case_title: R v Hamilton (1930) SR NSW 277

case_text: R v Hamilton (1930) SR NSW 277 at 278, Street CJ, with whom Ferguson and Halse Rogers JJ concurred, applied these remarks and another passage from Lord Haldane's speech in which he said that: 'A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.'


case_outcome: applied

case_title: Scott v Scott [1913] AC 417

case_text: since at least the seminal case of Scott v Scott [1913] AC 417, the concept that material deployed in open court might be embarrassing to a party or witness has not been sufficient to warrant closing the court or restricting in any way the scrutiny which publicity brings to bear upon judicial proceedings. In that case it was sought to enforce, by a process of contempt, an order made to keep issues in a divorce suit secret. The suit had been heard in camera and their Lordships unanimously held there was no power in the court to do so. As Viscount Haldane LC said ([1913] AC at 437): 'While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions such as those to which I have referred.' (Namely, the cases of children and those with mental impairment.) His Lordship continued: 'But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.' He then said that there may well be cases in which justice could not be done at all if it had to be done in public and continued: 'As the paramount object must always be to do justice, the general rule is to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be suspended by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity. ... But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial clause or any other where there is contest between the parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. ... The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.' ([1913] AC at 438) One of the reasons why the principle of open justice is so fundamental in securing the due exercise of judicial power was explained by Earl Loreburn in his concurring speech. He said ([1913] AC at 449): 'But when a Court has to decide either that there should be no justice available for people suffering under wrong or that malicious publication should be prevented, I believe the second is the right alternative, and that so to hold is merely to apply a principle acted upon by higher authorities and indispensable in itself. There does, indeed, remain a danger that a Court may not be so jealous to do right when its proceedings are not subject to full public criticism. I acknowledge that this is always possible, and it is not an adequate answer to say that the judges can be trusted, though I believe entirely that they can be trusted. It comes to a choice between the administration of justice in some cases without the safeguard, on the one hand, and on the other hand no administration of justice in such cases at all.' In Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51 Barton ACJ giving the judgment of the High Court said that: '... the judgment of the House of Lords in Scott v Scott ([1913] AC 417), the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.' Subsequently other Full Courts have continued to apply these principles; see Herald and Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 443 where Merkel J, with whom Finn and Stone JJ agreed, applied what Gibbs J had said in Russell v Russell [1976] HCA 23 ; (1976) 134 CLR 495 at 520, namely: 'It is the ordinary rule of the Supreme Court as of other courts of the nation, that their proceedings should be conducted "publicly and in open view" ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials for "publicity is the authentic hallmark of judicial as distinct from administrative procedure" ( McPherson v McPherson [1936] AC 1777 at 200). Merkel J went on to recognise at 130 FCR 444-445 [36]: 'A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 at 180. If that situation arises it can be waived in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice.'


case_outcome: referred to

case_text: defendants and Mr Frederick Gulson (who I will refer to jointly just as 'the defendants' in this judgment) move on an application that the court be closed during part of the evidence to be given by Mr Gulson while he is being cross-examined in relation to mental health issues or any psychiatric condition from which he may, or may have been thought to have, suffered. The circumstances in which Mr Gulson's psychiatric condition, real or perceived, may be relevant in the trial which I have begun to hear were discussed by me in my reasons for judgment of 10 July 2006 ( The Food Improvers Pty Ltd v BGR Corporation Pty Ltd [2006] FCA 1238). In essence, there is an issue between the parties on the pleadings that in late May and June 2005 Mr Gulson, who is one of the directors of the present defendants and the person currently with the day to day control of the first defendant, BGR Corporation Pty Limited, was said to have behaved in a way which was described by various witnesses or documents as angry, rude, loud and involved a lack of self-control. At this point I have heard an opening and the affidavits of the second plaintiff, Mr Bax, have been read. They, together with some of the documentary material within them, suggest that there will be a deal of evidence in the proceedings concerning the way in which Mr Gulson was behaving, particularly at the time of critical meetings in late May 2005 and thereafter. The way in which it was put, I described in my earlier judgment as going to the manner in which Mr Gulson was exercising his powers as the person controlling approximately 70 per cent of the shares in BGR and thus the group of companies of which BGR is the relevant principal. Mr Bax's company The Food Improvers Pty Ltd, was a shareholder in control of shares constituting about 22 per cent of the voting and issued capital in BGR. The defence of the companies which Mr Gulson controls to the plaintiffs' claim asserts that the allegations concerning Mr Gulson's conduct amount to a ruse to deflect responsibility for the refusal by Mr Bax and a senior employee of the BGR group, Mr Gobert, in late May 2005 to continue to participate in business travel and arrangements overseas that were of significance with the BGR group's business. The defendants assert that it was Mr Gobert and Mr Bax who were supposedly completely unprofessional, intentionally disobedient, in serious breach of their duties and wilfully neglectful in the discharge of their obligations under their employee or consultancy arrangements with the BGR group. Mr Gulson has already been a very prominent witness associated with a number of pieces of, what I have been told, is other public interest litigation. His role has been public. He has not only given his evidence in public but his role has been acknowledged in public judgments. The issue raised about his state of mental health has been the subject of my judgment given in open court; that is, it has been available on the internet: The Food Improvers Pty Ltd v BGR Corporation Pty Ltd [2006] FCA 1238. As Ms Cook's affidavit revealed, at least one other person who was a member of the public exercised her right to be present in court and to hear and see what was said in open court on that earlier occasion. That that involved, among other things, the reading of the evidence and the recounting, as I did in my ex tempore judgment, of the nature of the evidence and issues involved in the then application together with the identity of Dr Newman Harris and of the Caritas Centre to whom Mr Gulson in part confided his own medical care. In those circumstances I find it difficult to see how I could now cast a veil over evidence that dealt with the issue of Mr Gulson's alleged medical condition at the time in May, June and July 2005 to which I understand the medical records and medical evidence may be directed. There will also be, as there already is in the affidavits of Mr Bax which have been read, evidence making assertions about or observations of Mr Gulson's behaviour and apparent state of health. For the Court to now seek to remove from the open administration of justice some part or parts of the evidence would in my opinion be for it to do something which was not necessary in the interests of justice. Mr Gulson has not said that he would not be able to come to this Court or have his case litigated. He has not said, and there is no evidence, that he would not be able to give evidence in other cases. The fact that it may be embarrassing to him and no doubt distressing and upsetting to him to have confidential medical records about observations of him and his perceived mental condition made public is not a reason in itself to suppress either by closure of the court or some other means under ss 17(4) and 50 or in the exercise of the inherent powers of the court the availability of public access to everything that is sought to be raised about those matters. It seems to me that his behaviour in the case on the pleadings and arguments as I have outlined them, understood them and had been told about them in July this year are of fundamental importance in determining a material issue. This has already been exposed in open court. And the broad thrust of the allegations about that condition have been revealed including by Mr Gulson himself saying that he checked himself into the clinic in early July 2005 as was tendered in the application before me on the previous occasion.


case_outcome: cited

case_title: The Queen v Tait (1979) 46 FLR 386

case_text: The Queen v Tait (1979) 46 FLR 386 a Full Court of this court applied the principle in a criminal case. Brennan, Deane and Gallop JJ said at 46 FLR at 404: 'The exception - limited to cases where the presence of the public would make the securing of justice "doubtful of attainment" - does not extend to cases where excluding the public would merely save a party or a witness from suffering a collateral disadvantage as the result of the publicity of the proceedings in which he is engaged or in which he is to give evidence.'


case_outcome: affirmed

case_text: The appellant, Mrs Gittins, appeals from a judgment of the Federal Magistrates Court which dismissed her appeal from a decision of the Administrative Appeals Tribunal (Tribunal) (see Gittins v Repatriation Commission [2007] FMCA 167). The Tribunal affirmed a decision of the Veterans' Review Board (Board) that Mrs Gittins was not entitled to a war widow's pension under the Veterans' Entitlements Act 1986 (Cth) (Act). 2 On 16 October 2002, Mrs Gittins applied for a war widow's pension. Her husband, Mr Philip Gittins, had died on 25 July 1997. Mr Gittins was a veteran who served in the Australian Army from July 1949 until December 1971. He had served on operations in Japan from July 1953 until July 1955. 3 Mr Gittins died as a consequence of a low grade non-Hodgkin's lymphoma. In 1976, Mr Gittins worked as a teacher at Brighton Grammar School. At that time, at the urging of his headmaster, Mr Gittins saw a surgeon about a mass on the left side of his neck. The mass has been present since about 1960 and, over time, had grown more visible without causing any symptoms.


case_text: According to the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, a four step process is required under ss120 and 120A of the Act to determine if an injury or death is war-caused. These four steps can be summarised as: • the material before the Tribunal is to be examined to see if it points to a hypothesis connecting the death with the circumstance of the veteran's service. In the absence of a hypothesis, the claim fails; • if the material does raise a hypothesis, the Tribunal must see if there is a Statement of Principles (SoP) in force. If there is no SoP in force that fits the hypothesis, it will be taken to not be reasonable and the claim fails; • if an SoP is in force relevant to the hypothesis, the Tribunal will consider if the hypothesis is reasonable. If the hypothesis is consistent with the template found in the SoP, the hypothesis is reasonable. If the hypothesis fails to fit within the template, the claim fails; • the Tribunal must then consider whether it is satisfied beyond all reasonable doubt that the death was not war-caused. If it is not so satisfied, the claim succeeds. If it is so satisfied, the claim fails. 23 Further, the Federal Magistrate was correct in stating that there was only one cause of death. Mr Gittins did not die of phobia, but because of an inability to obtain clinical management for non-Hodgkin's lymphoma. As there was a relevant SoP for that cause of death, it had to be considered. On having considered the foregoing, it was established by the Court below that Mr Gittins' circumstances did not fit the template contained in the SoP. That was the end of the matter. The claim should have been rejected on this basis alone. However, Riley FM correctly determined that the Tribunal properly applied "the first three Deledio steps" and that it was unnecessary for the Tribunal to consider step four. The Federal Magistrate also correctly determined at [52] that the SoP that applied to the kind of death found "governs the determination of whether the hypothesis that the death arose from relevant service is reasonable." 24 Counsel for Mrs Gittins contended that the Tribunal "implicitly" found that phobia was one of the causes of death. An examination of the Tribunal's reasons reveals no such implicit finding. In any event, a finding should be precise, not implicit. In its reasons for decision, the Tribunal refers at [1] to death, "from a low grade non-Hodgkin's lymphoma". "Phobia of doctors" is an aspect of, or a reason for, the "inability to obtain appropriate clinical management". It was not the actual medical cause of Mr Gittins' death. In fact, at [17], the Tribunal found that any connection between Mr Gittins' death and his experiences in Japan (that is, his phobia) were "too remote and too tenuous". The Tribunal said at [85]: There is no evidence to substantiate a claim that Mr Gittin's hospital experiences in 1954 and 1955 caused his phobia. Nor can the claim be categorically refuted. There is merely insufficient evidence. The Tribunal also said at [87]: Mr Gittins was hospitalised after his operational service on three occasions and also saw several doctors in relation to minor illnesses, discharge medicals and the like, and on no occasion reported a phobia relating to medical or hospital treatment. 25 It is unnecessary for the Court to deal with the claim that the Tribunal failed to provide adequate reasons for its rejection of the second hypothesis in circumstance where it was not necessary for the Tribunal to consider it.


case_text: In Repatriation Commission v Hill (2002) 69 ALD 581 ( Hill ) at [55], a Full Court of this Court approved the judgment of Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72, determining that the hypothesis which is to be held by an SoP is that which connects the disease with the circumstances of the veteran's service. There must be a hypothesis, in the words of Riley FM in the judgment below at [21], "which starts with the disease ... and ends with the service". 9 Further, in Hill at [55], the Court said "a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP". 10 The Tribunal observed that Mrs Gittins relied on SoP No 37 of 2003, concerning non-Hodgkin's lymphoma. In particular, she relied on factor 5(j) of the SoP which refers to "... the inability to obtain clinical management for non-Hodgkin's lymphoma." 11 Clause 5(j) of the SoP provides: ...[t]he factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma with the circumstances of a person's relevant service are: ... (j) inability to obtain appropriate clinical management for non-Hodgkin's lymphoma.


case_text: In Repatriation Commission v Hill (2002) 69 ALD 581 ( Hill ) at [55], a Full Court of this Court approved the judgment of Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72, determining that the hypothesis which is to be held by an SoP is that which connects the disease with the circumstances of the veteran's service. There must be a hypothesis, in the words of Riley FM in the judgment below at [21], "which starts with the disease ... and ends with the service".


case_title: Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441

case_text: On 6 November 2006 I ordered that the applicant's further amended statement of claim be struck out. However, I granted leave to replead on or before 30 November 2006: see [2006] FCA 1441. 33 It is correct, as the respondent submits, that, at an early stage in the proceeding, it put the applicant on notice as to the deficiencies which ultimately led to the striking-out of the first amended statement of claim. The applicant did not ignore or disregard the respondent's submissions. It considered them, accepted some of them and made certain amendments to the statement in August 2006. The respondent again made detailed submissions on why it considered the statement of claim still did not plead a sustainable cause of action. The applicant again considered its position, but, as it was entitled to do, advanced detailed arguments supporting the efficacy of the revised pleading. As is evident from my reasons for decision ([2006] FCA 1441) the arguments were complex and they dealt with the developing case law under the former s 298K of the Act . That case law is not lacking in subtlty and fine distinction. The concepts of injury, prejudicial alteration and threat do not have well settled meanings. 34 As is apparent from my reasons dealing with the first strike-out application, although I harboured doubts to whether a viable case could be pleaded by the applicant under Part XA , I did not regard it as an impossibility. Leave to replead, was therefore, granted. 35 The applicant took advantage of the grant of leave and filed a second further amended statement of claim. This statement of claim alleged contravention of Part XA. It also alleged a contravention of the new Part 16 based, in part, on events which occurred in the course of 2006. This statement of claim was also struck-out. I held that the major deficiencies which I had identified in relation to the case based on Part XA had not been overcome and that the attempt to mount a case under Part 16 failed because various parts of the statement of claim were embarrassing. These conclusions were reached after further detailed argument both written and oral.


case_title: Australian and International Pilots Association v Qantas Airways Limited (No 2) [2007] FCA 581

case_text: Pursuant to this grant of leave, the applicant filed a second further amended statement of claim. On 27 April 2007 I ordered that this pleading also be struck out and said that I would hear the parties on costs: see [2007] FCA 581. I did so because, at the end of its submissions on the second strike-out application, the respondent sought an order that its costs be paid on an indemnity basis should it be successful in its application. In its written submissions the applicant reserved its position in relation to costs pending a review of my reasons for judgment. When judgment was delivered I gave directions for the filing of written submissions and indicated that I would hear oral argument on 9 May 2007. On that day senior counsel for the applicant advised the Court that certain discussions were taking place between the parties which may have rendered it unnecessary for any costs questions to be further considered and indicated that, for this reason and in an effort to avoid unnecessary costs, his client had not filed written submissions on the issue. Further directions were given for the filing of written submissions and the hearing was adjourned to 8 June 2007. 3 The respondent seeks an order of costs in its favour in relation to: • Its strike-out application notice of which was given on 16 June 2006; • Its strike-out application, dated 18 December 2006 which was filed on 17 January 2007; and • The hearing on 9 May 2006. 4 The costs were sought under s 824(2) of the Workplace Relations Act 1996 (Cth) ("the Act "), or, alternatively, under s 347 of that Act as it stood before the March 2006 amendments.


case_text: Where costs are ordered by the Court they will ordinarily be paid on a party and party basis. Any departure from this usual practice, according to the authorities collected by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 230-4, will only occur in a limited range of cases. The "tests" used to identify such cases have been couched in general terms such as "when the justice of the case might so require" or whether there exists "some special or unusual feature on the case to justify the Court in departing from the ordinary practice." These "tests" have, for example, been found to have been met in cases in which unwarranted allegations of fraud have been made, proceedings have been prosecuted for some ulterior motive or in wilful disregard of known facts or clearly established law or where there has been an imprudent refusal of an offer of compromise. To my mind the applicant's conduct, in opposing the second strike-out application and in adopting its bona fide but misguided approach to the Court's directions which led to costs being thrown away on 9 May 2007, do not constitute conduct of the character which would warrant a departure from the ordinary rule. 40 The applicant seeks leave to discontinue the proceeding. The applicant could discontinue the proceeding without leave of the Court under O 22 r 2(1)(b) of the Federal Court Rules . However, given the uncertain costs implications of a discontinuance under this rule because of the provisions of O 22 r 3(1) and s 824 of the Act it was, in my opinion, appropriate for the applicant to seek leave to discontinue the proceeding. The respondent did not oppose the granting of such leave. I consider that leave should be granted subject to the orders for costs which I have foreshadowed in relation to the second strike-out application and the hearing on 9 May 2007 being made. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 8 August 2007 Counsel for the Applicant: Mr M Bromberg SC Solicitor for the Applicant: AJ Macken & Co Counsel for the Respondent: Mr F Parry SC Solicitor for the Respondent: Freehills Date of Hearing: 8 June 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/879.html


case_outcome: followed

case_text: The applicant was correct to accept that s 347(1) applied to subsidiary applications made in the course of a proceeding. Although there are conflicting authorities, (as to which see the cases collected in Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534 at 536-539), the conflict was resolved by the decision of the Full Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. In that case the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed the decision of Wilcox CJ (with whom von Doussa J agreed) in the Industrial Relations Court in Shackley v Australian Croatian Club Limited (1996) 141 ALR 736. In Shackley Wilcox CJ said (at 745) that: "As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding"".


case_text: There is a further reason for rejecting the applicant's submission that s 8(c) of the Acts Interpretation Act afforded it the protection of s 347(1) after 27 March 2006. In order for s 8(c) to operate it is necessary to identify a right or privilege which was in existence at the time that the amendments to s 347 occurred. Such rights may be inchoate or contingent but they must exist: see Esber v The Commonwealth of Australia [1992] HCA 20 ; (1992) 174 CLR 430 at 440. Section 347 prevented the Court from making a costs order against a party to a proceeding under the Act unless the proceeding (including interlocutory applications) was instituted vexatiously or without reasonable cause. Such "protection" could only avail a party once the relevant procedural step had been taken. In the present case each of the procedural events which give rise to the respondent's application for costs occurred after 27 March 2006. Even if the protective effect of s 347(1) can, contrary to my view, be regarded as a right, the "proceedings" to which s 347(1) are said to apply had yet to be instituted and, therefore, no relevant right or privilege had been acquired or had accrued on 27 March 2006. 23 As already noted the respondent seeks an order for costs in relation to its two strike-out applications and the hearing conducted on 9 May 2006. In order to deal with these applications it is necessary to record, in somewhat greater detail than has thus far been attempted, the circumstances which led to the making of the strike-out applications and the conduct of the hearing on 9 May 2006. 24 The proceeding was commenced by application dated 8 March 2006. A statement of claim was also filed on that day. On 9 June 2006 the applicant filed an amended statement of claim. On 16 June 2006, the respondent filed a notice of motion seeking orders striking-out the proceeding or, in the alternative, striking-out certain paragraphs of the amended statement of claim. The notice of motion was made returnable on 4 August 2006. The notice of motion was supported by a detailed affidavit in which the alleged deficiencies of the pleading were canvassed. Subsequently detailed written submissions were made by the respondent. After argument on the notice of motion had been advanced by counsel for the respondent on 4 August 2006, counsel for the applicant sought leave to file a further amended statement of claim. I granted leave and reserved costs. The revised statement of claim was filed on 28 August 2006. Although some of the alleged deficiencies in earlier versions of the pleaded case appeared to have been rectified in the revised statement, the respondent continued to press its strike-out application. Further written submissions were exchanged, further argument was heard, and, on 6 November 2006, I ordered that the applicant's further amended statement of claim be struck-out and that the applicant have leave to file a further amended statement of claim on or before 30 November 2006. Despite granting leave I noted that I harboured a serious doubt that the applicant could amend its statement of claim to advance a case under s 298K conformably with the reasons which I had given for striking-out the amended statement of claim. No order for costs was sought by the respondent.


case_title: Freeman v Moyes (1834) 1 Ad & El 338

case_text: The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad & El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.


case_title: Galvin v Forests Commission of Victoria [1939] VLR 284

case_text: There is, however, another transitional provision which deals directly with s 347 and 824 . Regulation 2.10 in Division 8 of Part 2 of Chapter 7 of the Regulations provides that: "The amendments of s 347 of the Pre-reform Act made by Schedule 1 to the WorkChoices Act do not apply in relation to an action or omission that occurred before the reform commencement." The amendments referred to are the amendments which were made to s 347 before it was renumbered s 824 and include the introduction of what is now s 824(2). It is clearly implicit in this regulation that, had it not been enacted, the amendments had the potential to apply to acts or omissions which occurred in a proceeding commenced before but not concluded on that date. The draftsman of the regulation no doubt had in mind the common law rule that statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission of Victoria [1939] VR 284 at 297-8 ; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415. It is also implicit that the amendments were intended to apply to acts and omissions which occurred in any incomplete proceeding after 27 March 2006. 21 The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad & El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.


case_title: Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413


case_text: The applicant contends that, even if s 824 is applicable to so much of the proceeding as took place after 27 March 2006, it retains the protection of the limitations contained in the old s 347 by reason of the operation of s 8(c) of the Acts Interpretation Act 1901 (Cth). That paragraph relevantly provides: "8. Where an Act repeals in the whole or in part a former Act , then unless the contrary intention appears the repeal shall not: (a) ... (b) ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Act so repealed; (d) ... (e) ... and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." The word "repeals" in s 8 is accorded an extended definition. It includes changes to legislation effected by implication and the abrogation or limitation of the effect of a former provision of an Act : see s 8A of the Acts Interpretation Act . The introduction of the extended definition is, no doubt, attributable in part to the observation of Gibbs J in Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1 at 21 that the addition of words to a section in an Act does not constitute a repeal but rather an amendment of the statute.


case_text: The applicant was correct to accept that s 347(1) applied to subsidiary applications made in the course of a proceeding. Although there are conflicting authorities, (as to which see the cases collected in Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534 at 536-539), the conflict was resolved by the decision of the Full Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. In that case the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed the decision of Wilcox CJ (with whom von Doussa J agreed) in the Industrial Relations Court in Shackley v Australian Croatian Club Limited (1996) 141 ALR 736. In Shackley Wilcox CJ said (at 745) that: "As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding"". 28 Section 824(2) is cast more widely. It applies if a party "has, by an unreasonable act or omission, caused another party to the proceeding to incur costs ...". A party may potentially be liable to pay costs under this sub-section even if it did not institute the proceeding in which the relevant conduct occurred. That conduct may be an act or an omission. The liability may arise, as Young J noted in Paras (at 538 [16]), "irrespective of the outcome of the particular application in question and of the proceeding as a whole." 29 The respondent submits that the applicant acted unreasonably by pressing its amended statement of claim and its further amended statement of claim despite being aware of the respondent's detailed critique which pointed to manifold deficiencies. The first amended statement of claim was struck-out substantially for the reasons advanced by the respondent. The respondent contends that "[p]ressing a major cause of action which has no reasonable prospect of success is unreasonable conduct." 30 The respondent submits that the applicant's conduct in relation to the second further amended statement of claim was also unreasonable. The respondent noted the reservations which I expressed when granting leave, on 6 November 2006, to the applicant to replead its case insofar as it relied on Part XA of the Act . The second further amended statement of claim contained substantially similar allegations as appeared in its predecessor in seeking to plead a case under Part XA. This, it is said "was not a reasonable action". The respondent also contends that the applicant acted unreasonably by failing to have regard to the Court's reasons when it undertook the repleading the exercise. The respondent again places reliance on the alleged failure of the applicant to heed the respondent's written submissions in which the deficiencies in the pleadings were identified.


case_text: I am prepared to assume, in the applicant's favour, that the amendments to s 347 were comprehended by the extended definition of "repeals" which is provided for in s 8A of the Acts Interpretation Act : It is certainly arguable that the provisions of s 824(2) constitute an abrogation of the limiting effect of the former s 347(1): cf Re Ogston and Repatriation Commission (1998) 52 ALD 392 at 400 [21]. The applicant must, nonetheless, establish that it had an accrued right to the benefit of the provisions of s 347 at the time at which the amendment took effect, namely 27 March 2006. It acknowledges that a statutory power to award costs may properly be characterised as procedural in nature but submits that s 347 confers a right or privilege because it affords protection from the power to award costs.


case_title: Shackley v Australian Croatian Club Limited (1996) 141 ALR 736


case_text: Regulation 2.10, on the other hand, does, in my view, make it clear that s 824 governs the making (or the not making) of costs orders in relation to any part of an incomplete proceeding which occurred after 27 March 2006. The Full Court so held in Shanahan v Australian Industrial Relations Commission (No 3) [2007] FCAFC 53. In that case the applicant commenced judicial review proceedings seeking to impugn an order of the Australian Industrial Relations Commission. The proceeding was commenced in the High Court in November 2005. It was remitted to this Court on 1 April 2006 and was determined later that year. The Court referred to reg 2.10 and observed, obiter, that, although the respondent's application for costs fell to be determined under s 347 because the relevant event predated 27 March 2006, this was not to "deny the operation of s 824(2) were it to be the case that by an "unreasonable act or omission" of the applicant occurring on or after 27 March 2006, the second respondent was caused to incur costs in connection with the proceeding." In such circumstances the Court could order the applicant to pay "some or all of those costs": at [19]. 21 The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad & El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.


case_outcome: considered

case_text: In dealing with an application for costs under s 347(1) of the Act , in Standish v University of Tasmania (1989) 28 IR 129, Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138-9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category. I take a different view of the applicant's conduct in relation to the second strike-out application. The second further amended statement of claim contained the same major deficiencies as its predecessor insofar as it dealt with the Part XA claim. The applicant instituted but then withdrew an application for leave to appeal from my decision. It persisted with pleadings which were inconsistent with my reasons for striking-out the first amended statement of claim. In so persisting, I consider that the applicant acted unreasonably for the purposes of s 824(2). The second further amended statement of claim also sought to plead a cause of action under Part 16. That aspect of the pleading failed by reason of embarrassment, not because it was untenable. I do not consider that it was unreasonable for the applicant to pursue the Part 16 aspect of its claim. In my view it is appropriate to order that the applicant pay half the respondent's costs of the second strike-out application. 37 There remains the issue of whether the applicant should pay the respondent's costs thrown away in relation to the hearing on 9 May 2007. In my view such an order should be made. The hearing did not proceed on that day because the applicant had failed to comply with the Court's directions as to the filing and service of submissions relating to the costs issue. This had occurred because of a unilateral decision by the applicant that it wished to pursue settlement discussions with the respondent. Had it wished to be relieved of the obligation to file submissions, the appropriate course was to apply to the Court to vary the directions which had earlier been made. Had it done so costs would not have been thrown away on 9 May 2007, although costs of any motion to vary the orders may have been payable. In omitting to comply with the Court's directions and not seeking, in an appropriate manner, to be relieved of its obligation the applicant acted unreasonably. 38 The respondent seeks to have any costs order in its favour paid on an indemnity basis. I accept that costs might be awarded on such a basis under s 824(2) in appropriate cases. That is because, if the requirements of s 824(2) are satisfied, the fetter imposed by s 824(1) is removed and the Court enjoys the same wide discretionary power which is conferred by s 43 of the Federal Court of Australia Act .


case_title: Wright v Hale (1860) 30 LJ (Ex) 40


case_text: Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner.


case_text: number of decisions of this Court have established the ambit and purpose of the expression "question of law". For present purposes three are pertinent. First, O 53 r 3(2) of the Federal Court Rules discloses an intention that a question of law raised on appeal from the Tribunal should be stated with precision as a pure question of law: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325 [18] per Branson and Stone JJ. Secondly, a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear having regard to the context in which it appears: see Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 565 [51] per Sundberg and Kenny JJ. Thirdly, if a question properly analysed is not a question of law within the meaning of s 44 , no amount of formulary such as "erred in law" or "was open as a matter of law" can make it into a question of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J.


case_title: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321


case_text: Authority submits that the power in reg 269(1) does not extend to imposing a condition that the persons so hired be "acceptable" to it. It put forward three reasons for this. First, it was said to be inconsistent with reg 30(2C), which explicitly imposes conditions on the holder of a certificate of approval in relation to the persons employed by it; secondly, it was said that the regulation did not set forth any criteria by which the acceptability might be measured; thirdly , it was said that the Tribunal had, in truth, remitted its function to the Authority, a course which was said to be forbidden by this Court's decision in Civil Aviation Safety Authority v Allan [2001] FCA 1064 ; (2001) 114 FCR 14. I do not think these submissions have substance. Reg 30(2C) provides: (2C) A certificate of approval is subject to: (a) a condition that each activity the certificate covers must only be carried out at a place where the facilities and equipment necessary for the proper carrying out of the activity are available to the holder of the certificate; (b) a condition that the activities the certificate covers must be carried out in accordance with a system of quality control that satisfies the requirements of subregulation (2D); and (c) if the certificate covers some or all of the following activities: (i) the design of aircraft; (ii) the design of aircraft components; (iii) the design of aircraft materials; (vii) the maintenance of aircraft; (viii) the maintenance of aircraft components; (ix) the maintenance of aircraft materials; (x) the training of candidates for the examinations referred to in paragraph 31 (4) (e); (xi) the conducting of the examinations referred to in paragraph 31 (4) (e); a condition that each of those activities that is covered by the certificate must be carried out under the control of a person appointed by the applicant to control the activities; and (d) a condition that the holder of the certificate of approval must ensure that each person employed by, or working under an arrangement with, the holder receives adequate training in: (i) the work performed by the person for the purposes of the activities covered by the certificate; and (ii) the use of any equipment used in connection with that work. As I apprehend it, the argument is that because of the specific provisions of reg 30(2C) it should be concluded that there is excluded from the power in reg 269(1) any power to impose conditions regulating the qualities of persons employed by a certificate holder. To accept such an argument it would be necessary to identify some negative implication from reg 30(2C) to the effect that no other power might be used to achieve a similar result. I can discern in it no basis for such an implication.


case_outcome: discussed

case_title: Comcare v Lees (1997) 151 ALR 647

case_text: issues which arise from s 43(2) are more subtle. There is no doubt it requires the Tribunal to provide reasons which are adequate. There is also little question but that the question of adequacy, in the present circumstances, directs attention at least to the efficacy of the appeal process contemplated by s 44. The reasons must be at least sufficient in quality to permit that appeal process to be efficacious. However, the appeal process under s 44 is subject to the constraint that there be present a "question of law". Debate exists as to whether a failure to provide reasons is an error of law. There is an obiter dictum of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 which suggests that a failure by the Tribunal to provide adequate reasons does not result in the invalidity of its decision and that the proper remedy is a mandatory order that reasons be provided. That view has not prevailed in this Court where it has instead been held that a failure to provide adequate reasons is an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573 per Sweeney, Davies and Burchett JJ. The contrary view is set forth in Comcare v Lees (1997) 151 ALR 647 at 658-659 by Finkelstein J. The existence of the debate about the correctness of Dornan has been noted on a number of occasions by Full Courts of this Court, but none have thought it necessary to resolve it. To the extent that Lees assumes that there is no question of law where there is no error of law I respectfully differ. Every error of law corresponds with a question of law but the converse is not true. Questions of law concerning the processes of the Tribunal rather than its actual decision are likely to give rise to questions of law which do not correspond with any error of law in the decision of the Tribunal. The provision of inadequate reasons is one illustration; a departure from a statutorily mandated procedure during the course of a hearing may be another. There is a textual argument available against this view. Section 44 uses the expression "question of law" when conferring jurisdiction on this Court to hear an appeal. The same expression is used in s 45 which permits, in certain circumscribed circumstances, the referral by the Tribunal to this Court of a "question of law". It may be that the expressions should bear the same meaning; if so, there may be difficulties in contemplating the Tribunal referring the adequacy of its own reasons to the Court. However, the answer to that is either that "question of law" in s 45 does not so extend or, alternatively, that it does and that the Tribunal could refer the adequacy of its own reasons to this Court.


case_text: second matter to which I should refer is the Tribunal's reference at [127] to having "had regard to the authorities relied on by both parties, including Re Snook and Civil Aviation Safety Authority [2003] AATA 285 , Re Brazier and Civil Aviation Safety Authority [2004] AATA 31 and Re Richards Aviation Services v Civil Aviation Safety Authority (AAT, 26 November 1996)." It has been held, in the context of the adequacy of judicial reasons, that setting out two sets of competing submissions and indicating a preference for one over the other is not a sufficient discharge of the judicial obligation to give reasons: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 at 415-417 per Kirby P; Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA, [68] per Hodgson JA, [78] per Ipp AJA.


case_text: course, if Dornan is correct then, additionally, the Tribunal made an error of law. However, the significance of that for present purposes hinges upon whether that conclusion would lead to a different result. Clearly, such an approach would require the Tribunal to produce its reasons again. The difference would be that, if the error of law were jurisdictional the orders of the Tribunal might be set aside, it might have to re-exercise its powers afresh and it might have to do more than just produce reasons. I think it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional. It is true, no doubt, that generally, an error of law will, in the hands of a non-judicial tribunal, be jurisdictional: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. However, it is to be noted that the errors of law there identified as having that effect were said to be those causing an inferior tribunal to identify the wrong issue. It may be doubted whether an error of law constituted by inadequate reasons could ever have that effect for reasons explained in Yusuf .


case_title: Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551


case_title: Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238


case_title: Gilkinson v Repatriation Commission (2008) 104 ALD 406


case_text: first is the Tribunal's conclusion that Mr Fawcett was an honest man who would suffer financial hardship if Central's certificate of approval were cancelled. One cannot tell from the Tribunal's reasons where, or even if, these findings were taken into account. It is difficult to see that they had anything to do with the Tribunal's conclusions that Mr Fawcett and Central had failed, within the meaning of reg 269(1)(c), in the duty imposed on them with respect to a matter affecting the safe operation of the Cirrus aircraft. Whatever else might be said about the failure by Mr Fawcett to notice that the steel cap was missing from the engine port, it is difficult to incorporate notions of honesty or financial hardship into that particular field of discourse. On the other hand, it is difficult to see how financial hardship to Mr Fawcett had any relevance to the issue of whether he, or Central, were fit and proper persons: cf. Hughes and Vale Proprietary Limited v State of New South Wales (No 2) [1955] HCA 28 ; (1955) 93 CLR 127 at 156-157 per Dixon CJ, McTiernan and Webb JJ. It is possible that his honesty could be seen as going to fitness and propriety but it is difficult to understand, without more, how honesty might be an answer to a lack of fitness said to be constituted by incompetence. Of course, it may be that those factors were taken into account in deciding how to exercise the discretionary power to vary, suspend or cancel which arose consequent upon the Tribunal's conclusions about reg 269(1)(c). There is nothing to indicate, however, that this is what occurred. Indeed, there is no explanation of how the Tribunal came to the conclusion that it was appropriate to vary the conditions other than that those variations were "appropriate to satisfy the paramount consideration of aviation safety" (at [128]).


case_text: speaking, a statement by a decision-maker as to its reasons for decision would ordinarily be hearsay and inadmissible. However, it is generally accepted that so long as the reasons are reasonably contemporaneous with an administrative decision they are admissible as part of the res gestae: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162 at 168 per Davies J, 187 per Hill J. Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [62] - [63] per Hely J; Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190 at 205-206 [50] - [52] per French J. The last two mentioned decisions use the language of the res gestae rule, however, it may be that they should be understood as being illustrations of s 72 of the Evidence Act 1995 (Cth) which appears to be its statutory embodiment.


case_text: were two other matters raised by the Tribunal which potentially bear upon this issue. I mention these matters because it is necessary to discern, if it is possible, how the Tribunal connected its findings about Mr Fawcett's failings to its conclusions about fitness and propriety. This is particularly so where the High Court has emphasised the need to avoid over-zealous parsing of the reasons of administrative decision-makers: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.


case_text: Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner. There is no obligation to "make all necessary findings of fact" the obligation is only to produce reasons which are adequate. In that circumstance, I propose to treat the ground as relating to the duty imposed by s 43(2B). The allegation that s 43(2B) requires the Tribunal to make such findings is, I think, untenable. As I have already noted, that view of s 43(2B) is at odds with the approach held to be required by the High Court to s 430 of the Migration Act 1958 (Cth) in Yusuf . The three questions of law relating to this issue posed by the applicant were as follows: (a) whether the Tribunal made all necessary findings of fact to support its conclusion that the grounds for cancellation of the respondent's CoA relied upon by the applicant for the purposes of CAR 269(1)(d) had not been made out; (f) whether the Tribunal failed to give reasons (or sufficient and adequate reasons) for its decision in breach of s.43 (2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"); and (g) further or alternatively, whether the Tribunal failed to include in its reasons findings (or sufficient and adequate findings) on material questions of fact or otherwise failed to refer to the evidence or other material on which such findings were based in breach of s.43 (2B) of the AAT Act. In light of my conclusions, questions (a) and (g) should be answered: "The Tribunal complied with its obligations under s 43(2B)." Question (f) should be answered: "No. The reasons of the Tribunal were not adequate." Second issue: irrelevant considerations Of course, if Dornan is correct then, additionally, the Tribunal made an error of law. However, the significance of that for present purposes hinges upon whether that conclusion would lead to a different result. Clearly, such an approach would require the Tribunal to produce its reasons again. The difference would be that, if the error of law were jurisdictional the orders of the Tribunal might be set aside, it might have to re-exercise its powers afresh and it might have to do more than just produce reasons. I think it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional. It is true, no doubt, that generally, an error of law will, in the hands of a non-judicial tribunal, be jurisdictional: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. However, it is to be noted that the errors of law there identified as having that effect were said to be those causing an inferior tribunal to identify the wrong issue. It may be doubted whether an error of law constituted by inadequate reasons could ever have that effect for reasons explained in Yusuf .


case_title: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190


case_text: even if Dornan required the conclusion that the decision of the Tribunal were afflicted by jurisdictional error, in the exercise of my discretion I would not set aside the Tribuna's decision. The existence of that discretion is confirmed by s 44(4) which provides that this Court "may" make such order as it thinks appropriate. In the context of a jurisdictional error, it is appropriate that that discretion be exercised in a way which is analogous to the refusal of prerogative relief on discretionary grounds. In that regard, the existence of an adequate alternative remedy is a proper basis for refusing relief: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ. Here adequate alternative relief is available if the decision is left in place because s 43AA(3)(b) allows the Tribunal to correct its decision to ensure consistency with its reasons. That, of course, will still require an order that the Tribunal produce reasons which are adequate. It is not entirely clear to me how Dornan can explain that necessity but it is not necessary to determine that issue any other result would be surreal.


case_title: Repatriation Commission v Cotton (2006) 93 ALD 118


case_text: issues which arise from s 43(2) are more subtle. There is no doubt it requires the Tribunal to provide reasons which are adequate. There is also little question but that the question of adequacy, in the present circumstances, directs attention at least to the efficacy of the appeal process contemplated by s 44. The reasons must be at least sufficient in quality to permit that appeal process to be efficacious. However, the appeal process under s 44 is subject to the constraint that there be present a "question of law". Debate exists as to whether a failure to provide reasons is an error of law. There is an obiter dictum of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 which suggests that a failure by the Tribunal to provide adequate reasons does not result in the invalidity of its decision and that the proper remedy is a mandatory order that reasons be provided. That view has not prevailed in this Court where it has instead been held that a failure to provide adequate reasons is an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573 per Sweeney, Davies and Burchett JJ. The contrary view is set forth in Comcare v Lees (1997) 151 ALR 647 at 658-659 by Finkelstein J. The existence of the debate about the correctness of Dornan has been noted on a number of occasions by Full Courts of this Court, but none have thought it necessary to resolve it.


case_text: Authority argued that it did not have an opportunity to dissuade the Tribunal from imposing a condition about the "acceptability" to it of the LAME and the person carrying out the auditing role. The Authority's submissions in this Court proceeded on the basis that it was denied the opportunity to put to the Tribunal "the correct construction of [reg 30]". This I take to be a denial of the opportunity to put the submission I have just rejected. Even if one assumes that the Authority was prevented from arguing against the word "acceptable" and that it was denied procedural fairness as a result, that denial was not material: cf Stead v State Government Insurance Commission [1986] HCA 54 ; (1996) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ. Question (d) was as follows: (d) whether the Tribunal provided the applicant with an opportunity (or adequate opportunity) to address the Tribunal on the conditions that it intended to impose on the respondent's CoA and whether those conditions would conform to the requirements of the CA Act and CAR 30; I would answer the question: "No. The Tribunal did not afford the applicant an opportunity to submit that its proposed conditions did not comply with reg 30. However, this was not material." Disposition


case_title: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069


case_title: Duus v Dalvella Pty Ltd [2007] FCA 1921

case_text: The issues framed by the Statement of Claim prior to amendment are described comprehensively in Duus v Dalvella Pty Ltd [2007] FCA 1921 ( 'Duus v Dalvella' ). That decision determined, largely unfavourably to Dalvella and Donemate, their challenge to the adequacy of particulars given by the Trustees of the Statement of Claim. Some of the arguments dealt with in that decision have been raised again in the present application although on this occasion in the context of whether the Amended Statement of Claim properly pleads a cause of action reliant upon the integers of s 121 of the Bankruptcy Act 1966 (Cth) ('the Act'). 3 By their application, the Trustees seek the following declarations and orders in reliance upon s 121 of the Act: 1. A declaration that the mortgage granted by Mr and Mrs Waters as joint tenants in the Property [property located at 46 Victoria Terrace, Caloundra, Queensland of which Mr and Mrs Waters are registered proprietors as joint tenants] in favour of Dalvella on or about 3 February 1997 is void as against the Applicants pursuant to the provisions section 121 of the [Act] ; 2. A declaration that the Contract of Sale dated 25 May 1999 entered into by Mr and Mrs Waters as vendors with Dalvella as purchaser for the sale of the Property is void as against the Applicants pursuant to [s 121 of the Act] ; 3. An order that Caveat No. 707849705 registered by Dalvella over the Property is without proper grounds and should be withdrawn by the Registrar of Titles; 4. A declaration that as at 22 September 1999, Mr Waters legally and beneficially held a one half interest in the Property and accordingly that interest formed part of his bankrupt estate and vested in the First Applicant by virtue of section 116(1) of the [Act] ; 6. Such further or other orders as the Court thinks fit. 4 For the reasons indicated at [24] of Duus v Dalvella , since the date of bankruptcy of Mr Waters and Mrs Waters is 22 September 1999 and 28 September 1999 respectively, s 121 of the Act applies in the following terms: SECTION 121 TRANSFERS TO DEFEAT CREDITORS 121(1) Transfers that are void. A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor's bankruptcy if: (a) the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred; and (b) the transferor's main purpose in making the transfer was: (i) to prevent the transferred property from becoming divisible among the transferor's creditors; or (ii) to hinder or delay the process of making property available for division among the transferor's creditors. 121(2) Showing the transferor's main purpose in making a transfer . The transferor's main purpose in making the transfer is taken to be the purpose described in paragraph (1)(b) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent. 121(3) Other ways of showing the transferor's main purpose in making a transfer. Subsection (2) does not limit the ways of establishing the transferor's main purpose in making a transfer. 121(4) Transfer not void if transferee acted in good faith. Despite subsection (1), a transfer of property is not void against the trustee if: (a) the consideration that the transferee gave for the transfer was at least as valuable as the market value of the property; and (b) the transferee did not know that the transferor's main purpose in making the transfer was the purpose described in paragraph (1)(b); and (c) the transferee could not reasonably have inferred that, at the time of the transfer, the transferor was, or was about to become, insolvent. 121(4A) Rebuttable presumption of insolvency. For the purposes of this section, a rebuttable presumption arises that the transferor was, or was about to become, insolvent at the time of the transfer if it is established that the transferor: (a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the transferor and as sufficiently disclose the transferor's business transactions and financial position; or (b) having kept such books, accounts and records, has not preserved them. 121(5) Refund of consideration. The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee. 121(6) What is not consideration. For the purposes of subsections (4) and (5), the following have no value as consideration: (a) the fact that the transferee is related to the transferor; (b) if the transferee is the spouse or de facto spouse of the transferor the transferee making a deed in favour of the transferor; (c) the transferee's promise to marry, or to become the de facto spouse of, the transferor; (d) the transferee's love or affection for the transferor. (e) if the transferee is the spouse of the transferor the transferee granting the transferor a right to live at the transferred property, unless the grant relates to a transfer or settlement of property, or an agreement, under the Family Law Act 1975 . 121(7) Exemption of transfers or property under debt agreements. This section does not apply to a transfer of property under a debt agreement. 121(8) Protection of successors in title. This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property. 121(9) Meaning of transfer of property and market value. For the purposes of this section: (a) transfer of property includes a payment of money; and (b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and (c) the market value of property transferred is its market value at the time of the transfer. 5 Section 121(1) of the Act prior to the Bankruptcy Legislation Amendment Act 1996 (Cth) (which introduced into the Bankruptcy Act s 121 in the terms above) addressed 'fraudulent dispositions'. It was in these terms: 121(1) Subject to this section, a disposition of property, whether made before or after the commencement of this Act, with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith, is if the person making the disposition subsequently becomes a bankrupt, void as against the trustee in the bankruptcy. 6 Although s 121 in its present form addresses transfers of property made for the identified 'main purpose', the Amended Statement of Claim (like the earlier Statement of Claim) of the Trustees challenges particular transactions (called the '1996 transactions') on the footing that they were part of a scheme orchestrated by Waters with an intent to defraud their creditors; constituted a disposition of property of Waters for no consideration in favour of Dalvella which did not act in good faith; and were entered into for a main purpose which is said to fall within the scope of s 121(1). In other words, there is an amalgam of the elements of the old s 121(1) and the present formulation of s 121(1). The Trustees say that they have chosen to formulate a case of fraudulent disposition because the facts support that conclusion as to those transactions and the disposition falls within the present formulation of s 121(1) having regard to the pleaded main purpose. There is, it is said, no inconsistency or failure to plead the required elements of the statutory cause of action. Dalvella and Donemate say inconsistency arises on both counts. 7 The case pleaded by the Amended Statement of Claim is this. 8 On 10 August 1999, Richard Waters and Margaret Waters appointed Mr Bevan Schafferius controlling trustee of their property under s 188 of the Act. On 9 September 1999 the creditors of Waters rejected a proposed composition. On 22 September 1999 the estate of Richard Waters was sequestrated (with the appointment of the first applicant as trustee of the estate) consequent upon a Bankruptcy Notice issued to Mr Waters on 4 March 1999 by the Official Receiver and the presentation of a Creditors Petition against him by the liquidator of Delvine Pty Ltd ('Delvine') on 20 April 1999. On 28 September 1999 the Insolvency Trustee Service of Australia ('ITSA') accepted a Debtors Petition filed by Mrs Waters and appointed the second applicant as trustee of her estate. 41 Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane & Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.


case_text: Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane & Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.


case_title: PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515


case_title: DM Cannane & Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557


case_title: Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353


case_text: Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).


case_text: By paras 31, 32, 33 and 34, the Trustees plead these matters. 31. In the circumstances of the particulars pleaded in paragraphs 22 and 30 herein, it is reasonable to infer that: 31.1 Jefferson & Stevenson, the DCT, the BSA and the Liquidator of Delvine were either creditors, contingent creditors or anticipated creditors for large sums of money and that inevitably there would come a time when these creditors would press Mr and Mrs Waters for payment of monies or obtain judgments that Mr and Mrs Waters would not be able to pay. 31.2 The 1997 Transactions and the 1999 Transaction amount to a voluntary disposition of the Property which contributed to Mr and Mrs Waters being left without sufficient assets to meet their debts. 32. Alternatively, the 1996 Transactions, the 1997 Transactions and the 1999 Transaction purport to have resulted in: (a) Donemate [as Trustee] being indebted to Dalvella [as Trustee] for the sum of $2,199,960; (b) Mr and Mrs Waters being indebted to Donemate [as Trustee] in the sum of $2,199,960; (c) Dalvella being granted a third party mortgage over the Property by Mr and Mrs Waters to secure Dalvella's loan to Donemate; and (d) Dalvella being entitled to take a transfer of Mr and Mrs Waters's legal and beneficial interest in the Property on the terms set out in the Contract. 33. In fact, the 1996 Transactions, the 1997 Transactions and the 1999 Transaction were manifested by circular transfers of funds between Mr and Mrs Waters's Account, Dalvella's Account and Donemate's Account which resulted in no consideration or consideration of less than market value being given, in that: 33.1 Dalvella [as Trustee] did not advance the sum of $2,199,960 to Mr and Mrs Waters; 33.2 Mr and Mrs Waters did not gift back the sum of $2,200,000 to Dalvella [as Trustee] ; 33.3 Dalvella [as Trustee] did not advance $2,199,960 to Donemate [as Trustee] ; 33.4 Donemate [as Trustee] did not advance the sum of $2,199,960 to Mr and Mrs Waters; 33.5 Mr and Mrs Waters did not repay the sum of $2,199,960 to Dalvella [as Trustee] ; 33.6 The mortgage granted by Mr and Mrs Waters to Dalvella was granted for no consideration because no monies were actually advanced by Dalvella [as Trustee] to Donemate [as Trustee] ; and 33.7 By virtue of the facts pleaded in paragraphs 33.1 to 33.6 herein, the Contract was not a genuine arms length contract. 34. By virtue of the matters pleaded in paragraphs 1 to 31 herein, the 1996 Transactions, the 1997 Transactions and the 1999 Transaction were dispositions pursuant to the provisions of section 121 of the Bankruptcy Act 1966 (Cth) and accordingly are void against the Applicants. 35 In the course of dealing with the challenge by Dalvella and Donemate to the adequacy of particulars given by the Trustees of the Statement of Claim, I set out extensively the elements of the pleading as then formulated. For the sake of completeness in these reasons, I have recorded the matters pleaded by the Trustees by the Amended Statement of Claim . It should be noted however that there is no change to the formulation of the 1996 transactions nor the pleaded particulars of those transactions. The Amended Statement of Claim introduces a new para 22.3 which pleads the main purpose of Waters in entering into the 1996 transactions. Paragraph 23.1 of the amended pleading adopts para 23 of the earlier pleading but also pleads that in the circumstances the facts pleaded in paras 20 to 22, the amount of the purported gifts by Waters to Dalvella ($2.2m) would probably have been available to creditors, but for the gifts. There is no change to the formulation of the 1997 transactions nor the 1999 transaction. The main purpose of the 1997 transactions and the 1999 transaction pleaded by para 30 of the Amended Statement of Claim is that pleaded by para 30 of the earlier pleading. There is no change to para 31. Paragraph 32 as previously formulated is now simply introduced by the word 'Alternatively'. Paragraphs 33 and 34 are in the same terms as the earlier pleading. 36 The contentions of Dalvella and Donemate are these. 51 Before dealing with each of these contentions, the case pleaded by the Trustees against Waters needs to be examined in the context of the pleading overall so as to test whether the Statement of Claim makes clear to Waters the case advanced against them which they must answer especially having regard to their contention that the 1996 transactions have no coherent relationship, within the pleading, with the 1997 and 1999 transactions in terms of remedial relief. The principles guiding the exercise of the discretion for the purposes of Order 11, r 16 are well settled ( Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 585-586 at [47] [51] per French J; Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 at [92] to [109] per Lander J; BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No. 2) [2002] FCA 87 at [2] , [3], [20] and [21] per Mansfield J; Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405 at 414 per Beaumont J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 and 130, per Barwick CJ).


case_title: BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No. 2) [2002] FCA 87


case_title: Pan Continental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983 ; (1994) 121 ALR 405


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_text: my reasons at [136] I said that the respondent relied upon a decision Re Java 452 Pty Ltd (admin apptd); Permanent Trustee Australia Ltd (as trustee of Advance Property Fund) v Stout [1999] VSC 252 ; (1999) 32 ACSR 507 (incorrectly cited as Re Java 452 Pty Ltd (administrator appointed) (No 2) [1999] VSC 252 ; (1999) 32 ACSR 507). I then discussed that decision concluding that the decision was not contrary to the construction which I put upon s 444F. Last night counsel for the respondent advised my chambers that I had referred to the first decision in Re Java rather than the second which was relied upon by the respondent. This morning, junior counsel for the respondent advised me that they relied upon both decisions in Re Java. I was told that whilst the respondent had referred to the second decision, the respondent had inadvertently given me a reference to the first decision, which is the decision to which my reasons refer.


case_outcome: distinguished

case_text: I should give further reasons in relation to the second decision in Re Java 452 Pty Ltd (Administrators Appted) (No 2); Stout & Scales (in their capacity as joint administrators of Java 452 Pty Ltd (administrators appted) v Permanent Trustee Australia Ltd [1999] VSC 273. In that decision, the company occupied premises owned by the respondent. The respondent had terminated the lease by notice given on 6 April 1999. The company entered into a Deed of Company Arrangement to sell the company's assets to a third party. The assets included the company's interest in the lease agreement which had been made between the predecessors of the company and the respondent. Byrne J said (at [6]): For the reasons set out at length in my judgment of 9 July I have concluded that the lease was terminated on 6 April 1999. This conclusion has a number of consequences for present purposes. First, the Company cannot assign the lease to a purchaser of the business because the lease no longer exists. This means that the purpose of the Deed, namely the sale of the assets, is defeated. Second, the Company will, upon the execution of the Deed, lose its statutory right to possession unless an order is made under s444F(4). Such an order does not re-instate the lease or create a fresh lease which is capable of assignment to a purchaser of the business. I was told by counsel for the Company that his client would be prepared to enter into a fresh lease with Permanent Trustee in terms of the old lease. This may be so, but Permanent Trustee says its (sic) does not want to grant such a term. It was not suggested that I have the power to compel it to do so. Moroever, the power conferred by s444F(6) to impose conditions upon the making of an order does not seem appropriate in a case where it is the respondent and not the applicant upon which the conditions might be imposed. With respect, I agree entirely with his Honour's observations. If a lease is terminated under an order under s 444F it does not reinstate the lease or create a fresh lease. Indeed, I said as much in my reasons at [131] and [142]. That being the case, a company which has obtained the benefit of an order under s 444F cannot assign the lease because the lease has been terminated. The point of distinction in Re Java 452 Pty Ltd (Administrators Appted) (No 2); Stout & Scales (in their capacity as joint administrators of Java 452 Pty Ltd (administrators appted) v Permanent Trustee Australia Ltd [1999] VSC 273 is that the applicant in that case was purporting to enter into an agreement to sell a lease. However, because the lease had been terminated it was no longer an asset of the company. That is not the case in this proceeding. DNPW does not wish to sell or assign the Lease. It wishes to continue to occupy the premises which were the subject of the Lease so that it can continue trading. I do not think that either of the decisions in Re Java are inconsistent with my construction of s 444F. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 21 July 2009 Counsel for the First Applicant: Mr P McNamara QC with Mr G Dart Solicitor for the First Applicant: Cowell Clarke Counsel for the Second Applicant: Mr P McNamara QC with Mr G Dart Solicitor for the Second Applicant: Cowell Clarke Counsel for the Respondent: Mr M Livesey QC with Mr B Roberts Solicitor for the Respondent: Minter Ellison Date of Hearing: 10 July 2009 Date of Judgment: 10 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/755.html


case_text: In Australian and New Zealand Banking Group Limited v Financial Services Union of Australia (2001) 111 IR 227 at 236, the Full Court (Black CJ, Wilcox and von Doussa JJ) considered the circumstances in which a payment under contract could discharge an obligation under an award. Their Honours quoted the Full Court in Poletti v Ecob (No 2) (1989) 31 IR 321 at 236, (at [41]): 41 In Poletti v Ecob (at 393; 332-333) the Full Court made this comment: "It is to be noted that there are two separate situations dealt with in the passage from the judgment of Sheldon J which has been quoted and in the reasoning of the Commission in Pacific Publications . The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whichever obligation or obligations he or she wishes: see Halsbury's Laws of England , 4th ed, vol 9, pars 505 and 506."