicant, and find that Jews in Australia are a group of people with a common "ethnic origin" within the meaning of s 18C of the RD Act.


case_text: The question as to the reasonableness or otherwise of conduct for the purposes of s 18D was explained by a Full Federal Court in Bropho v Human Rights and Equal Opportunity Commission and Anor (2004) 135 CLR 105 comprising French, Lee and Carr JJ. My attention was drawn by counsel for the applicant to the following passages in the reasons for decision, being pars [80]-[82], [96] and [102] in the reasons for judgment of French J, [141] and [144] in the reasons of Lee J and [178] in the reasons of Carr J. I would draw attention in particular to the formulation of the reasonableness requirement addressed by French J in those passages in his reasons, and in particular the following in [80]-[81] concerning 'the public interest': '80. An Act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise "inferior" to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to para (b) of s 18D. 81. The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done "reasonably". A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of para (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered "reasonably".' The second respondent Mr Grigor-Scott made the following assertion in his submission document bearing date 25 September 2005 ( ante ): 'Everything that has been said or done by the respondents, or either of them, about which complaint has been made in this matter, has been said or done reasonably and in good faith for the purpose of making a fair and accurate report of events or [sic] matters of public interest or had been the expression of a genuine belief about such events or matters held by the person making the comment'. 49 As to the statutory notion of 'good faith', I would draw attention to what was said by French J at [96] and [102] on that subject in his majority judgment: '96. It follows from the preceding discussion that good faith may be tested both subjectively and objectively. Want of subjective good faith, ie, seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively. 102. A person acting in the exercise of a protected freedom of speech or expression under 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or willfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith.' 50 What was next submitted to the Court on the occasion of Mr Grigor-Scott's attempted re-opening of the evidence in the case was a large bundle of documents. That course of re-opening was opposed by counsel for the applicant upon the basis that Mr Grigor-Scott's affidavits of 7 September 2006 and 11 October 2006 were in any event of no relevance to the defence by the respondents of the proceedings, and otherwise to any issue in the proceedings relevantly to the statutory scheme. Moreover it was emphasised that the respondents had already passed up ample opportunity to present any such material to the extent that it was relevant, and in any event, no relevance to the issues properly arising had been demonstrated by Mr Grigor-Scott. 51 By way of rejoinder, Mr Grigor-Scott pointed broadly to what appeared on the BBC's website and 'to ... what I have got on the computer here', that being however a response of no utility, much less an explanation as to how any specific instance of his website documentation bore upon the issues arising, or for what reason. It is convenient at this point that my impression was that Mr Grigor-Scott's purported unspecific tender of vast numbers of unidentified documents might operate to draw out the current proceedings indefinitely. Moreover Mr Grigor-Scott continued to repeat in the course of his purported address to the Court vaguely or at best broadly expressed criticisms of the applicant's case of obviously no assistance, such as that '[t]here were a whole series of implausible submissions ...', that 'they have no case', that there was 'no evidence of breach of the statute', that 'the applicant is misusing the Act in order to promote the objectives of the Anti-Defamation League of B'nai B'rith', that 'my church has done nothing wrong', and that the applicant's case was 'untruthful'. 61 I have recorded in some detail Mr Grigor-Scott's assertions and submissions, advanced as they were from the Bar Table and which were contained in written material which he sought to tender, inclusively of his short purported written submissions dated 25 September 2006. He maintained to the Court that all that he had done in the course of the proceedings the subject of complaint was undertaken ' .... to determine reasonableness and good faith', in line with the operation of s 18D of the RD Act upon which he repeatedly claimed reliance. I should further record additionally that on the concluding day's hearing, I rejected the admissibility of the remaining evidence of 7 September 2006 and 11 October 2006, which he sought to tender into evidence, as 'oppressive and irrelevant', though I nevertheless agreed to treat his relatively short two and a half page 'submission' of 25 September 2006 as having been placed before the Court for consideration. By that document, Mr Grigor-Scott asserted reliance upon what appeared in the judgments of the Full Federal Court in Bropho [2004] FCAFC 16 ; (2004) 135 FCR 105, and specifically at [79] and [101]-[102] in the case of French J and [178] in the case of Carr J, though I am unable to discern how those passages conceivably assisted his case. 62 As foreshadowed, counsel for the applicant placed reliance upon what appeared in the reasons for judgment in Bropho [2004] FCAFC 16 ; 135 FCR 105 of French J at [96] and [102], of Lee J (dissenting) at [141], and of Carr J at [178], and contrary to the submission of Mr Grigor-Scott, counsel for the applicant explained further by supplementary outline of written submissions the basis for his invocation of those principles enunciated in Bropho [2004] FCAFC 16 ; 135 FCR 105 which he thereupon cited. Those principles related to the statutory tests as to ' reasonableness', 'public interest' and 'good faith' , in relation to which tests it was submitted by counsel that Mr Grigor-Scott's case fell well short, being a submission which in my opinion, in the light of the matters I have recorded in these reason, was clearly correct. Mr Grigor-Scott's purported invocation of s 18D was made incidentally by way of a so-called written 'submission', and not by way of formal application for relief in the form prescribed by the Federal Court Rules . 63 I should record for completeness that Mr Grigor-Scott sought to contend in his belated 25 September 2006 document that '[t]he matters about which the complaints in this matter have been made do not relate to every "Jew", but are part of an academic or public interest discussion in relation to "Zionist" policies and practices'. I have not been able to identify, much less rationalise however, the existence of any such discussion in the context of the present proceedings and of the conduct complained of by the applicant which has led thereto. I agree with the response of counsel for the applicant that the submission is misconceived in its purported aspects. 64 I should acknowledge that by letter bearing date 1 August 2006 written very belatedly by Mr Grigor-Scott, there was sent, without prior approval of a direction or otherwise of the Court, a comprehensive five page closely typed letter. This document bore implicitly the fact of a likely receipt by him of legal assistance, by at least the latter stage of the proceedings. It included what may be described as an unfortunate hotchpot of repetition, abuse of the applicant's case, misstatements, and otherwise irrelevant material that constituted no sufficient basis for specific consideration in the course of these reasons.


case_text: Mr Grigor-Scott's case has failed moreover to confront and answer the nature and the extent of the findings and reasoning of this Court in Jones v Toben , both at first instance and on appeal, to which authority I have of course earlier made reference. There was ample corresponding support in the present case for the making here of similar findings to those made in Jones v Toben . Moreover it is unnecessary for me to determine the validity of the second respondent's assertions regarding the Holocaust. Hely J observed in Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [176] - [177] as follows: '176. I am not in a position to determine, as a matter of fact, whether the claim made by the author of the pamphlet that the Holocaust never occurred is true or not. I do not have the evidence which would be needed to enable me to make that determination, assuming that the matter is susceptible of proof in a court. As Gray J observed in Irving v Penguin Books Ltd [2000] EWHC QB 115 at [1.3] , that is a task for historians whose role it is to provide an accurate narrative of past events; whereas my role is to determine whether the public dissemination of the leaflet by Mrs Scully in Launceston contravenes s 18C of the RDA. 177. In my view, a leaflet that conveys an imputation that Jews are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world is reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. This would be so regardless of whether or not the leaflet made mention of the Holocaust. However, the fact that the imputation arises in the context of a debate about the Holocaust makes it even more likely that the leaflet would cause offence. This is particularly so owing to the inflammatory language used in the leaflet, as well as the fact that it is unambiguously dismissive of the Jewish view of the Holocaust. I therefore find that this leaflet contravenes s 18C.' I think it is appropriate for me to refrain from addressing further what appears in the evidence as to Mr Grigor-Scott's apparent views concerning the occurrence or otherwise of the Holocaust. 65 In the result the application by Mr Jones made on his own part and on behalf of the Executive Council of Australian Jewry should be granted, and the relief sought thereby should be ordered in principle. Given however that the BBC does not have legal personality, not being an incorporated entity as I have earlier explained, no order may be made against what is merely a name or description, though of course restraints may be made against future conduct of Mr Grigor-Scott as to causing or committing proscribed conduct to occur, including proscribed conduct undertaken in the name of the BBC. I should add that the applicant's amended application sought inter alia an order that the second respondent, Mr Grigor-Scott, deliver to the applicant a written statement of apology. I consider such an order to be inappropriate. I refer in that regard to the observation of Branson J in Jones v Toben (2002) 71 ALD 629 at [106], where her Honour stated as follows: '...I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel. As Hely J pointed out in Jones v Scully at [245] , "prima facie the idea of ordering someone to make an apology is a contradiction in terms"...' The second respondent must pay the applicant's costs of the proceedings, including any previously reserved costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 2 February 2007 Counsel for the Applicant: Mr RM Goot AM SC and Mr SEJ Prince Solicitor for the Applicant: Slater & Gordon Lawyers Second Respondent appeared in person Date of Hearing: 20 September 2005, 5 June 2006, 14 September 2006 and 18 October 2006. Date of Judgment: 2 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/55.html


case_text: It should be recalled that context is not merely the Act as a whole, including its text and structure, but context "in its widest sense": CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408. The relevant words are considered by reference to the language of the statute as a whole in their legal and historical context having regard to the evident aim and purpose of the legislation and provision in question, to any canons of legal construction and to any inconvenience or improbability of result of any given construction. Fundamental to the task is the giving of close attention to the text and structure of the relevant provisions as to the words used by Parliament: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at [36] and the cases there cited, and Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592 at [50] .


case_text: The respondent relied upon the notion that Division 170 was a code and that care should be exercised in having recourse to the pre-existing law when construing it. Reference was made in this respect to Brennan v R [1936] HCA 24 ; (1936) 55 CLR 253 at 263. In this respect, however, the terms of s 1 - 3 of the ITAA 1997 are to be recalled, in particular since Division 170 can be seen to have a precursor, redrafted in different style, in s 80G of the ITAA 1936. 64 On the assumption that the applicants are correct as to the meaning of s 170- 10 , and in particular as to the meaning of the phrase "part of the tax loss", the respondent submits (and reasoned in his disallowance of the objection) that KSL as the income company does not meet the condition in s 170-40(2). 65 It was common ground that the loss company, KYC, satisfied all conditions in subdivision 170-A. In particular the matters set out in s 170- 35 , and through it, Subdivision 165-A. The satisfaction of Subdivision 165-A arose from the fact that the continuity of business test in s 165- 13 was not failed, even though the continuity of ownership test in s 165- 12 was failed.


case_title: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384


case_text: Thus, I agree with the thrust of the applicants' submission in this regard that provisions such as Division 170 should not be narrowly construed and should be interpreted to promote the purpose or object underlying the Division which can be seen as the purpose and object of s 80G of the ITAA 1936. That does not mean, however, that provisions are given a meaning which they do not bear. Rather, no narrow approach is to be taken, and the beneficial purpose is to be borne in mind in ascribing the meaning to words used: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 632; Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 at 633; Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395 at 400; and Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 at 549 and 560.


case_title: Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592


case_text: The respondent submitted that it was "doubtful" whether Division 170 should be characterised as relieving legislation, "rather than providing a statutory regime for the transfer of losses within a corporate group where certain conditions are satisfied." Looking at its history and provenance, it is tolerably clear that the aim of Division 170 is to provide a benefit to taxpayers by relieving them from the logical consequences of individual legal personality. Its precursor, s 80G, was intended to be beneficial to the taxpayer Harts [2001] FCA 761 ; 109 FCR 405 at [18] and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at 193 [141] . Its aim was, broadly, to align the treatment of company groups with divisions in companies: Asiamet (No 1) Resources 137 FCR at 193 [142]. But that is to be seen as effected by the statutory language employed, and no further.


case_text: Thirdly, it was submitted that s 170- 15 (1) was a deeming provision and thus should be construed strictly: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96. The respondent submitted that the applicants were attempting to give s 170- 15 more work to do than it bore. In particular, this criticism was made of [31] and [32] of the applicants' submissions. 72 The applicants submitted that all these submissions of the respondent rest on the primary or first issue whether Division 170 provides in its terms for transfer of part of a loss which is incurred in part of a year. If it is, all the arguments about s 170-40(2) collapse in on themselves. 73 I think there is force in this last submission. Ultimately, there is one issue: Does Division 170 contemplate as part of its operation the transfer between companies in a group to which the Division applies part of a tax loss for a year which is referable to part of that year?


case_text: The appeal is to be decided upon the facts comprising the arrangement on which the ruling was made: Federal Commissioner of Taxation v McMahon (1997) 79 FCR 127. The relevant facts, taken from the ruling are as follows: "KYC was incorporated during September 1982 and is a public company listed on the Australian Stock Exchange (ASX). The principal activities of KYC and its subsidiaries are: • Research, development and sales of devices and systems to allow secure electronic payments and transactions at the point-of-sale; • Service solutions (including installation, maintenance, help desk support, logistics and asset management services for point-of-sale terminals and automatic teller machines; • Research, development and sales of smartcard technology, including licensing of operating systems and applications for smartcards; and • Marketing and sales of secure transaction network solutions. For a number of income years prior to the 2001 tax year, KYC lodged tax returns on the basis of a substituted accounting period (SAP), being an early balancing SAP ending on 31 December. During the 2001 year, KYC reverted to a 30 June year end due to a change in ownership of the company. Transition to the 30 June year end was effected via an 18 month return covering the period 1 January 2000 to 30 June 2001. This represented KYC's 2001 year of income. KSL was incorporated in Australia on 21 August 2000 with all shares in KSL directly owned by KYC. KSL was incorporated by KYC as a special purpose entity to acquire a particular business from Telstra Corporation Ltd (Telstra) as part of the arrangements referred to below. On 25 October 2000, Telstra (through its wholly owned subsidiary Telstra cb.fs Limited) agreed to subscribe for 38,700,000 ordinary fully paid shares in the capital of KYC. These shares were not issued to Telstra until 14 December 2000. These shares represented approximately 51% of the total capital of KYC at the time of issue. The business was transferred from Telstra to KSL pursuant to an agreement between Telstra, KSL and KYC dated 25 October 2000. The business was not transferred from Telstra to KSL until 14 December 2000, immediately after the issue of KSL shares to Telstra on the same date. The only activity of KSL prior to this date was to enter into contracts for the acquisition of the business. On the basis that KSL did not trade from the time of incorporation until 14 December 2000, being the time of transfer of the business from Telstra, the business of KSL commenced on that date. During the 18 month period ended 30 June 2001, KYC incurred a tax loss of $39,068,802. After utilising losses in that income year, there were tax losses available to be carried forward of $27,470,209. During the year ended 30 June 2002, KSL derived taxable income of $27,748,457. On 28 June 2005 a Share Sale Agreement was entered into whereby the shares in KSL are to be acquired by Telstra. KYC previously sought an exercise of the discretion of the Commissioner pursuant to section 170-50(2)(d) to extend the time for making a valid loss transfer agreement. The Commissioner exercised his discretion pursuant to section 170-50(2)(d) and notified KYC in a letter dated 2 June 2005. A loss transfer agreement was entered into to transfer $27,748,457 in tax losses from KYC to KSL in order to reduce the taxable income of KSL to nil. The attempted loss transfer was ineffective as it sought to transfer the whole of the losses incurred by KYC for the period 1 January 2000 to 30 June 2001. The transfer was ineffective because the issue of 38,700,000 ordinary fully paid shares in the capital of KYC to Telstra on 14 December 2000 was an abnormal trading event and resulted in a change of ownership as the shares represented approximately 51% of the total capital of KYC at the time of issue." 4 The terms of the two questions to which the respondent was directed were expressed slightly differently in two places in the ruling. At the beginning of the ruling under the heading "WHAT THIS RULING IS ABOUT" the following appeared: "1. Can KYC pursuant to Division 170 of the Income Tax Assessment Act 1997 (ITAA 1997) transfer to KSL an amount of its tax loss for the year ended 30 June 2001, being that part of the loss incurred by KYC during the period 14 December 2000 to 30 June 2001, so that KSL may deduct the amount of loss transferred in accordance with section 36-17 of the ITAA 1997 in the year of income ended 30 June 2002? 2. Can KYC and KSL have an extension of time within which to effect a written agreement for transfer of the amount of the loss of one month from receipt of the ruling?" (The reference to "section 36-17" was an error. It should have been "section 36.10") At the end of the section of the ruling entitled "THE SUBJECT OF THE RULING" which contained the facts the following appeared: "The Commissioner is now asked to rule: 1. That KYC may transfer an amount of its tax loss incurred during part of the income year from 14 December 2000 to 30 June 2001 so as to avoid the date of the change of ownership; and 2. That KYC and KSL may make a written agreement for transfer of the amount of the tax loss within one month of receipt of the ruling referred to at 1." 5 Two assumptions were made in the ruling as follows: "• The taxpayer will apply for a Commissioner's discretion for additional time to enter into a valid loss transfer agreement pursuant to section 170-50(2)(d) of the ITAA 1997 ;and • The Commissioner will grant that additional time to make the loss transfer."


case_title: Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543


case_title: Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623


case_text: The applicants submitted that what Drummond J said was being taken out of context. I think there is force in that criticism. On appeal from Drummond J, the Full Court set aside the answers given to a separate determination of questions ( Harts Australia Ltd v Commissioner of Taxation [2001] FCA 761 ; (2001) 109 FCR 405). In so doing Merkel J (with whom Lee J and Finn J concurred) made a number of relevant points: (a) An agreement to comply with s 80G(6)(c) must be in relation to an amount that is fixed and identifiable in the sense that it is ascertainable. (b) The general purpose and policy of these provisions is beneficial to the taxpayer and thus a liberal, rather than a narrow or technical approach, is to be taken to the construction of s 80G. (c) The amount need not be quantified and specified in the agreement, but it must be fixed and ascertainable. 60 Fourthly, the applicants submitted that Division 170 is relieving legislation. This submission was supported by the terms of the second reading speech for the earlier legislation in the Income Tax Assessment Bill (No 4) 1984 that the purpose was to assist taxpayers and stimulate business activity. It was also supported by the expression of view by the Full Court in Harts [2001] FCA 761 ; 109 FCR 405 at [18] . 61 The respondent submitted that it was "doubtful" whether Division 170 should be characterised as relieving legislation, "rather than providing a statutory regime for the transfer of losses within a corporate group where certain conditions are satisfied." Looking at its history and provenance, it is tolerably clear that the aim of Division 170 is to provide a benefit to taxpayers by relieving them from the logical consequences of individual legal personality. Its precursor, s 80G, was intended to be beneficial to the taxpayer Harts [2001] FCA 761 ; 109 FCR 405 at [18] and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at 193 [141] . Its aim was, broadly, to align the treatment of company groups with divisions in companies: Asiamet (No 1) Resources 137 FCR at 193 [142]. But that is to be seen as effected by the statutory language employed, and no further.


case_text: In support of this use of s 80G(6)(c) and (13), the respondent referred to a passage in the reasons of Drummond J in Harts Australia Pty Ltd v Commissioner of Taxation 2000 ATC 4566 at [11] in which his Honour said: "Section 80G(6)(c) requires agreement that there is to be a transfer of this right to an allowable deduction under s 80(2) "in respect of so much of the whole or part of" the loss the subject of the right to that deduction. What can be transferred under s 80G is company A's right to deduct that dollar amount, to the extent of the whole of it or a part only of it. An agreement to transfer the loss company's right to a deduction under s 80(2) in respect of the whole of its loss deductible under that section must necessarily refer to a loss of a particular dollar amount that is then, ie, at the date of the agreement, identifiable, even if that dollar amount is not itself recorded in the agreement. An agreement to transfer the loss company's right to a deduction under s 80(2) in respect of part only of that loss must identify the part of the then identifiable dollar amount of the entire loss that is the subject of the agreement; prima facie, that could be done by recording in the agreement either the dollar amount of that part of the fraction of the then identifiable dollar amount of the whole of the loss, that is the subject of the transfer agreement." [emphasis in respondent's submissions] 58 Reference was also made to the later judgment of Heerey J (2001 ATC 4394). 59 The applicants submitted that what Drummond J said was being taken out of context. I think there is force in that criticism. On appeal from Drummond J, the Full Court set aside the answers given to a separate determination of questions ( Harts Australia Ltd v Commissioner of Taxation [2001] FCA 761 ; (2001) 109 FCR 405). In so doing Merkel J (with whom Lee J and Finn J concurred) made a number of relevant points: (a) An agreement to comply with s 80G(6)(c) must be in relation to an amount that is fixed and identifiable in the sense that it is ascertainable. (b) The general purpose and policy of these provisions is beneficial to the taxpayer and thus a liberal, rather than a narrow or technical approach, is to be taken to the construction of s 80G. (c) The amount need not be quantified and specified in the agreement, but it must be fixed and ascertainable.


case_title: Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395


case_title: Adultshop.com Ltd v Members of the Classification Review Board (No 2) (2000) FCA 1872

case_text: In Adultshop.com Ltd v Members of the Classification Review Board (No 2 ) (2000) FCA 1872 at [23] - [31] , I referred briefly to the principles which apply in the exercise of the Court's discretion to make an order under s 50. I observed at [28] of my reasons in that case that the Court will respect legitimate claims for confidentiality which should not be unduly discounted in the weighing process when balancing the claim for confidentiality against the countervailing public interest in open justice. 56 In the present case it is sufficient to say that an order under s 50 is warranted for the time being because of the conditions subsequent referred to in the Deed of Settlement. As I have said previously, I do not think it is necessary for me to refer to them in my reasons for judgment, but I have considered them carefully and I do think that the weighing process in the present case points in favour of upholding the claim for confidentiality. The Deed of Settlement itself contains a confidentiality clause in cl 16. 57 In summary, I think it is sufficient to say that disclosure of the pertinent provisions of Mr McGrath's affidavit which exposed his reasoning process would seriously prejudice the liquidators in the event that Mr Selim and the Commonwealth have access to the views which Mr McGrath has expressed in his affidavit. 58 For these reasons, I propose to make the direction set out in [1] of the draft order handed to me this morning by Senior Counsel for the liquidators. I also propose to make orders in terms of [2], [3] and [4]. Order 4 reserves liberty to apply. It may be appropriate in due course for the orders under s 50 to be reviewed in light of subsequent developments in the litigation. 59 I have given this judgment in closed court pursuant to s 17(4) of the Federal Court Act . However, having now heard from Mr Nixon who has fairly conceded that the order under s 17(4) need not be continued, I will dissolve that order and direct that my reasons for judgment may be published. 60 I will leave in force the order under s 17(4) insofar as it applies to the transcript of the application that was made before me this morning. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 7 May 2008 Counsel for the Applicant: Mr J Sheahan QC with Mr S Nixon Solicitor for the Applicant: Blake Dawson Date of Hearing: 23 April 2008 Date of Judgment: 23 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/563.html


case_text: One of the powers which the Court might exercise if Pan were being wound up by the Court is the power to apply to the Court for directions in relation to any particular matter arising under the winding up. This Court has previously heard and granted similar applications under both ss 479(3) and 511(1). A useful example of this is the decision of Lee J in Bank of Melbourne Ltd v HPM Pty Ltd (in liq) (1997) 26 ACSR 110. See also the decision of Hansen J in UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 251 , affirmed on appeal by the Court of Appeal in (1996) 21 ACSR 457 (per Hayne JA, Brooking and Phillips JJA concurring). 34 A number of decisions have confirmed that the power under s 477(2)(c) includes the power to cause the company to assign a cause of action to a third party. The leading authorities were referred to by Lee J in Bank of Melbourne at 112. 35 His Honour observed at 112 that the power of sale under s 477(2)(c) is similar to that conferred on a trustee in bankruptcy by ss 134(1)(a) and 135(1)(a) of the Bankruptcy Act 1966 (Cth) to dispose of the property of a bankrupt. His Honour observed that it entitles the liquidator to sell a bare right of action to a stranger, whether for a cash payment or on terms that the stranger will pay to the company part of the proceeds of the litigation provided only that the right of action is property. His Honour also observed at 112 that s 9 of the Corporations Law (which was then in force) defined "property" to include a chose in action. 36 Unlike the Bankruptcy Act , the Corporations Law did not vest the property of the company in liquidation in the liquidator unless an order to this effect was made by the Court. However, as Lee J pointed out, the lack of such an order will not limit the liquidator's power to assign a company's right of action provided that in such a case the company remains the assignor for the purposes of the transaction. 37 In the present case the agreement in cl 10.1 of the Deed is that the liquidators will cause Pan to assign the causes of action against the Commonwealth. The assignment is an absolute one. 38 It seems to me to follow from what was said by Lee J and from the various authorities to which his Honour referred that in the present case the proposed assignment of the causes of action is within the power of the liquidator. See also the comparatively recent decision of the High Court in Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386. 39 The second question is whether the liquidators are justified in entering into the assignment. Lee J pointed out in Bank of Melbourne that in determining whether a liquidator should be directed to make an assignment, a Court should consider whether the assignment would lead to vexatious or improper litigation. His Honour observed that there is no obligation on either the Court or the liquidator to conduct an investigation of the likelihood of success of the proceeding and that it will be quite impractical to do so in an application of this nature. 52 I should mention that the application before me has been made ex parte . In Bank of Melbourne , Lee J observed at 112 to 113 that this is an appropriate course. His Honour referred to a number of leading authorities including decisions of McClelland CJ in Re BPTC Limited (1996) 14 ACLC 845 at 846 and Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674.


case_text: It seems to me to follow from what was said by Lee J and from the various authorities to which his Honour referred that in the present case the proposed assignment of the causes of action is within the power of the liquidator. See also the comparatively recent decision of the High Court in Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386.


case_text: In Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 141 ALR 667 a Full Court dealt with a similar question arising under the Bankruptcy Act . The Court observed at 682, upon the basis of English and Australian authorities, that it is only in a clear case that the Court should come to the view that the proposed assignment is frivolous or vexatious or that the Court should not allow the assignment to occur. 41 Their Honours pointed to the observations of Lord Hoffman in the English decision in Stein v Blake (1996) 1 AC 243 at 260. The relevant passage was set out by the Full Court in Citicorp at 681. It is unnecessary to repeat what Lord Hoffman said in that passage. 42 The observations of the Full Court in Citicorp at 679 are also pertinent. Their Honours observed that there will be few cases where some decisive point exists on which the trustee or the Court can be satisfied that the claim which is proposed to be assigned has no reasonable prospects of success. 43 In the present case it is relevant to note, as I have already, that the cross-claims brought by Mr Selim against the Commonwealth and the TGA offices were the subject of a strikeout application but that the Commonwealth ultimately determined not to pursue that application after amendments were made to the pleadings. 44 In those circumstances, it seems to me to be the position that it is not clear and obvious that any proceeding in respect of the cause of action against the Commonwealth would have no reasonable prospects of success. Accordingly, there is no basis for me to conclude that the assignment of the causes of action to Mr Selim would result in vexatious or improper litigation, so the assignment cannot be said to be an inappropriate exercise of the liquidator's powers. 45 There are a number of other reasons why it seems to me that the liquidators are justified in assigning the causes of action to Mr Selim. It is not necessary to state them in any detail. I have referred to some of them above but in summary there are three principal reasons. 46 First, the proceedings would be lengthy and expensive and if they proceed to a final hearing there is always the risk of the insolvent estate of Pan being exposed to a substantial costs order in the event that the claims against Mr Selim fail.


case_text: The Court's power to give directions pursuant to s 511 is subject to the provisions of s 511(2). The Court must be satisfied that the determination of the question or the exercise of the power will be "just and beneficial" before it accedes to an application. In Re ACN 007 537 000 Pty Ltd (in liq); Ex parte Parker (1997) 150 ALR 92 at 97, Mansfield J referred with approval to the decision of Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79. Mansfield J quoted a passage from the judgment of Young J in which his Honour observed that the meaning of the words "just and beneficial" are that the Court has a discretion as to whether making any order under the section will be of advantage to the liquidation.


case_text: One of the powers which the Court might exercise if Pan were being wound up by the Court is the power to apply to the Court for directions in relation to any particular matter arising under the winding up. This Court has previously heard and granted similar applications under both ss 479(3) and 511(1). A useful example of this is the decision of Lee J in Bank of Melbourne Ltd v HPM Pty Ltd (in liq) (1997) 26 ACSR 110. See also the decision of Hansen J in UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 251 , affirmed on appeal by the Court of Appeal in (1996) 21 ACSR 457 (per Hayne JA, Brooking and Phillips JJA concurring).


case_title: UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457


case_text: The Court's power to give directions pursuant to s 511 is subject to the provisions of s 511(2). The Court must be satisfied that the determination of the question or the exercise of the power will be "just and beneficial" before it accedes to an application. In Re ACN 007 537 000 Pty Ltd (in liq); Ex parte Parker (1997) 150 ALR 92 at 97, Mansfield J referred with approval to the decision of Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79. Mansfield J quoted a passage from the judgment of Young J in which his Honour observed that the meaning of the words "just and beneficial" are that the Court has a discretion as to whether making any order under the section will be of advantage to the liquidation. 51 Finally, I have referred to what Mansfield J said in Ex parte Parker about s 511(2) and the requirement that the exercise of the power be just and beneficial. The reasons, which I have referred to above, point in favour of that condition being satisfied.


case_text: Second, the liquidators also sought an order under s 50 of the Federal Court Act that access to the affidavit of Mr McGrath and to the exhibit to the affidavit be restricted to the Court and the liquidators. That course is consistent with the course adopted by Mansfield J in Re Addstone Pty Limited (in liq) (1998) 83 FCR 583 at 598. The position in Re Addstone was slightly different from that which occurs in the present case. However, there are a number of aspects of the Deed of Settlement which seem to me to point in favour of the confidentiality orders at least for the time being.


case_title: Re BPTC Limited (1996) 14 ACLC 845

case_text: I should mention that the application before me has been made ex parte . In Bank of Melbourne , Lee J observed at 112 to 113 that this is an appropriate course. His Honour referred to a number of leading authorities including decisions of McClelland CJ in Re BPTC Limited (1996) 14 ACLC 845 at 846 and Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674.


case_title: Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674


case_title: Stein v Blake (1996) 1 AC 243

case_text: Their Honours pointed to the observations of Lord Hoffman in the English decision in Stein v Blake (1996) 1 AC 243 at 260. The relevant passage was set out by the Full Court in Citicorp at 681. It is unnecessary to repeat what Lord Hoffman said in that passage.


case_text: Matters relevant to whether security should be provided include whether the application for security is brought promptly, the strength of the applicant's case, whether the applicant is impecunious, whether any impecuniosity was caused by the respondent, whether the application for security is oppressive, and whether the applicant is in substance a plaintiff in the proceeding. See generally Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (No 3) [2007] FCA 1078. 7 I am satisfied the application for security was brought promptly. 14 The word "oppressive" is used in this area to describe an application for security that is used merely to deny an impecunious applicant a right to litigate. See Jianshe Southern at [27]. As a general rule poverty is not a bar to a litigant at first instance. However the position is different as to appeals. In Skyring v Sweeney [1999] FCA 61 at [6] Spender J said: Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. See also Moore v Macks [2007] FCA 509 at [20] to [21].


case_text: I have read the Federal Magistrate's decision the subject of the appeal and the amended notice of appeal. Many of the grounds are not available grounds of appeal or are of such generality and so wanting in particularity that they are impossible to assess. The complaint about the Magistrate's construction of Order 36 of the Federal Court Rules was rejected by Tracey J in Maher v Commonwealth Bank of Australia [2007] FCA 560 at [9] . 9 There is no material before me to support the claim that the Magistrate denied the applicant procedural fairness. 10 The complaint that the respondent's demand for payment should have been on behalf of all parties jointly entitled to costs, and that each should have been named in the notice for that purpose, was dealt with by the Magistrate at [32] to [35] of his reasons. On the evidence before him the Magistrate found that the respondent was authorised to collect all of the costs on behalf of the other parties.


case_title: Skyring v Sweeney [1999] FCA 61

case_text: The word "oppressive" is used in this area to describe an application for security that is used merely to deny an impecunious applicant a right to litigate. See Jianshe Southern at [27]. As a general rule poverty is not a bar to a litigant at first instance. However the position is different as to appeals. In Skyring v Sweeney [1999] FCA 61 at [6] Spender J said: Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. See also Moore v Macks [2007] FCA 509 at [20] to [21].


case_title: Moore v Macks [2007] FCA 509


case_text: The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_title: Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476


case_text: The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law. 21 The appellant submitted that the Tribunal made jurisdictional errors of the kind described in Appellant S395/2002 . His counsel submitted that the applicable principles were summarised by the Full Court (Sundberg, Marshall and North JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 (' VWBA' ), where Sundberg and North JJ said at [6] that Appellant S395/2002 stands for three propositions (references omitted): '(a) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal's task is to assess what the applicant will do, not what he or she should do. (b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. (c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.' 32 In Appellant S395/2002 , the High Court considered the obligation of the Tribunal to consider a behaviour modification claim that had not been specifically articulated by the applicant. McHugh and Kirby JJ said at 488-489 [39]: 'On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of applicants or the Minister cannot narrow the Tribunal's jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law. Given that the appellants claimed that Bangladesh was "not a safe place for [them] at all" and that they had a "real fear of persecution", the Tribunal was entitled to go beyond examining whether the appellants faced persecution because of their personal history. Notwithstanding that it rejected the particular claims of the appellants, it was entitled to investigate the matter more fully and determine whether the appellants' more general fear of persecution was well-founded. Rejection of an applicant's specific claims of persecution and the failure to identify other forms of harm provide a reason for holding that the applicant had no fear of persecution. But that is all. In the present case, for example, although the appellants did not raise any issue of modifying their behaviour because they feared persecution, it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did. If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide whether the appellants had a well-founded fear of persecution.' 33 It is clear from a reading of the judgment in Appellant S395/2002 that a behaviour modification claim had not been expressly raised before the Tribunal in that case. Nonetheless, the majority held that the Tribunal had fallen into jurisdictional error by not properly considering a behaviour modification claim that emerged from the evidence or the Tribunal's evaluation of that evidence. McHugh and Kirby JJ held that the Tribunal itself had opened up the issue by its examination of the general issue of homosexuality and persecution in Bangladesh, and by its specific finding that the appellants would not be persecuted if they acted discreetly in the future: at 488-489 [38]-[39] and at 493 [53]. 36 The dissenting judgments in Appellant S395/2002 confirm that the appellants in that case had not expressly raised a behaviour modification claim before the Tribunal. Gleeson CJ said at 481-482 [12]: 'It was never part of the claim advanced by the appellants to the Tribunal that the persecution they had experienced in the past, and apprehended in future, took the form of repression of behaviour about which they desired to be more open, and that they escaped harm only by concealing their relationship. If such a claim had been made, it would have raised factual and legal questions beyond the scope of the case put to the Tribunal.' In his Honour's view, the appellants' argument that the Tribunal had not properly addressed the behaviour modification issue took the Tribunal's reference to discreet behaviour entirely out of context. 37 The other dissentients, Callinan and Heydon JJ, expressed similar views in their joint judgment at 513-514 [113]: '... In large measure they were not believed. If they had wished to, the appellants could have advanced a claim that their decision to live as they had been living and would live on their return to Bangladesh was influenced by a fear of harm if they did not; or that persons for whom the government of Bangladesh is responsible induce or inculcate a fear of harm in those living openly as homosexuals; or that they are at risk of suffering serious harm constituting persecution if they wished to display, or inadvertently disclosed, their sexuality or relationship to other people. They did not advance any claims of this kind beyond those connected with the factual accounts advanced by them to the Tribunal and rejected in large measure by the Tribunal. The Tribunal accordingly did not err in not dealing with them.' 38 In my view, it is a natural consequence of the inquisitorial process, to paraphrase Merkel J, that the Tribunal must consider the case that arises from the evidence before it, regardless of how that case is specifically put by the applicant. While the authorities make it clear that the Tribunal is not required to make the applicant's case, it is bound to consider a case on a basis not articulated by the applicant if it is raised by the evidentiary material that is before the Tribunal or by the Tribunal's findings based on that evidence. It is a not an obligation that can be discharged simply by reference to the terms in which the applicant articulates his claim. 39 On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal's findings or conclusions. For the purposes of this case, it is unnecessary to explore the boundaries of the Tribunal's role any further. But it is important to recognise that in each type of case, regardless of what is put by the applicant or the Minister, the Tribunal must ask itself the right question - whether the applicant has a well-founded fear of persecution for a Convention reason. Where the material before the Tribunal, or the Tribunal's own findings or reasoning process, indicates that the applicant has modified or would modify his or her behaviour if returned to the country of citizenship, the question must be asked why the applicant would do so: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 489 [39] and per Callinan and Heydon JJ at 503 [88]. 40 The appellant's claim was based on evidence that he was involved in anti-government activities in Burma, albeit at a level that probably would not have generated significant government attention aside from the specific incidents mentioned. It was also based on evidence that he has been significantly involved in such activities in Australia. This evidence was accepted by the Tribunal. The Tribunal also accepted evidence to the effect that the Burmese Embassy in Canberra was interested in its citizens in Australia, and it was possible that the appellant's activities in Australia might have been recorded by Burmese officials. Further, the Tribunal accepted evidence that the appellant may be questioned about his activities in Australia on his return to Burma, and that he could be watched for a period after returning. However, it did not accept that this kind of surveillance amounted to persecution. Specifically, the Tribunal considered that the appellant's anti-government activities, both in Burma and subsequently in Australia, would not have the consequence that Burmese authorities would regard him as a significant or high profile activist. The Tribunal accepted general country advice from DFAT which it interpreted to mean that only 'active and high profile' demonstrators would be targeted, and perhaps persecuted, by the authorities on their return to Burma. 41 The Tribunal found that the appellant would not face persecution on return to Burma because it was satisfied that the appellant, who knows and understands the political situation there and who does not have a record of consistent political activity in Burma, will not act in such a way as to bring himself to the adverse attention of those authorities. In my view, as the appellant submitted, this finding recognises that the appellant had modified his behaviour in the past because of his knowledge of the Burmese political situation and was likely to do so on his return to Burma. It is difficult to reach any other conclusion when one considers the evidence before the Tribunal. The effect of that evidence, which the Tribunal accepted, was that the appellant's activities in Burma, and his activities subsequently in Australia, had brought him to the adverse attention of Burmese authorities. 47 See also McHugh J at 8-10 [27]-[31] and 11-12 [38]-[39], and Kirby J at 16 [58]-[59]. In order to decide this appeal, however, it is not necessary for me to say anything further about this issue. 48 The conclusion I have reached is that the Tribunal raised the issue of whether the appellant had modified his behaviour to avoid persecution, and indeed implicitly recognised that he had done so. Accordingly, it was obliged to specifically address the merits of that claim in its decision. It did not do so. Indeed, the Tribunal did not address the scenario of what will happen to the appellant if he returns to Burma and engages in anti-government activity because it made the assumption that he will not act in that way. 49 There is clear authority that the Tribunal's failure to consider a behaviour modification claim of the kind that arose in this case amounts to jurisdictional error: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 493 [51] and 493 [53], and per Gummow and Hayne JJ at 500 [80] and 503 [88]-[89]; see also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287. 50 To address the behaviour modification claim properly, the Tribunal had to address a range of questions. So much is indicated by the following passage from the judgment of McHugh and Kirby JJ in Appellant S395/2002 at 493 [53]: 'The Tribunal's findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants' "discreet" behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants' claims that they had a "real fear of persecution" if they were returned to Bangladesh.' 51 The issue is why the appellant would modify his anti-government activities to avoid coming to the attention of the Burmese authorities. More specifically, the critical question is whether the appellant, knowing and understanding the political situation in Burma, would modify his behaviour because that was seen to be a means of avoiding persecution for a Convention reason. In the present case, to borrow and adapt the language used in Appellant S395/2002 , the Tribunal was diverted from addressing the fundamental question of whether the appellant has a well-founded fear of persecution by its conclusion that he was likely to live in Burma in a way that would not attract adverse attention. The Tribunal failed to give proper attention to what might happen to the appellant if he lived 'openly' in Burma, in accordance with his convictions and political beliefs.