case_outcome: cited

case_text: Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).


case_text: The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.


case_title: Colgate Palmolive Co v Cussons Pty Ltd (1993) 47 FCR 225


case_title: Dais Studio Pty Ltd v Bullett Creative Pty Ltd [2008] FCA 42


case_text: The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ... See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15] .


case_text: I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . His Honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a Calderbank letter. His Honour was invited to depart from that line of first instance authority. However he was not prepared to say it was clearly wrong. Notwithstanding that, in the circumstances of the case he had to decide, his Honour found that: The fact that the offer gave no indication at all of the breakdown ... between the claim, interest and costs blunts significantly the weight to be given the offer. 35 While respecting the general approach to rolled up offers reflected in the cases to which Finn J referred, such approaches cannot be calcified into rules of law which fetter a general discretion. They simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. There may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs.


case_title: John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201


case_text: On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement that it be "unreasonable". Given the evaluative character of the judgment involved the addition of the word "plainly" which is itself evaluative, has no useful function. 37 At the time that Sirtex made its offer to UWA the prospect of UWA succeeding against Sirtex depended critically upon: 1. UWA establishing its case against Dr Gray and, in particular, that he had breached his fiduciary duty. 2. UWA establishing that Sirtex was accessorially liable in relation to that breach, a position that depended upon establishing that Sirtex was aware of facts constituting (and which would have indicated to a reasonable person) the breach of fiduciary duties owed by Dr Gray to UWA. 38 It cannot be said that UWA acted unreasonably in proceeding on the basis that it had a reasonable cause of action against Dr Gray. True it is that the case as framed and presented depended upon an important proposition of law as to the existence of an implied term in the contract of Dr Gray's employment with UWA. But the correctness of that proposition had not previously been tested in Australia in circumstances of the kind which arose in this case. This is not a case, in my opinion, in which it is appropriate to take a hindsight test to the facts known to UWA at the time of Sirtex's offer and conclude that it ought to have known that the law was against it. 39 There were of course other hazards in the way of UWA's path to success against Dr Gray and therefore against Sirtex. The question whether the relevant inventions were made while Dr Gray was an employee of UWA was one issue upon which findings adverse to UWA were made on all but the DOX-Spheres technology. There was also a finding adverse to UWA that none of the Sirtex directors, apart from Dr Gray, were on notice of a potential claim. To establish any cause of action against Sirtex based on knowing involvement in his alleged breaches of fiduciary duty would have depended entirely upon his role as a director of Sirtex and whether his knowledge could be attributed to that company. In addition, UWA faced substantial defences by Sirtex based on UWA's delay in commencing proceedings after it first became aware of the facts relevant to its claimed causes of action. 40 The preceding factors may be seen as weighing to some degree in favour of the Sirtex motion. On the other hand the offer came as the trial commenced. That is a factor, given the focus on the trial process which would then have existed, that militates against a finding of unreasonableness on the part of UWA in refusing the offer. That conclusion is not affected by the fact that Sirtex was making a counter-offer. The counter-offer was not a variation on a theme opened by UWA's offers. It was quite different and could have been proposed earlier.


case_outcome: applied

case_text: recent decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 clarifies this issue. Gleeson CJ and Crennan J (at [19]), after referring to various cases dealing with the grant of interlocutory injunctions in cases of defamation, formulated the general principles governing the grant of such relief in the following terms: "in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction."


case_outcome: followed

case_text: Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition. Had it not been for the fact that there will be a speedy trial of this matter, which Stone J regarded as a relevant consideration in Hexal v Roche (at [78]), I might have been inclined to grant some, at least, of the orders sought by CSL. I will give the parties an opportunity to be heard in relation to the matter of costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 3 October 2006 Counsel for the Applicant: Mr B.N. Caine SC and Dr W.A. Rothnie Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: Mr P.W. Collinson SC and Ms H.M.J. Rofe Solicitor for the Respondent: Deacons Date of Hearing: 22 September 2006 Date of Judgment: 3 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1301.html


case_text: Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition.


case_text: quia timet proceedings, the court will have regard to the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518 Isaacs J observed (at 539): "The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a clear case of illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for." Dr I C F Spry, in Equitable Remedies (2001, 6 th ed), comments (at 378) that quia timet injunctions are not granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court's intervention. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail him or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate. There is some debate as to whether a greater degree of proof is required in a case involving interlocutory quia timet relief than in a case involving a different kind of injunction. The issue is discussed in Meagher, Gummow & Lehane (at [21-395]), and need not be further canvassed here. It is sufficient to note that, in many cases, it may be more difficult to prove that an apprehended injury will occur than it is to prove that an existing injury will continue.


case_text: It was not suggested in this proceeding that, so far as a Commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. That usual position was expressed by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668 , at 676 to be as follows: Generally speaking, when a cheque is given in payment of a debt, it operates as a conditional payment. The payment is subject to a condition that the cheque be paid on presentation. If it is dishonoured the debt revives. Although it is sometimes said that the remedy for the primary debt is suspended, the suspension is no more than a consequence of the conditional nature of the payment: Tilley v Official Receiver in Bankruptcy [1960] HCA 86 ; (1960) 103 CLR 529 , at pp 532-533, 535-536, 537. The condition is a condition subsequent so that, if the cheque is met, it ranks as an actual payment from the time it was given. Subject to non-fulfilment of the condition subsequent, the payment is complete at the time when the cheque is accepted by the creditor: Thomson v Moyse (1961) AC 967 , at p 1004. 14 It was submitted for the Deputy Commissioner that, in the events which had transpired in this case, that usual position had been altered by the signification by the Deputy Commissioner that he would agree to the dismissal of the winding up application once the proceeds of the cheque had been cleared. It seems to me though that the evidence is more consistent with the Deputy Commissioner's adopting a position which was in accordance with the general position when a cheque is given in payment of a debt. It has been accepted subject to a condition that the cheque would be paid on presentation. Subject to the fulfilment of that condition, payment of the then outstanding amount of the debt due to the Commonwealth and payable to the Commissioner was complete upon the acceptance by the Deputy Commissioner on 10 November 2008 of the cheque then proffered on behalf of Ganter. In this regard, the fact that the proffered cheque was a bank cheque may well have provided a degree of comfort to the Deputy Commissioner in deciding to accept it, but the position would have been the same in law so far as the relationship of debtor and creditor was concerned had the cheque concerned been one where the drawer was other than a bank.


case_text: Strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. Subject to some particular contractual or statutory provision, the only forms of legal tender remain Australian notes or, subject to the limits specified, Australian coins see s 36 of the Reserve Bank Act 1959 and s 16 of the Currency Act 1965 respectively. However, in general trade and commerce, as Mason J observed in George v Cluning (1979) 53 ALJR 767 (note) by reference to Canadian authority, a payment by cheque can amount to sufficient payment if not objected to on that account. In this case there was no objection made by the Deputy Commissioner on account of Ganter's endeavouring to settle its indebtedness by the tendering of a cheque only, as I have noted a signification that it was accepted subject to a condition that the cheque would be paid on presentation


case_title: Australian Mid-Eastern Club Limited v Yassim (1989) 1 ACSR 399

case_text: None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J.


case_text: None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement. 22 The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised. 24 In their submissions the solicitors for the company pointed to the observation made by Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [8]), "With trading companies the existence of a winding up proceeding is a very serious inhibition and has very serious impacts". I respectfully agree. That is one reason why it behoves a company which wishes to keep trading to pay its debts as they fall due or at least later to comply with the terms of a statutory demand. It is also a reason why, all other things being equal, a Court would be disposed, as a matter of discretion, to dismiss a winding up application if satisfied that the debt owed to the applicant creditor had been paid. Another consideration not to be ignored is the protection of the revenue. Yet another consideration is that Ganter, by its solicitors, initially agreed with the Deputy Commissioner's proposal that on 13 November 2008 the adjournment of the application for one week ought to be sought. A further consideration is the public interest in whether a company which is presumed to be insolvent ought to be permitted to continue to trade or whether it ought to be wound up. 25 Ganter's change of heart as to the course which ought to be taken on 13 November 2008 seems to have been multi-factorial in origin. Inferentially from the submissions made to me and to the District Registrar it was founded upon what I regard as the misapprehension that the payment of an applicant creditor's debt obliged the Court to dismiss a winding up application, as opposed to that being a factor going to discretion. Likewise, it seems to have been grounded on the belief that the acceptance of the bank cheque by the Deputy Commissioner extinguished the debt then and there, as opposed to so doing upon the fulfilment of the condition subsequent of the cheque's being cleared. Further, it seems to have been grounded upon the belief that, the cheque payment having been recorded as a credit on 11 November 2008 in its accounts, the Deputy Commissioner was obliged, as a "model litigant" to agree to the dismissal of the winding up application on 13 November 2008. 26 This, with respect, misapprehends the obligation that falls on those representing the interests of the Crown in civil litigation. One of those interests, and it is a vital interest, is the protection of the revenue. The Deputy Commissioner would certainly have failed in his duty to the Court as a model litigant had the acceptance of the cheque and the terms upon which it had been accepted not been drawn to the Court's attention on 13 November 2008. It was. Especially as matters then stood as to the clearing of the bank cheque and the Deputy Commissioner's knowledge as to the practice of the NAB in relation to the circumstances in which it would not meet a bank cheque and the time within which any such disposition on the part of the bank would usually be signified, it was not unreasonable for the Deputy Commissioner to resist the dismissal of the application that day. The position then to take was a matter for the value judgement of the Deputy Commissioner in the circumstances in the administration of the taxation laws. The entry in the accounts of the ATO had no more than a provisional quality about it.


case_title: Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126 ; (1994) 116 FLR 314; (1994) 14 ACSR 580

case_text: The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised.


case_text: Assuming that the Deputy Commissioner ought presently to be regarded as an applicant whose debt has been paid, it does not, with respect, seem to me to follow that the application must therefore necessarily be dismissed. In his judgment in Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177 , at 194-195, Menzies J, in what is strictly an obiter dictum , opined: In the course of argument upon this appeal, reference was made to the consequence of a petitioning creditor being paid off between the presentation of the petition and the making of an order. That circumstance would not, in my opinion, put an end to the petition nor would it affect the jurisdiction of the court to hear and determine the petition although, of course, in such circumstances proceedings might not be continued and, if they were, the court could, in the exercise of its discretion, refuse to make a winding up order upon the petition of a person not then a creditor. In that same case, Barwick CJ (at 179) also seems to have been of the view that, under the then statutory regime for the winding up of a company, the date for the determination of whether a petitioner was a creditor was the date of presentation of the winding up petition. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement.


case_outcome: referred to

case_text: am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 ( Appellant S395/2002 ). The appellants are Bangladeshi nationals. They came to Australia, arriving on 19 February 1999. They sought protection visas on 4 March 1999, claiming that they were homosexuals who had lived together as a couple since 1994, and that they had been subjected to persecution in Bangladesh because of their homosexuality. A delegate of the Minister for Immigration and Citizenship found, on 23 April 1999, that the applicant born on 1 July 1973 (NAOX, or the younger Bangladeshi), was a "citizen of Bangladesh", accepted "as plausible the applicant's claim that he is a homosexual", but was "unable to accept there is a real chance that he will be persecuted on that ground in Bangladesh". The delegate said: In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters. It is important to have regard to the issues before the High Court in Appellant S395/2002 : The [first] Tribunal accepted that the appellants were homosexual, and that homosexual men in Bangladesh are a particular social group for the purposes of the Convention Relating to the Status of Refugees , as amended by the Protocol relating to the Status of Refugees , as amended by the Protocol relating to the Status of Refugees 1967. However, the Tribunal rejected most of the claims made by the appellants as to the persecution they had suffered in Bangladesh, including claims that they had experienced threats and violence over many years. It found that they had not in the past suffered serious harm by reason of their homosexuality, observing that they had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". Further: The [Tribunal] rejected their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal rejected most of their individual claims, but accepted that it was not possible to live openly as a homosexual in Bangladesh. It found, however, that the applicants had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution. All the members of the High Court held that the (first) Tribunal: ... had not imposed a requirement that the applicants live discreetly if they returned to Bangladesh. It had made a finding of fact that they would live discreetly. That finding did not itself involve error.


case_text: is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel.


case_title: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374


case_text: J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 said, at [67]: ... a finding as to whether the prosecutor should be believed in his claim a finding on credibility ... [is] the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.


case_text: I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861.


case_text: J, as he then was, said in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 , at 77: There is no error of law simply in making a wrong finding of fact. A finding, which purports to be a finding of fact, is not rendered immune from judicial examination, if it is not made in good faith, but for an ulterior purpose: in this case, in the light of the remittal to the Tribunal by the High Court, to "get around" the factual findings that had earlier been made, in the enquiry as to whether the appellants were entitled to the issue of protection visas. Whether the decision of the third Tribunal be regarded as unreasonable in the Wednesbury corporation sense, or on the basis that the decision was not made in good faith, or on the basis that there was a lack of impartiality in the fact-finding process, the decision of the third Tribunal has to be set aside.


case_title: Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ASCR 157


case_outcome: related

case_text: On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.


case_title: Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028


case_title: Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328


case_text: On 30 March 2006 Siopis J made interim orders restraining the defendants from removing any of their property from Australia or from otherwise dealing with it except to the extent set out in the order. He also directed the surrender of their passports. His Honour published his reasons for those orders on 5 April 2006 Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366. 16 On 7 April 2006 I made orders extending the operation of the interim injunctions granted by Siopis J (subject to some undisputed variations) until 5pm on 12 April 2006 which was the date set down for the hearing of the substantive application. Following the hearing of the substantive application those orders were further extended to 5pm on Thursday 20 April 2006 subject to further agreed variations. Judgment on the substantive application was reserved to 2.15pm on Thursday 20 April 2006. 17 There was an application made on behalf of the second defendant for an order setting aside the ex parte orders made by Siopis J on the basis that there had not been full disclosure by ASIC of relevant evidence to the Court. The second defendant submitted that ASIC's evidence predominately related to transactions involving other defendants which were not relevant to the second. I am not satisfied that any material non disclosure is shown. In any event the interim freezing orders lapse today.


case_text: There is a variety of ways in which the interests of persons, to whom liabilities may be owed, can be protected by orders made under the section. The nature of the protection can vary according to the nature of the risks assessed. As Palmer J said in ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530 at [37]: '... there may be evidence to suggest that fraud has been perpetrated on a large scale and that many of the victims have no or little information about the extent of the fraud, no or little means for their own investigations, and no or little resources to prosecute their own claims. In such a case, the interests of such persons are protected, within the contemplation of s 1323, by enabling ASIC to conduct an investigation for the purpose of identifying the wrongdoers and exposing them not only to penalties under the Corporations Act and other legislation, but also to claims for compensation from the victims themselves.' `


case_title: CAC v Lone Star Exploration NL (1988) 14 ACLR 499

case_text: The orders that can be made under the section are directed, inter alia, to the preservation of assets against which recovery may be sought in the event that liability to an 'aggrieved person' is established on the part of a 'relevant person'. The orders are made in circumstances where 'an investigation is being carried out', 'a prosecution has been begun' or 'a civil proceeding has been begun'. That is to say the orders can be made before liability is established and indeed before the evidence necessary to establish liability has been collected. While an application under the section is not interlocutory in an existing criminal or civil proceeding, it is interlocutory in a wider sense. It preserves the status quo and the assets of the relevant person pending the outcome of the investigation, prosecution or civil proceedings which are on foot CAC v Lone Star Exploration NL( No 2) (1988) 14 ACLR 499 at 504. At the stage an order is sought the Court may not be in a position to identify with precision any particular liability owed by the person the subject of the proposed order. This consideration applies to final orders made under the section as well as to interim orders for which it expressly provides in s 1323(3). The final orders made under the section are necessarily of a temporary or holding character rather than finally disposing of the rights and liabilities of the relevant persons affected by them.


case_text: The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investment Commission v Adler (2001) 38 ACSR 266 at [7] (Santow J).


case_title: Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266


case_title: ASIC v Burke [2000] NSWSC 694

case_text: It is not a necessary consequence of an order appointing a receiver that the receiver should deal with or liquidate the assets in question. The interlocutory and protective character of orders made under s 1323 must be borne in mind when defining the powers of the receiver. The appointment of a receiver has rightly been described as 'an extraordinary step' ASIC v Burke [2000] NSWSC 694 at [8] (Austin J). However depending upon the nature of the powers conferred on the receiver it may be less drastic than a freezing order which can only be varied by order of the Court. The interlocutory history of this case has already demonstrated that circumstances not contemplated when the original interim freezing orders were made have required their variation from time to time. I accept, with respect, the observation made by Austin J in Burke at [8]: 'Without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though Mareva Orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any Mareva Orders must allow assets to be turned over in the course of business. Where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the Court may conclude ...that the Mareva Orders are not enough to ensure that the assets are preserved and protected, and indeed identified and brought in for the benefit of investors.' The decision was cited with approval by Santow J in ASIC v Adler (supra) at 268-269. 30 Section 1323 does not make any express provision for the nature of the evidence on which the Court may act in making orders under it. Applications made under the section have an interlocutory character albeit there are no other specific proceedings to which they may relate. The section does not require concluded findings of fact about liability or whether assets have been dissipated. For the reasons already canvassed the Court, in making orders under s 1323 , engages in a risk assessment and management process. The logic of the section assumes that the Court will not always have before it evidence of the kind that would be necessary and admissible in proceedings to establish definitively the nature and extent of the assets of the persons under investigation and their liability to aggrieved persons. Nor will it necessarily have before it evidence of the kind that would establish definitively that dissipation of assets has occurred or is likely to occur or that flight is imminent. 31 The logic of s 1323 requires the Court to be able to act on evidence which might not be admissible in civil or criminal proceedings leading to a definitive determination of the rights and liabilities of the parties. Hearsay evidence may therefore be received and acted upon, not as proof of the truth of its content but as evidence of the existence of a risk or possibility that gives rise to the necessity for or desirability of a protective order. It is not necessary, in this context, to consider whether the proceedings are interlocutory for the purposes of the exception to the hearsay rule under s 75 of the Evidence Act 1995 (Cth) albeit that that exception is no doubt informed by similar considerations. Evidence may be received of the opinion of a suitably qualified person who has had the opportunity to review extensive documentation collected in the course of an investigation and to offer an overview of it for the benefit of the Court. In such a case the opinion or overview should be supported by reference to the relevant documentation and factual material. The opinion is received not for the determination of any ultimate issue of liability but as probative of the risk which the Court must assess in determining whether to make an order under the section. These considerations are relevant to the admissibility of some of the affidavit evidence which has been relied upon in this case. 32 Specific objection has been taken on behalf of the second defendant to the use of transcripts of examinations conducted under s 19 of the ASIC Act. It was submitted that pursuant to s 68(3) of the ASIC Act such transcripts are not admissible in evidence against the person who has signed the record in a proceeding for the imposition of a penalty. It was submitted that the present proceedings are, in truth, proceedings for the imposition of a penalty. This is on the basis that if interlocutory in nature, then they are interlocutory in respect of proceedings not yet commenced but which will inevitably be penalty proceedings. 33 Accepting that there is a possibility that penalty proceedings may be taken against one or more of the defendants in this case that does not, in my opinion, render the present application an application for the imposition of a penalty or an application incidental to such proceeding. As already noted, evidence may be relied upon of a hearsay or opinion character in these proceedings which might not be admissible in penalty proceedings. The same is true for s 19 transcripts. 34 It was submitted for the second defendant that because ASIC seeks an order that the reasonable costs of the receivers and managers whose appointment it seeks should be payable from the collective assets of the defendants, that fact itself gives the present application the character of a penalty proceeding. In my opinion however, the submission is misconceived. An order for the payment of costs out of the collective assets of the defendants would not of itself amount to the imposition of a penalty. Although it may effectively deprive defendants of some of their property that imposition is not by way of punishment for any contravention of the law. 35 Objection was also taken to the admissibility against the second defendant of transcripts of examinations of other parties conducted under s 19 of the ASIC Act. In this respect s 77 of the ASIC Act was relied upon. That section provides: 'Where direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter: (a) if it appears to the court or tribunal that: (i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or (ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or (iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or (b) if it does not so appear to the court or tribunal unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.' It was submitted for the second defendant that ASIC has not adduced evidence in respect of the matters set out in s 77(a) and that therefore the s 19 transcripts of those parties that are not parties to the proceeding may only be tendered if the conditions set out in par (a) are set out. Counsel for ASIC on the other hand submitted that the second defendant had not required ASIC to call any absent witness as a witness in the proceeding and that therefore the condition of admissibility under s 77(b) of the Act was satisfied. Given the urgency with which the application has been made, it is perhaps a little unrealistic to require advance notice by the second defendant of the requirement that any absent witness whose s 19 transcript is relied upon be called as a witness in the proceeding. In my opinion, however, the transcripts of the examinations conducted under s 19 can be relied upon as tending to establish the possibility that circumstances exist which give rise to the necessity or desirability of a protective order. What is in evidence here is the fact that the statement was made in the course of a s 19 examination. The fact that the statement was made, rather like the hearsay evidence referred to earlier, may support an inference that circumstances exist that make a protective order necessary or desirable. It is not necessary to rely upon such evidence for the purpose of establishing the truth of the statement made.


case_outcome: considered

case_text: In Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at 574 (" Pegasus "), Davies AJ addressed the question whether the sole director of the company which promoted and operated a managed investment scheme should also be considered to be a person operating the scheme. His Honour said at [55]-[57]: "The word 'operate' is an ordinary word of the English language and, in the context, should be given its meaning in ordinary parlance. The term is not used to refer to ownership or proprietorship but rather to the acts which constitute the management of or the carrying out of the activities which constitute the managed investment scheme. The Oxford English Dictionary gives these relevant meanings: 5. To effect or produce by action or the exertion of force or influence; to bring about, accomplish, work. 6. To cause or actuate the working of; to work (a machine, etc). Chiefly U.S. 7. To direct the working of; to manage, conduct, work (a railway, business, etc); to carry out or through, direct to an end (a principle, an undertaking, etc) orig. U.S. I have concluded that Mr McKim operated the managed investment scheme. He was the living person who formulated and directed the scheme and he was actively involved in its day to day operations. He supervised others in their performance. I have also concluded that Mr McKim is not exempted by s601ED(6). He did not 'merely' act as agent or employee of Pegasus. He was the directing mind and will of Pegasus and of the scheme." 35 Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was actively involved in its day to day operations as the directing mind and will of the company managing the scheme. Accordingly, he was operating the scheme in contravention of s 601EB(5). In making these findings, Mansfield J approved the passage in Pegasus to which I have referred. 55 Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110. 77 ASIC does not seek an order that BTS be wound up, even though there is some evidence that it might be insolvent. In many cases, it may be appropriate, and it may further investor protection, to make winding up orders in respect of both the unregistered managed investment scheme and the company which administered the scheme: see Pegasus at 579-580, at [95] [98]. Indeed, in Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778 at 796, Owen J said at [93] that if an unregistered scheme is to be wound up, the case for a liquidation of the company that conducted it is compelling.


case_text: Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was actively involved in its day to day operations as the directing mind and will of the company managing the scheme. Accordingly, he was operating the scheme in contravention of s 601EB(5). In making these findings, Mansfield J approved the passage in Pegasus to which I have referred. 74 In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488) but also 'ensuring the transparency of the winding up process and the safeguarding of the rights of the contributories' by committing the winding up to an independent party ( Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 ; BC200202989 per Wilson J; see also Australian Securities and Investments Commission v Product Management Group Pty Ltd (2002) 42 ACSR 343)."


case_text: Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.


case_title: Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56


case_title: Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68


case_text: In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ said that superior courts have inherent power to grant declaratory relief. Their Honours added that it is a discretionary power which it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise, although it must be recognised that it is a power confined by the considerations which mark out the boundaries of judicial power. In the same case, Brennan J emphasised that the making of a declaration, and the terms in which it is to be made, are in the court's discretion: at 596.


case_title: Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121

case_text: Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.


case_title: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596


case_title: Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114


case_title: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80


case_text: Section 1324 permits the Court to grant an injunction "on such terms as the court thinks appropriate". These words echo the concluding words of s 80(1) of the Trade Practices Act 1974 ("TPA") which state that the Court may grant an injunction in such terms as the Court determines to be appropriate. These words were introduced into s 80(1) by a 1983 amendment to the TPA, which, to adapt the language used by French J in OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 at 508, freed the power conferred by s 80 from the previous constraint that the injunction granted under it must restrain a person from engaging in conduct that constitutes or would constitute a contravention of Part IV of Part V of the TPA or one of the species of accessorial participation there listed. 67 French J said that s 80 was a widely drawn remedial provision which was available to restrain conduct which may infringe upon the public interest by contravening the provisions of the TPA in Part IV and Part V. His Honour added at 268: "There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. The possibility remains open, by virtue of s 80(3) , that after a suitable period unmarked by further contravention the party restrained may apply to the court to rescind the order. The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act . This was a proper case for the grant of that relief."


case_text: The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. After referring to subss 80(4) and (5), Lockhart J said: "Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46) , the practice of exclusive dealing (s 47) , resale price maintenance (s 48) , price discrimination (s 49) , anti-competitive mergers (s 50) and unfair practices with respect to consumers (Pt V). These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society." In his Honour's view, the section would in an appropriate case authorise the Court to grant an injunction against a respondent preventing him in engaging in conduct which is similar to the conduct which constituted, or would constitute, a contravention of the Act : at 261. Lockhart J also agreed (at 261) with the reasoning of Barwick CJ in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 at 632 that in an appropriate case the court may grant an injunction to restrain the respondent from engaging in the practice of resale price maintenance notwithstanding that only some of the acts falling within s 96(3) were found to have been so committed. 68 In ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 at [D]-[E], after referring to these passages in ICI , Merkel J said: "The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However there are limitations on the Court's power under the section. Confinement of the power by reference to the scope and purpose of the TPA, and in particular s 80 , is one limitation on the power. However, there are at least two further limitations. The power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of Pt IV , IVA or V of the TPA. As was said by Gummow J in ICI at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has 'the relationship required by s 80 with contravention of the Act . Irrespective of whether the injunction is sought or granted under s 80(1) or 80 (1AA) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted." 70 Most recently, in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 , a Full Court (comprising Ryan, Finn and Allsop JJ) noted the apparent tension between the view expressed by Lockhart and Gummow JJ in ICI . Their Honours said at [30]-[31]: "His Honour's reference to terms having 'an operation outside the boundaries of s 80 ' is no more than a paraphrase of the actual words of the subsection 'such terms as the Court determines to be appropriate.' That paraphrase, we consider with respect, does not illuminate the amplitude which should be given, as a matter of construction, to the grant of power. In our view, a more helpful guide to resolving the question of construction is afforded by this observation, also from ICI v Trade Practices Commission , of Lockhart J (with whom French J agreed) at 256; 'In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pt IV or V of the Act ), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.' This approach of Lochkhart J accords with the view often expressed by the High Court that discretions or powers entrusted to Courts should be read liberally for the relevant statutory purpose, without making implications or imposing limitations not found in the express words: Australian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at [77] and see generally for the cases Hewlett Packard v GE Capital [2003] FCAFC 256 ; (2003) 203 ALR 51 at [187] ." Thus, the Full Court preferred the wider view described by Lockhart and French JJ in ICI to the narrower view which the appellant in Foster sought to found upon the judgment of Gummow J.


case_text: The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. After referring to subss 80(4) and (5), Lockhart J said: "Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46) , the practice of exclusive dealing (s 47) , resale price maintenance (s 48) , price discrimination (s 49) , anti-competitive mergers (s 50) and unfair practices with respect to consumers (Pt V). These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society." In his Honour's view, the section would in an appropriate case authorise the Court to grant an injunction against a respondent preventing him in engaging in conduct which is similar to the conduct which constituted, or would constitute, a contravention of the Act : at 261. Lockhart J also agreed (at 261) with the reasoning of Barwick CJ in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 at 632 that in an appropriate case the court may grant an injunction to restrain the respondent from engaging in the practice of resale price maintenance notwithstanding that only some of the acts falling within s 96(3) were found to have been so committed.


case_text: In ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 at [D]-[E], after referring to these passages in ICI , Merkel J said: "The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However there are limitations on the Court's power under the section. Confinement of the power by reference to the scope and purpose of the TPA, and in particular s 80 , is one limitation on the power. However, there are at least two further limitations. The power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of Pt IV , IVA or V of the TPA. As was said by Gummow J in ICI at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has 'the relationship required by s 80 with contravention of the Act . Irrespective of whether the injunction is sought or granted under s 80(1) or 80 (1AA) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted."


case_text: It is implicit in Merkel J's judgment that an injunction under s 80 may extend beyond the specific conduct proven to constitute a contravention by s 80 and may, in appropriate cases, extend to conduct of the same kind or class. There must, however, be a sufficient nexus or relationship between the conduct that is the subject of the restraint and the conduct that was alleged to constitute a contravention of the Act . As French J pointed out in ACCC v Real Estate Institute (WA) [1999] FCA 1387 ; (1999) 95 FCR 114 at 131, the question whether there is a sufficient nexus between the orders sought and the contraventions alleged involves an evaluative judgment by the Court which will depend heavily upon the circumstances of the particular case.


case_outcome: discussed

case_text: Most recently, in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 , a Full Court (comprising Ryan, Finn and Allsop JJ) noted the apparent tension between the view expressed by Lockhart and Gummow JJ in ICI . Their Honours said at [30]-[31]: "His Honour's reference to terms having 'an operation outside the boundaries of s 80 ' is no more than a paraphrase of the actual words of the subsection 'such terms as the Court determines to be appropriate.' That paraphrase, we consider with respect, does not illuminate the amplitude which should be given, as a matter of construction, to the grant of power. In our view, a more helpful guide to resolving the question of construction is afforded by this observation, also from ICI v Trade Practices Commission , of Lockhart J (with whom French J agreed) at 256; 'In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pt IV or V of the Act ), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.' This approach of Lochkhart J accords with the view often expressed by the High Court that discretions or powers entrusted to Courts should be read liberally for the relevant statutory purpose, without making implications or imposing limitations not found in the express words: Australian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at [77] and see generally for the cases Hewlett Packard v GE Capital [2003] FCAFC 256 ; (2003) 203 ALR 51 at [187] ." Thus, the Full Court preferred the wider view described by Lockhart and French JJ in ICI to the narrower view which the appellant in Foster sought to found upon the judgment of Gummow J. 71 The issue in Foster was whether an injunction that restrained the fourth respondent from being directly or indirectly knowingly concerned in the promotion or conduct of a business of a specified kind for a period of five years went beyond the power conferred by s 80 of the TPA. As the Full Court explained, this turned on the existence of a sufficient nexus between a contravention that enlivened the Court's power under s 80 and the conduct that was restrained by the injunction: "In our view, the need, suggested by the authorities, for a nexus between the contravention of the Act which the Court has found and the terms of the restraint which it then decides to impose is a specific reflection of Lockhart J's insistence that the power be exercised 'judicially and sensibly'. It goes to the appropriateness of the relief contemplated by the concluding words of s 80(1) , not to the extent of the power to grant it. If the Court considers that a complete prohibition, whether permanently or for a specified period, on a respondent's engaging in a particular field of commercial activity or industry is required to protect the public from conduct of the kind which constituted the contravention, s 80 is wide enough to support such a prohibition as a matter of power. This analysis of s 80 conforms, we consider, with that recently undertaken by Goldberg J in Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482 at 504 [110]." The Full Court held that there was an appropriate nexus, as the evidence and the trial judge's findings at first instance gave rise to a real fear that the fourth respondent would, unless restrained, commit further conduct of the same general kind. In these circumstances, it was appropriate to cast the injunction more widely in order to catch conduct which was similar to the established contravention: at [34] and [38]. 72 In the present case, I consider that the wider form of injunctive relief is appropriate, especially given the evidence that McDougall attempted to resuscitate the Scheme in another form. The evidence demonstrates, in my view, that the defendants are susceptible to repeating their contraventions of the managed investment provisions of the Act . There is, in my opinion, a sufficient nexus between the wider form of injunctive order sought by ASIC in par 5 of the draft orders, and the contraventions of the Act which were established by the evidence in this case. The wider form of injunction is consented to by the defendants. In all the circumstances, I consider that the wider form of injunction is warranted, and that it will serve the public interest. 73 ASIC seeks orders that the Scheme be wound up pursuant to s 601EE(1) of the Act . A number of ancillary orders are sought, including an order appointing the existing Court appointed receivers as joint and several liquidators of the Scheme. The defendants consent to these orders being made. I have made two minor alterations to the form of the draft orders for the winding up of the Scheme. The first alteration, in par 7, identifies Adrian Lawrence Brown and James Henry Stewart as the receivers appointed by order of Merkel J on 25 October 2005. The second alteration clarifies that the receivers referred to in par 9 are the individuals identified in the above par 7 of the orders.


case_title: Australian Securities and Investments Commission v Takaran Pty Ltd (No 2) (2003) 194 ALR 743

case_text: In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488) but also 'ensuring the transparency of the winding up process and the safeguarding of the rights of the contributories' by committing the winding up to an independent party ( Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 ; BC200202989 per Wilson J; see also Australian Securities and Investments Commission v Product Management Group Pty Ltd (2002) 42 ACSR 343)."


case_text: ASIC does not seek an order that BTS be wound up, even though there is some evidence that it might be insolvent. In many cases, it may be appropriate, and it may further investor protection, to make winding up orders in respect of both the unregistered managed investment scheme and the company which administered the scheme: see Pegasus at 579-580, at [95] [98]. Indeed, in Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778 at 796, Owen J said at [93] that if an unregistered scheme is to be wound up, the case for a liquidation of the company that conducted it is compelling.


case_text: It has been said that s 31A lowers the bar in terms of summary judgment applications. The operation of s 31A was considered by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. I do not think it necessary to enter into the interesting questions of what the particular standard imposed by the new version of s 31A might be. This is because whatever the bar is, the current applications pass well beneath it. That is, I find that they are, despite their creativity, devoid of merit. It follows, in my opinion, that there should be orders under s 31A. That makes it unnecessary for me to consider the operation of Order 20 rule 5 or to consider the operation of Order 11 rule 16 in so far as the statement of claim is concerned. 40 Mr Gargan argued that s 31A was constitutionally invalid. Normally s 78B of the Judiciary Act 1903 (Cth) would impose upon this Court an obligation not to proceed to deal with Mr Gargan's constitutional argument without adjourning the proceeding in order to allow the various Attorneys-General for the States and of the Commonwealth a chance to intervene. However, s 78B operates on constitutional matters. I do not think that a constitutional argument which is completely devoid of merit amounts to a constitutional matter within the meaning of those provisions. To make good that point, it is necessary to take account of what the argument is. 41 The argument is that s 31A operates to "dictate" to the Federal Court what the outcome of the case is. There may well have been an issue if s 31A had commanded the Court to dismiss a proceeding which had any of the qualities described in s 31A(1)(a) or (b). However, the plain text of s 31A is that the Court "may" give judgment. There is simply no room to argue whatever that s 31A operates as a dictation. Accordingly I reject that argument. The necessary consequence is that there must, on both notices of motion, be judgment for the first and second respondents under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).


case_text: Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 , where his Honour dismissed the same argument. I should note for completeness that at [11] Hely J relied upon what Adams J had said in Gargan v Scott (unreported, Supreme Court of New South Wales, 27 October 2003) and I respectfully adopt what Adams J said at [4]. I do not think that the argument based upon s 13 has any substance whatsoever.


case_title: Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45

case_text: Mr Gargan also argued that he had an entitlement to the issue of orders in the nature of mandamus against the Official Trustee. There may be a question in my mind as to whether that kind of right is a right which would vest, or would be property which is capable of vesting, in the Official Trustee. There are decisions of the New South Wales Court of Appeal which indicate that the right to seek mandamus may be a right which vests in the trustee: cf. Daemer v Industrial Commission (NSW) (1988) 12 NSWLR 45 at 54. However, for present purposes, it is not necessary to explore that proposition. On any view, the duties which are capable of being litigated in a mandamus application are duties of a public kind. I do not think that even if the difficulties in s 86 could be overcome by Mr Gargan that the duty thereby created could be described as public duty. Accordingly, I do not think that a case for issue of orders in the nature of mandamus has any prospects of success. 38 It is then necessary to say a little bit about the nature of the applications which are currently before the court. The first is an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) . Section 31A of that Act provides: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section.


case_title: Gargan v Scott (unreported, NSWSC, 27 October 2003)


case_text: However, if authority were needed, the Full Court of this Court has decided in Heinrich v Commonwealth Bank of Australia [2001] FCA 661 that Mr Gargan's argument was unsound. I note that Mr Gargan had some involvement in that case. I refer particularly to [7], [8] and [19]. Nothing in Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 , in my opinion, provides any succour whatsoever to the notion that s 86 imposes affirmative duties. For that reason, I do not think that such a negligence claim, even if articulated, has prospects. In any event, the only real way the claim could currently be formulated would be pursuant to ss 178 and 179 of the Bankruptcy Act 1966 (Cth).


case_title: Heinrich v Commonwealth Bank of Australia [2001] FCA 661


case_text: That operation of s 153B was confirmed by Flick J in this Court in Samootin v Wagner [2008] FCA 1066 at [32] and [33]. His Honour applied what had fallen from Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] : The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCA 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law.


case_text: Fourthly, Mr Gargan relied upon the proposition that the Australian Capital Territory Local Court was a State court and that through various procedural alterations to the jurisdictions of State courts over the last 20 years, they had become unfit receptacles for federal jurisdiction within the meaning of the High Court's decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51 . This argument is without merit. The Local Court of the Australian Capital Territory is not a State court for the purposes of the doctrine in Kable . Even if it were, Mr Gargan did not point to any provisions of the kind at suit in Kable itself which might give rise to the suggested incompatibility. 24 Fifthly, Mr Gargan placed some reliance upon the Common Law Procedure Act 1899 (NSW) which, outside consent matters, gave a right to trial by jury. The short answer is that that Act has been replaced by the Supreme Court Act 1970 (NSW). In any event, any application that Act may have had to Local Court proceedings in Canberra or to Federal Court proceedings before Hely J, remains even now, elusive. 25 Finally Mr Gargan relied upon the notion that he was pursuing a civil penalty within the meaning of the Evidence Act 1995 (Cth). I do not think that argument has any substance. It follows that I do not think that any of the arguments launched against Hely's J sequestration order have any prospects of success.


case_text: As to the annulment of the 1994 bankruptcy, this Court has vested in it, by s 27 of the Bankruptcy Act 1966 (Cth), exclusive jurisdiction in bankruptcy. The meaning of that expression has recently been considered by a Full Court of this Court in the decision of Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172. It is unnecessary for present purposes to determine the precise boundaries of the nature of jurisdiction in bankruptcy. It suffices to observe that an application to annul a bankruptcy pursuant to s 153B lies squarely within the heartland of that jurisdiction. 9 Section 153B provides: Annulment by Court (1) If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy. (2) In the case of a debtor's petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented. 10 It is apparent from a cursory reading of s 153B that there are two elements to it. The first is the satisfaction in the Court of the fact that a sequestration order ought not to have been made. The second is an exercise by the court of a discretionary power if that condition precedent is satisfied.


case_title: Re Gargan; Ex parte Official Trustee in Bankruptcy (unreported, FCA, Kiefel J, 23 August 1996)

case_text: As I understood his submissions, the central proposition was that whilst he accepted he had consented to the making of the sequestration order in 1994, he had done so in circumstances where he was naïve about the operation of the legal system. His admission that the sequestration order had been by consent is recorded in the reasons of Kiefel J in Re Gargan; Ex parte Official Trustee in Bankruptcy [1996] FCA 685 (unreported, Kiefel J, 23 August 1996). Those proceedings involved an earlier attempt by Mr Gargan to annul the bankruptcy. 14 Her Honour recited an affidavit (at [21]) which had been filed by Mr Gargan and which recorded the fact that he no longer opposed the making of the sequestration order. I did not understand Mr Gargan to cavil with that in the course of argument but instead, as it were, he sought to admit and avoid. 15 Notwithstanding his, at times, ingenious submissions, I am not persuaded that the circumstances surrounding the making of the sequestration order in 1994 are such that I could now be satisfied that it ought not to have been made. It seems, therefore, that the power under s 153B to annul the 1994 bankruptcy does not arise. 16 Although it is unnecessary in those circumstances to consider the likely disposition of the exercise of the discretionary power thereby conferred if it had arisen, I should say for completeness, even if the power in s 153B had been enlivened, I would not have exercised the discretion in Mr Gargan's favour. This is because first, it is apparent and indeed accepted, that the sequestration order was not ultimately resisted. Whatever else one might say about that, it provides a powerful discretionary reason, 14 years later, not now to undo it. 17 Secondly and, perhaps, related to the first point, is the fact that there has now been an extensive delay of 14 years. Finally, there is, of course, the fact that a prior application has been made to annul this bankruptcy and has failed. In each of those circumstances, it seems to me that even construing the amended application and statement of claim in the most charitable of fashions, it simply could not be the case that a claim, now to be brought by Mr Gargan to annul the first bankruptcy, would have any prospects whatsoever. 42 The first and second respondents apply for indemnity costs orders in relation to the dismissal which I have just ordered. It seems to me that in the exercise of the costs discretion the following matters are pertinent. First, the current proceeding involves attempts to re-litigate a number of matters which Mr Gargan has extensively litigated in the past and unsuccessfully. Secondly, in relation to the annulment application, he has made at least one prior annulment application before Kiefel J and failed. Thirdly, he has sought to articulate an argument based upon s 86 of the Bankruptcy Act 1966 (Cth), which operation has been determined, to his knowledge, in a contrary way by the Full Court in Heinrich . 43 Finally, I take into account as a matter of overall impression, that this proceeding commenced by Mr Gargan, in common with a number of other proceedings commenced by him, involve what appear on their face sometimes to be engaging, if obscure, legal questions. However, those arguments are rarely thought through to their final conclusion, and despite Mr Gargan's protestation of having studied law for two years, seem to indicate a desire more to be involved in the disposition of clever legal arguments in court rather than any focused attention upon what the consequences of his actions might be in relation to the parties against whom he brings his proceedings. 44 I am particularly mindful of the fact that Mr Gargan is an undischarged bankrupt. The provisions of the Bankruptcy Act 1966 (Cth) are, by and large, directed to preventing the bringing of proceedings of the current kind. Although Mr Gargan articulated various ways in which it might plausibly be thought in some obscure circumstances that the current applications might be brought, I have found that those attempts were wholly unsuccessful and meritless. It seems to me that it is appropriate to mark disapprobation of the bringing of these proceedings by the making of the costs orders sought. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 8 December 2008 The applicant appeared in person. Counsel for the First Respondent: Mr CP Carter Solicitors for the First Respondent: Brock Partners Solicitors Counsel for the Second Respondent: Mr SM Golledge Solicitors for the Second Respondent: Australian Government Solicitor Date of Hearing: 29 October 2008 Date of Judgment: 29 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1718.html


case_title: Samootin v Wagner [2008] FCA 1066


case_text: On this basis, the response of the respondent to the letters of Ms Nicholson-Brown's solicitors was appropriate and adequate. The respondent replied to the complaints of Ms Nicholson-Brown by reference to the policy decision, and did not bring into consideration the specific conduct of Ms Nicholson-Brown as this was not a matter for consideration. It cannot be said, in these circumstances, that the response was inadequate, because on my analysis the matters raised that were not adequately responded to from Ms Nicholson-Brown's point of view, could not have affected the outcome of the decision; see generally Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 267 at 276-277. There was no material which was relevantly taken into account which was not made available to each applicant, as was the case in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. In view of the opportunity provided to and availed by each applicant to respond to the respondent after the suspension decision, the decision-making process, including the respondent's response to Ms Nicholson-Brown's solicitors letter, viewed in its entirety and in the circumstances of the implementation of a policy decision, did accord natural justice and procedural fairness.


case_text: My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 172; affirmed by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 110; and Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 352-353.


case_text: I should indicate that even if I came to the conclusion that there was a failure to adhere to a requirement of consultation with a local Aboriginal community prior to suspension or removal, I would not consider that such failure would vitiate the decision to remove or suspend. I readily accept that the Act has given express and considerable prominence to the role of the local Aboriginal communities, and that the Act envisages that consultation with such communities be undertaken in defined circumstances. However, I must look at the power here being exercised, which is not one of appointment, but of suspension and removal. Such powers may need to be exercised in a variety of circumstances, without there necessarily being any relevance in seeking the views of local Aboriginal communities, such as for instance if a particular inspector was considered no longer to be a fit and proper person. I do not accept that the input of the local Aboriginal community is of the same significance in circumstances of suspension or removal, or that consultation would be regarded as an essential or mandatory requirement to effect a suspension or removal. If necessary to decide, I would take the view that if there was a requirement of consultation with a local Aboriginal community prior to suspension or removal, breach of that requirement would not lead to the invalidity of such a suspension or removal: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-391; and Bond v WorkCover Corporation (SA) (2005) 93 SASR 315 at 331-336.


case_title: Dennis Willcox Pty Ltd v Commissioner of Taxation (1998) 79 ALR 267


case_title: Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348


case_title: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438

case_text: Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.


case_text: I am prepared to assume for the purposes of this case that natural justice or procedural fairness needed to be accorded to each applicant. The real question to determine is the practical content of natural justice or procedural fairness in this case: see, e.g. Jarratt v Commissioner of Police (NSW) [2005] HCA 50 ; (2005) 224 CLR 44 at 51 per Gleeson CJ.


case_text: The second matter is whether the Act confers a power to make, grant or issue such an instrument or merely confers a power on the Minister to make a decision which is to be evidenced in writing: see Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555. In that case, at 558, Wilcox J drew the following distinction in relation to the power in question: I see a conceptual distinction between a power to issue an instrument, which itself has an operative legal effect, and a power to make a statutory decision which is immediately operative but, in the interests of good administration, is thereafter recorded in writing. 28 However, even if I am wrong about this matter and the focus of s 21R is upon the document being the operative act of appointment, in my view, s 33(3) does not operate to constrain the type of power referred to in s 33(4) of the Acts Interpretation Act . In Laurence 139 FCR at 558, Wilcox J briefly discussed the distinction between the type of power referred to in s 33(3) and the type of power referred to in s 33(1) of the Acts Interpretation Act . He concluded that the two subsections referred to different types of power, and therefore operated exclusively of each other. This distinction is similarly applicable as between s 33(3) and 33 (4), the former relating to the general making, granting or issuing of an instrument, the latter relating to the making of an appointment. 29 Section 33(3) is an enabling provision, which may or may not need to be relied upon in any given circumstance. However, the other enabling provision is s 33(4). I cannot see any reason to conclude that s 33(3) operates to constrain the effect of s 33(4) in interpreting s 21R. In my view, therefore, s 33(4) authorised the respondent to suspend or remove each applicant in the circumstances of this case.


case_title: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507


case_text: It is well established that, in the absence of any express limitation in a statute, a consideration will be considered irrelevant only where there is "in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40 and the cases there cited. 34 I must focus upon the Act itself as a whole to determine whether there is some limitation on the power of the respondent. Whilst I am concerned with the interpretation of a Commonwealth Act, it must be recalled that I am concerned primarily with Pt IIA which deals with Victorian Aboriginal cultural heritage. The Act envisages that the Commonwealth Minister may delegate his powers to a state minister, which has occurred in this case. In my view, the Act envisages that a delegation could be made to the respondent in respect of the power to appoint inspectors in relation to Victorian Aboriginal cultural heritage, and envisages that the state minister be given the discretion to exercise the power in view of the specific needs in Victoria of Aboriginal cultural heritage. The question here is whether the Act imposes a limitation on the respondent so as to prevent him from adding the new criteria in considering the appointment suspension or removal of inspectors. If the new criteria are inconsistent with the scheme in respect of inspectors and s 21R, then putting aside any proposed legislation, taking into account the new criteria would necessarily be taking into account an irrelevant consideration. 35 The Act does not contain any express limitation on the exercise of the respondent's power to suspend and remove. As I have said, I accept that the Act gives prominence to the role of Aboriginal people in deciding what should occur in respect of areas and objects of importance to them. In appointing inspectors under s 21R, the respondent has an obligation to consult a local Aboriginal community, in an endeavour to appoint people with the appropriate expertise and knowledge, and to ascertain whether the person is able to perform the duties of an inspector. These criteria must be taken into account, but are not necessarily the only criteria to be applied. I do not regard these criteria as the exhaustive criteria to which the respondent may have regard. 36 Further, there is nothing which would defeat the purposes of the Act if no inspectors were appointed, or all inspectors were temporarily suspended, or even if they were all removed. Section 4 of the Act sets out its purposes, which purposes can obviously be fulfilled without the appointment of inspectors. The Act applies to areas and objects in Australia, not just to Victoria. Part IIA and the appointment of inspectors under the Act only applies to Victoria. Whilst the appointment of inspectors may further the purposes of the Act, they are not necessary for the implementation of such purposes generally. 37 The principal power given to an inspector is that conferred by s 21C; that is to make an emergency declaration. The Commonwealth Minister, the respondent, and any other delegates of the Commonwealth Minister or of the respondent may also exercise the power to make an emergency declaration, as may a magistrate (although only on application by a local Aboriginal community).


case_title: Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1


case_text: The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constraints than the express power to appoint. These cases do not assist in the interpretation of the power to suspend or remove as conferred by s 21R as affected by s 33(4) of the Acts Interpretation Act , and do not stand for the broad proposition contended for by the applicants.


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355