case_text: first question raised again the issue dealt with by Finn J, whether the Tribunal had failed to appreciate the significance of the word "all" in s 24A of the FOI Act and had failed to understand properly, and to carry out a critical evaluation of, the steps taken by the respondent. Her Honour concluded from the Tribunal's reasons that it understood the nature of the task it was required to perform. The appellant had relied on an earlier Tribunal decision in Khoh v Telstra Corporation Ltd [1998] AATA 45 and had attempted to argue that the search carried out in his case was less than that carried out in Khoh . The federal magistrate held that Khoh could not be taken as a precedent that all filing cabinets had to be searched to prove that all reasonable steps had been taken. Her Honour also rejected the proposition that the search in Khoh's case was more intensive than the search in the present case. Her Honour also rejected an argument based on the adequacy of the inquiries made by the particular officer in the present case, when compared with the same officer's inquiries in Khoh . Her Honour reminded herself that the essential question was whether all reasonable steps were taken to locate the relevant documents. Her Honour concluded that it was open to the Tribunal to reach the conclusion that all reasonable steps had been taken. Her Honour did make some remarks critical of the respondent's document storage and retrieval system. These were based on findings of the Tribunal. The second and third questions in the appeal suggested error and ambivalence on the part of the Tribunal in relation to events prior to 13 February 1998. The Tribunal had characterised the appellant's evidence and contentions relating to events prior to that date as not directly relevant to the Tribunal's decision-making process. The appellant contended that this was an error, and that it was inconsistent with the Tribunal's reliance on the respondent's documents that preceded that date. The federal magistrate pointed out that the Tribunal in fact referred to a number of events that preceded 13 February 1998. Her Honour held that the Tribunal had not failed to have regard to events prior to 13 February 1998, but had concluded that those events were not directly relevant to what it had to decide. The appellant had complied with s 15A of the FOI Act, by making a request in accordance with the respondent's established procedure for requesting personnel records, so there was no issue about his being barred by s 15A from making his request pursuant to the FOI Act. The provision of some documents to the appellant in 1997 left open the question whether all reasonable steps had been taken since then to find the documents the appellant sought. As her Honour said, this was the question the Tribunal had to determine. Her Honour characterised the appellant's real complaint as being that there should have been an internal review of a particular decision. As her Honour said, once the matter reached the Tribunal, the internal decisions of the respondent were irrelevant, because the Tribunal was required to make the correct or preferable decision on the material before it. What had been done by the respondent's officers was relevant in determining whether all reasonable steps had been taken, but the views of those officers about that issue were immaterial. Her Honour concluded that the Tribunal had taken into account events prior to 13 February 1998, to the extent that they were relevant. Her Honour then distinguished the material provided by the respondent from that on which the appellant had intended to rely, by saying that the respondent's material was relevant to where documents might have gone. The fourth question challenged a conclusion of fact by the Tribunal as involving extinguishing the significance of a particular document in evidence before it apparently on a whim. The federal magistrate concluded that the Tribunal had simply reconciled two pieces of conflicting evidence. Even though it had reached a different conclusion on that issue from the decision that was set aside by Finn J, the Tribunal was entitled to take a different view of the facts when it considered the matter again, and was obliged to do so if it realised it had made a mistake previously or had seen the matter more clearly the second time. The fifth question concerned submissions the appellant had made about the earlier Tribunal proceeding. The appellant suggested that the Tribunal had accepted the respondent's argument that those submissions were irrelevant. The federal magistrate pointed out that, on the face of it, it did not appear that the Tribunal had ruled expressly on the respondent's argument. The Tribunal did say that the appellant's submissions should have been made at the earlier hearing, but went on to summarise them and expressly accepted one of the submissions, concerning a mistake about the date of release of the occupational health medical file. The Tribunal also acknowledged that it had been remiss in not explaining in the earlier decision what it had meant by the notion of "exhaustive searches". Her Honour concluded that it could not be said that the Tribunal acceded to the respondent's argument as to the irrelevance of the appellant's submissions about the earlier proceeding. To the extent that those submissions were relevant, the Tribunal took them into account. The sixth question asked whether the Tribunal had acted improperly by depriving the respondent's witnesses of the opportunity to answer questions freely on their own upon being examined or cross-examined. The appellant referred to three instances where he said the Tribunal had intervened improperly during the cross-examination of witnesses. In the first case, her Honour concluded that it was appropriate for the Tribunal to stop the appellant questioning a witness about speculative matters. The second case concerned an exchange about whether one officer had sought advice from another. The advocate appearing for the respondent objected because of the possibility that legal advice had been involved in the exchange between the two officers. The Tribunal clarified the evidence that had been given. The federal magistrate found that the Tribunal might have been wrong about whether the officer giving evidence had no recollection of speaking to the other officer about the appellant's application, but held that this was nevertheless irrelevant to the question the Tribunal had to determine. The third case concerned the Tribunal's intervention in an exchange about the degree of formality in requests by one officer to another to make searches. The federal magistrate regarded this as a proper intervention by the Tribunal to clarify a question. Her Honour concluded that the Tribunal's approach was fair, focusing on relevant matters while allowing the appellant to elicit the appropriate evidence. In his seventh question, the appellant fastened on Finn J's statement that s 24A of the FOI Act is "not meant to be a refuge for the disordered or disorganised." The appellant asked whether the Tribunal had appreciated this. In fact, as the federal magistrate pointed out, the Tribunal had referred specifically to Finn J's comment, indicating that the Tribunal had taken the comment into account. The federal magistrate referred to the Tribunal's findings of fact about the respondent's record management. Her Honour concluded that the Tribunal did appreciate that s 24A of the FOI Act is not intended to be a refuge for the disordered or the disorganised. At the same time, the Tribunal recognised that the respondent's system imposed severe limitations on its ability to retrieve the appellant's document. At [53], her Honour said: Whatever the intent behind s.24A, it cannot magically correct a "system" that in the past has been disordered and disorganised. Section 24A can demand that logical and thorough investigations be undertaken, but it cannot change the historical fact that a particular document storage and retrieval "system" is disordered and disorganised. Her Honour pointed out that the Tribunal had found as a fact that, within the confines of its previous system, the respondent had taken all reasonable steps to find the documents the appellant sought. In her Honour's view that finding was open on the evidence. Her Honour then dealt with arguments the appellant put forward in relation to the facts, concluding that the Court could not disturb the Tribunal's findings of fact. Her Honour then dealt with an argument that the Tribunal had not indicated how much weight it had given to hearsay evidence. Her Honour held that it was unnecessary for the Tribunal to itemise the weight it gave to each aspect of the evidence. The Tribunal was entitled to give the evidence such weight as it deemed fit. The appellant's question eight raised the issue whether the Tribunal had made a decision that no reasonable decision-maker would have made. This question turned on whether the Tribunal's interpretation of one of the appellant's email requests was unreasonable. The issue was whether, in seeking access to a file "at a future time to be nominated", the appellant was indicating (as the Tribunal thought) that he would nominate the time, or was indicating (as the appellant said he thought) that the recipient of the email would nominate the time. The federal magistrate did not consider the Tribunal's interpretation of the email to be unreasonable. The appellant also relied on a series of complaints about the Tribunal's treatment of various factual issues as evidence of the unreasonableness of its decision. The federal magistrate did not consider that any of the Tribunal's conclusions on those issues, or any of the omissions the appellant complained of, were unreasonable. Her Honour then pointed out that the ground of unreasonableness does not apply to unreasonable interpretations of evidence, but to decisions that are themselves so unreasonable that no reasonable decision-maker could have made them. Her Honour was not persuaded that the matters identified by the appellant, whether singly or in combination, demonstrated that the Tribunal's decision was unreasonable to the requisite degree, or at all. The appellant's ninth question concerned whether he was entitled to a refund of his application fee. As the appellant did not suggest that he had asked the Tribunal for a refund of that fee and the Tribunal had refused to give it to him, the federal magistrate could not see how the question could raise an error of law on the part of the Tribunal. The appellant's tenth question asked whether the Tribunal had taken the right approach for the rehearing. The appellant argued that the Tribunal had failed to evaluate critically the steps taken by the respondent, but had concentrated on the fact that almost everything requested by the appellant had been supplied. The federal magistrate acknowledged that the Tribunal had observed that the only documents the appellant sought that had not been received were his annual performance reports and an entry in his occupational health medical file concerning the events of 2 September 1994. Her Honour was not persuaded that the Tribunal failed to evaluate critically the steps taken by the respondent. Her Honour referred to correspondence after the Tribunal hearing, in which the Tribunal wrote to the respondent's solicitors, referring to the respondent's Adelaide site, and asking if any of the required documents were held there. This demonstrated the active consideration of the Tribunal as to whether there were gaps in the respondent's investigation. The appellant's first additional question concerned this post-hearing correspondence. The appellant asked whether it amounted to a denial of procedural fairness. The appellant received copies of the letter from the Tribunal to the respondent and the respondent's reply. He then had some three months to make any further submission or invite the Tribunal to hear any further evidence. He did not do so. The federal magistrate concluded there was no denial of procedural fairness, because the appellant had had ample time to put to the Tribunal whatever he wished to say about the correspondence. The appellant's second additional question raised the issue of bias on the part of the Tribunal. The appellant argued that the Tribunal had prejudged his case, by carrying over its mind-set from its earlier decision to the second decision. The federal magistrate was not persuaded that the Tribunal carried over its mind-set. Her Honour was not persuaded that an informed lay observer would reasonably have apprehended that the Tribunal had carried over its mind-set. Her Honour held that it was not compulsory for the Tribunal to be constituted differently after remittal from the Court. The nature of the error that had been identified did not make it necessary or desirable that the Tribunal be reconstituted to avoid actual or apprehended bias. In her Honour's view, nothing the Tribunal did could lead to a conclusion that it was actually biased, or could have given rise to apprehended bias. The appellant's additional question three was whether the Tribunal disregarded the appellant's submission based on Khoh that a formal search request was not issued and the search did not go down to the filing cabinets level. In her Honour's view, the submission based on Khoh was dealt with sufficiently by the Tribunal. In his fourth additional question, the appellant referred to procedural fairness. He raised a question of fact about the Tribunal's understanding of the evidence. The federal magistrate held that the Tribunal's task was to determine whether all reasonable steps had been taken to find the relevant files. Even if there had been a denial of procedural fairness in relation to the Tribunal's conclusion on the particular item of evidence, it could not have made a difference to the decision. The appellant then raised in his fifth additional question the issue whether the Tribunal had denied him procedural fairness by revoking a summons to give evidence issued to a Mr Atkins. The appellant told the Tribunal on 7 March 2007 that the summons had not been served on Mr Atkins. He did not know the address of Mr Atkins. He asked the Tribunal to take steps to ensure the attendance of Mr Atkins. He told the Tribunal that Mr Atkins would tell it that he had taken no action in relation to the appellant's request for access to documents dated 24 December 1996. The Tribunal said that Mr Atkins and the respondent were not required to take any action until a valid request was received on 13 February 1998. The Tribunal considered that the evidence proposed to be adduced from Mr Atkins was not relevant to any issue in dispute and rescinded the summons. The federal magistrate held that the Tribunal was correct to rescind the summons to Mr Atkins. It was not material that Mr Atkins did not act on the request of 24 December 1996. The Tribunal accepted as a matter of fact that he did not act on that request. The question for the Tribunal was whether all reasonable steps had been taken by the time of the Tribunal's decision. The evidence proposed to be adduced from Mr Atkins was not probative as to this question. The file held by Mr Atkins had been provided to the appellant in any event.


case_outcome: cited

case_text: 4 of the notice of appeal focused on the way in which the Federal Magistrates Court had dealt with the appellant's attempt to make further submissions after the hearing of the appeal by that court. The federal magistrate dealt with this attempt in an addendum to her Honour's reasons for judgment. At [94]-[95], her Honour said: After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions. It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions. When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave. I did not at that stage read the purported post hearing submissions. The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions. The respondent filed material in response to that application, which was heard on 12 August 2008. The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem. He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event. At [96]-[97], her Honour cited Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20 ; (1981) 147 CLR 246 at 257-258 per Mason J and Stockdale v Alesios [1999] VSCA 128 ; [1999] 3 VR 169. Both these cases are authority for the proposition that a court cannot receive further submissions after a hearing without granting leave for such submissions. In the latter case at 179, Phillips JA spoke of certain exceptions to that general principle, "such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred."


case_outcome: applied

case_text: the Federal Magistrate identified at [10] of his reasons, what the appellant seeks is merits review of the Tribunal's fact finding function. That is not the role of this Court: see Pt 8 of the Act and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 ; (2003) 134 FCR 43 at [12] .


case_outcome: affirmed

case_text: appellant filed an application for review in the Federal Magistrates Court on 24 December 2008. One ground of review was specified, namely, that "[t]he decision of the Tribunal was made without jurisdiction or [was] affected by an error of jurisdiction". Five particulars were specified. They are set out at para [4] of MZYDA v Minister for Immigration & Citizenship [2009] FMCA 859. The Federal Magistrate dismissed the application for review. The appellant seeks prerogative relief of the kind issued in the exercise of the Federal Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth). The Notice of Appeal filed in this Court on 6 October 2009 was substantially a reproduction of the application filed in the Federal Magistrates Court (see [8] above). The ground of appeal, and the corresponding particulars, in this Court were: The decision of the Court / Tribunal was made without jurisdiction or is affected by an error of jurisdiction. Particulars The Court and the tribunal misconstrued and misinterpreted the convention criterion in that the test is not whether the Sri Lankan government was unable or unwilling to protect the [appellant], but rather whether the [appellant] owing to a well founded fear is unable or unwilling to avail himself the protection of the country. The Court and the tribunal clearly has not understood the criterion for refugee status and applied the wrong test and thereby fell into jurisdictional error. The tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the PA and JVP members / supporters an unfounded fear. There was no reference to any country information and the tribunal was duty bound to appraise itself of the situation and if it did refer to country information, there would have been detailed information about the violence that takes place at election time between the UNP and the PA and information specifically about the police force, reference to the police force being politicized and information about politicians who interfere with police activities and how politicians rampantly manipulate the police force. The Court and the tribunal have erred in that it did not take into account the fact that the [appellant's] mother and brother fear for their safety because it is common practice amongst political opponents in Sri Lanka to kidnap and murder family members in order to force the targeted person to cooperate with their demands. The tribunal did not properly consider the claim that the [appellant] would be persecuted on account of his membership of his father's family, being a particular social group. At the hearing of the appeal, the appellant requested an adjournment in order to seek legal assistance. The appellant submitted the adjournment was necessary for two reasons: so that the appellant could request that the first respondent to grant him working rights so that he could afford legal assistance; that the appellant was unable to make legal submissions without legal assistance. That application was refused: MZYDA v Minister for Immigration & Citizenship [2009] FCA 1389. The appellant made no substantive oral submissions to the Court, notwithstanding that the first respondent had explained to the appellant that he would be expected to do so both in a letter dated 17 November 2009 and by telephone. The appellant informed the Court that he had been in Australia for 14 years and he could not return to Sri Lanka. For the reasons that follow, I cannot identify an appellable error. The appeal has no prospects of success. I will now consider each particular in turn. GROUND 1(A): INCORRECT TEST APPLIED BY THE COURT AND TRIBUNAL


case_title: SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 ; (2003) 134 FCR 43


case_text: for the creditor developed an interesting argument based upon ss 459C J (inclusive) of the Corporations Act 2001 (Cth) that were said to be cognate with the provisions in question here. It was submitted that the approach to those provisions (exemplified by Centurian Constructions Pty Ltd v Beca Developments Pty Ltd (In Liq) (1996) 129 FLR 364 and David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265) would result in there being no effective proceeding unless the strict requirements of the Act are met. It would also follow that the defect could not be cured pursuant to s 306 of the Act because there is no effective proceeding as required by that section.


case_outcome: discussed

case_text: is pointed out by counsel for the creditor that each of subrules (2), (3) and (4) includes the word 'must' which, it is submitted, compels the conclusion that each is a mandatory requirement. Counsel was unable to refer to any direct authority as to the effect of non-compliance with r 30.02(4) of the 2001 Rules or the later r 3.02(3) of the Federal Magistrates Court (Bankruptcy) Rules 2006 , which is in similar terms. Counsel pointed out that the provision was also in similar terms to the former Federal Court Rule O 77 r 13(4). Although not directly on point, counsel drew the Court's attention to the decision of the Full Court in Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 ; (1999) 88 FCR 445 and the decision of Branson J in Crimmins v Glenview Home Units [1999] FCA 515 , dealing with other provisions of O 77 r 13. The decision in Hubner v Australia and New Zealand Banking Group Ltd does not provide any real guidance as, in that case, the application to set aside the bankruptcy notice had not been filed within the time for compliance with it. The Full Court's agreement with the finding that the proceedings were defective, in that the applications were not accompanied by appropriate affidavits, does not decide the issue here. The decision of Branson J in Crimmins v Glenview Home Units appears to have something for both sides. Her Honour said (at [11]): 'Unless the Court in any case exercises the discretion given to it by O 1 r 8 of the Federal Court Rules to dispense with the compliance with any of the requirements of the Rules, parties to litigation before the Court are bound by the Federal Court Rules .' No application was made in that case for dispensation. It was found that the affidavits which accompanied the application did not comply strictly with O 77 r 13(3)(c) (corresponding to r 30.02(3)(c)) but nonetheless the Court gave such a dispensation. There is a critical difference between rules of court, on one hand, and statutory obligations on the other. As shown by the decision in Crimmins v Glenview Home Units there is always an overriding power in the Court to dispense with the effect of rules of court. The applicable provision here was r 1.06 of the Federal Magistrates Court Rules 2001 . Although the Federal Magistrate indicated a disinclination to extend any leeway concerning the failure to serve in time in this case, his decision in that respect miscarried because of his misunderstanding as to the procedure to that date. Apart from not being aware of the orders extending the time for compliance with the bankruptcy notice, his Honour did not advert to the fact that the parties had appeared at the first return of the proceeding and that directions were made on that occasion in contemplation that the application would be heard in the normal way. The debtors argue that the time to contend that the proceeding was a nullity was on the first return date on 17 January 2006 and that such a position was effectively waived by what took place. It is submitted for the creditor that no waiver as such took place. It was submitted that cooperation in relation to procedural directions did not abandon a point fatal to the application which was taken before the Federal Magistrate when the matter came on for hearing. In my opinion, the proceeding was not a nullity, as the failure to abide by the rules as to service could have been excused. It is submitted for the debtors that the creditor has not been able to point to any prejudice that would arise if there were such dispensation. I am satisfied that the question as to whether there should be dispensation from failure to comply with the rule was not considered at first instance in the light of all of the relevant circumstances. Lastly, it was contended for the creditor that it is clear that there was no misstatement in the bankruptcy notice, and that, as there could only be one conclusion, I should deal with the issue and not return the matter to the Federal Magistrate. I indicated to counsel during the course of argument that I would not take that course. The merits are not so clear that I should enter upon that issue.


case_title: David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265


case_text: is pointed out by counsel for the creditor that each of subrules (2), (3) and (4) includes the word 'must' which, it is submitted, compels the conclusion that each is a mandatory requirement. Counsel was unable to refer to any direct authority as to the effect of non-compliance with r 30.02(4) of the 2001 Rules or the later r 3.02(3) of the Federal Magistrates Court (Bankruptcy) Rules 2006 , which is in similar terms. Counsel pointed out that the provision was also in similar terms to the former Federal Court Rule O 77 r 13(4). Although not directly on point, counsel drew the Court's attention to the decision of the Full Court in Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 ; (1999) 88 FCR 445 and the decision of Branson J in Crimmins v Glenview Home Units [1999] FCA 515 , dealing with other provisions of O 77 r 13. The decision in Hubner v Australia and New Zealand Banking Group Ltd does not provide any real guidance as, in that case, the application to set aside the bankruptcy notice had not been filed within the time for compliance with it. The Full Court's agreement with the finding that the proceedings were defective, in that the applications were not accompanied by appropriate affidavits, does not decide the issue here. The decision of Branson J in Crimmins v Glenview Home Units appears to have something for both sides. Her Honour said (at [11]): 'Unless the Court in any case exercises the discretion given to it by O 1 r 8 of the Federal Court Rules to dispense with the compliance with any of the requirements of the Rules, parties to litigation before the Court are bound by the Federal Court Rules .' No application was made in that case for dispensation. It was found that the affidavits which accompanied the application did not comply strictly with O 77 r 13(3)(c) (corresponding to r 30.02(3)(c)) but nonetheless the Court gave such a dispensation.


case_outcome: distinguished

case_text: for the creditor seeks to maintain the orders on other bases. The first is that a separate notice is required under s 41(5). The application to set aside the bankruptcy notice was not such a notice. Counsel was not able to refer to any authority which establishes that proposition. It was suggested that assistance may be gained from a passage from the judgment in Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255 ; (1999) 87 FCR 120 as follows (at [37]): 'The object of a debtor's notice under s 41(5) is to inform the creditor that the debtor disputes the bankruptcy notice and does so on the ground of a misstatement contained in that notice. The point of the notice is to draw to the creditor's attention the misstatement, thereby giving the creditor the opportunity to consider, for example, whether the bankruptcy notice should be withdrawn and a fresh notice, correcting the misstatement, issued. If the creditor is given no hint in the notice as to the nature of the misstatement, there is a considerable risk that the debtor will be able to take unmeritorious advantage of minor errors (such as the small mistake in the present case) and that unnecessary and wasteful litigation will eventuate. It is no answer to say that the creditor can ask for particulars, since the debtor would not be obliged to give any until after litigation had been instituted. Indeed, a debtor wishing to take advantage of the technicalities of the law of bankruptcy might be well-advised to say as little as possible for as long as possible about the true nature of the alleged misstatement in the bankruptcy notice.' The notice in that case was a separate letter. Subsection 41(5) is silent as to the method of giving notice. I can see no reason why it cannot be done by service of an application to set aside a bankruptcy notice in an appropriate form. It was faintly argued that this application was not in a form to give the necessary notice. I do not agree. Furthermore, it seems to me that the passage relied upon from Seovic Civil Engineering Pty Ltd v Groeneveld is neutral as to the point which arises here. As the application was served within the time allowed for payment, the subsection is satisfied. Failure to expressly advert to s 41(5) is not of any significance. It is true that 'notice' and 'application' are different words and that each is used in different parts of the Act. However, the two are not mutually exclusive. The section requires the giving of notice, not serving of a notice in any particular form. Counsel for the creditor contends that the failure on the part of the debtors to serve the process within three days as required by r 30.02(4) was fatal to the application. That failure certainly weighed with the learned Federal Magistrate, although he described that rule as being 'almost mandatory' in the events which had happened. The point had been taken, albeit briefly, in the written submissions for the creditor at the hearing. It is submitted that the Act is silent as to the procedure for setting aside a bankruptcy notice. That procedure is found only in the Federal Magistrates Court Rules 2001 as they then stood. Rule 30.02(4) was undoubtedly not complied with. No explanation was proffered for the failure to comply with that rule. Rule 30.02 is as follows: ' Requirements of application to set aside, or extend time for complying with, notice (1) This rule applies to: (a) an application to set aside a bankruptcy notice; or (b) an application for an extension of the time for complying with a bankruptcy notice. (2) An application must be accompanied by: (a) a copy of the bankruptcy notice; and (b) an affidavit stating: (i) the grounds in support of the application; and (ii) the date when the bankruptcy notice was served on the applicant; and (c) a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application. (3) If the application to set aside a bankruptcy notice on the ground that the debtor has a counter-claim, set-off or cross-demand mentioned in paragraph 40(1)(g) of the Bankruptcy Act , the affidavit must also state: (a) the date when the bankruptcy notice was served on the debtor; and (b) the full details of the counter-claim, set-off or cross-demand; and (c) the amount of the counter-claim, set-off or cross-demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and (d) why the counter-claim, set-off or cross-demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued. (4) The application and accompanying documents must be served on the respondent creditor within 3 days after the application is filed. ' [emphasis added]


case_text: In relation to Mr Rundle, ASIC relied upon evidence of asset dissipation prior to these proceedings. The transaction relied upon involved the transfer to his wife of his interest in their matrimonial home. It was described in my reasons for judgment given on 9 November 2007 in connection with consent orders affecting Mr Rundle: Australian Securities & Investments Commission In the Matter of Richstar Enterprises Pty Ltd ACN 009 071 968 v Carey (No 18) [2007] FCA 1718. In that case, as I noted, ASIC was prepared to accept the proposed consent orders which dispensed with the continued appointment of a receiver to Mr Rundle's property on the basis that: 1. The process of identification of the property was complete. 2. He had been generally cooperative with the receiver and ASIC expected that he would comply with the freezing orders then proposed. 16 ASIC drew something of a distinction between Mr Carey and Mr Rundle in its submissions on the basis that Mr Carey remains a key subject of its investigations. It placed particular emphasis on the disclosure, through the examination process and ancillary Court orders, of his involvement in overseas entities and the movement of certain funds overseas. He was said to have failed to disclose a significant involvement over many years with the entities under his control or acting on his behalf in relation to the movement of significant amounts of money at his direction into accounts under his control, located both in Australia and overseas. 17 ASIC pointed out that in proceedings in the Real Estate and Business Agents Supervisory Board Mr Carey deposed to having total assets with a current estimated value of $1,169,547. In disclosure affidavits in these proceedings he told the Court and the receiver that he had assets of a mere $69,457. One of the additional assets disclosed in the Real Estate and Business Agents Supervisory Board proceedings was an interest in the Westpoint Realty Pty Ltd (In Liq) rent roll said to have an estimated realisable value of $400,000.


case_text: The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.


case_title: Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190


case_title: Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391


case_title: ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180


case_title: ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684


case_text: As was pointed out by Weinberg J in Mobileworld Operating Pty Ltd v Telstra Corporation Limited [2005] FCA 1365 at par [21] : "The threshold for 'a serious question to be tried' is not particularly onerous". 16 Although there may be a dispute as to some of the relevant facts involving the activities of the second respondent and Mr Locke prior to the painting of the first respondent's store in Cheltenham Road, there is no real factual dispute about the painting and get up of the respondents' store. Further, there was no challenge by the respondents to the fact that the name "Clark Rubber" had become distinctive and was capable of appropriate protection. However, this case is not about the appropriation of a name but rather about the appropriation of get up, albeit in the context of a colour scheme. 17 The respondents submitted that the first respondent's premises was sufficiently dissimilar in its appearance to the Clark Rubber stores and it did not an amount to an attempt to pass itself off as a Clark Rubber store. Further, the respondents contended that there was no proprietorial stake in the colour yellow per se which they contended was the yardstick of the applicants' claim. The respondents also contended that the use of the "Oasis Foam & Rubber" logo would be sufficient to enable customers not to be misled as to the identity or association of the first respondent's store.


case_text: I consider that there is a serious question to be tried that Clark Rubber stores are well known to the Australian public and Australian consumers by reference to the distinctive Clark Rubber colour scheme which they display and have displayed for many years. I also consider that there is a serious question to be tried that what the applicants have described as the Clark Rubber colour scheme, particularly its yellow background, has acquired a secondary meaning in relation to Clark Rubber stores and has become distinctive of Clark Rubber stores. In this respect it is significant to note that the colours adopted and used in Clark Rubber stores are not functional or utilitarian in their nature. They do not have an ornamental or economic function: see Philmac Pty Ltd v Registrar of Trade Marks [2002] FCA 1551 ; (2002) 126 FCR 525 at 546. There is no suggestion that the goods sold at Clark Rubber stores naturally bring to mind or suggest the colours of the Clark Rubber colour scheme. As Senior Counsel for the applicants submitted, the colours chosen, and their juxtaposition, is entirely idiosyncratic. It follows that there is a serious question to be tried that the Clark Rubber colour scheme indicates a distinctive connection in the course of trade between the colours in the Clark Rubber colour scheme and their relationship to Clark Rubber stores. 19 There is also a serious question to be tried that the first respondent by painting or causing to be painted the outside of its store in the manner in which it has, has passed off the first respondent's store as and for a business which is associated in some way with the Clark Rubber stores and that its conduct in so painting the outside of its store is misleading or deceptive or likely to mislead and deceive persons who see it before entering the store. 20 Although one can point to differences between the outside façade of the Clark Rubber stores and the first respondent's store in relation to the painting applied to them, and although the words "Clark Rubber" appear on the Clark Rubber stores and the words "Oasis" will appear on the first respondent's store, the critical issue will be the visual impression created by the façade of the first respondent's store on persons who see it and whether they will consider there is an association with Clark Rubber stores. This is not a case where the consumers will be able to undertake a side by side comparison as they might with products on the store's shelf. There is a serious question to be tried that the Clark Rubber colour scheme is quite distinctive and that it creates a strong impression with consumers who view it independently of the name "Clark Rubber".


case_outcome: referred to

case_text: As indemnity costs are sought in a number of the proposed orders it will be convenient, before turning to the circumstances in which the various costs orders are sought, to outline the principles which govern the determination of applications for the award of indemnity costs. These principles are, conveniently, drawn together in the recent judgment of Gilmour J in Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 at [3] and [4]. His Honour there said: "An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR [151] at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes & Associates Pty Limited v [Kimberly-Clark] Australia Pty Limited (1994) 52 FCR [201]; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] . In Colgate-Palmolive, (at p 233) Sheppard J identified various categories which might give rise to an award of indemnity costs. These include: • the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud; • evidence of particular misconduct that causes loss of time to the Court and to other parties; • the commencement or continuation of proceedings for an ulterior motive; • wilful disregard of known facts or clearly established law; • the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and • an imprudent refusal of an offer to compromise." 4 The principal orders sought in the notice of motion dated 4 October 2007 were orders requiring the respondents and cross-claimants to provide further and better particulars of their pleadings. Those further and better particulars had been requested on 4 June 2007. They had not been provided despite consent orders having been made on three occasions (in June, July and August 2007) for them to be provided. 5 The notice of motion was returnable on 18 October 2007. On that day senior counsel for the respondents obtained leave to file and serve amended defences. He advised the Court that, having regard to the pleadings in those amended defences, it would be inappropriate and unnecessary to renew the orders for provision of further and better particulars of the defences.


case_text: As to the time spent on objections to admissibility of affidavit evidence, in many instances objections taken by Bickfords were unsuccessful. However, some objections taken were successful, and Hansen was given the opportunity during the trial to mend its hand. In particular, Bickfords' objections to Mr Alford's evidence were successful, which took up a significant part of the hearing and submissions. Nevertheless, I have come to the view that this is not a case where Bickfords was involved in 'the injudicious pursuit of issues without substance' (see eg Stena [2007] FCA 1141 at [12] ) or was involved in any unreasonable or inappropriate conduct (see eg BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [18] ). In this proceeding the evidence and its presentation were important, and Bickfords was entitled to take the objections, although some were not upheld.


case_text: In the ordinary course costs would follow the event and, accordingly, Hansen would pay Bickfords' costs of the claim and Bickfords would pay Hansen's costs of the cross-claim: see eg Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141 at [10] . 3 As Tamberlin J observed in Stena [2007] FCA 1141 at [11] , an 'issues' approach can be adopted in certain cases: Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] . 4 It is contended by Hansen that a problem with adopting the ordinary course of costs following the event is that all of the evidence led by Hansen was referable both to the claim and the cross-claim. In other words, Hansen's evidence of exposure in Australia was relevant to the claim upon which it failed and also to the cross-claim upon which it succeeded, including evidence led by Hansen of reputation after April/May 2006. Of course, in relation to the evidence of reputation after April/May 2006, the evidence of reputation led by Hansen was irrelevant to its claim, although relevant to defending the cross-claim. 5 Accordingly, taking into account the overlapping evidence on the claim and cross-claim and the difficulties this would present for the taxing officer, Hansen submits that, subject to dealing with costs covering Bickfords' unsuccessful objections to evidence and failure to admit certain facts, the order should be that each party bears its own costs of the proceeding. Hansen then proposed that in view of these actions of Bickfords, the costs order should be that Bickfords pays 30% of Hansen's costs of the proceeding. 18 As to the time spent on objections to admissibility of affidavit evidence, in many instances objections taken by Bickfords were unsuccessful. However, some objections taken were successful, and Hansen was given the opportunity during the trial to mend its hand. In particular, Bickfords' objections to Mr Alford's evidence were successful, which took up a significant part of the hearing and submissions. Nevertheless, I have come to the view that this is not a case where Bickfords was involved in 'the injudicious pursuit of issues without substance' (see eg Stena [2007] FCA 1141 at [12] ) or was involved in any unreasonable or inappropriate conduct (see eg BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [18] ). In this proceeding the evidence and its presentation were important, and Bickfords was entitled to take the objections, although some were not upheld.


case_text: has since been applied by other single judges: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); and Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 at [4] (per Tracey J). More recently a Full Court, in Hurst v State of Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562 , accepted that s 46PO(3) imposed "temporal limits" on any claim brought under s 46PO(1). The Court was referred to Charles and its reasoning proceeded on the basis that Charles was correctly decided.


case_text: a single judge of the Court I should follow Katz J unless I thought that he was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J) and the authorities there cited. I am not persuaded that his Honour was clearly wrong for the reasons advanced by Ms Crvenkovic or for any other reason. On the contrary, I respectfully agree with His Honour's reasoning. I am fortified in this view by the fact that, although the Full Court in Hurst did not expressly approve Charles , its reasoning assumed that Katz J was correct in his construction of s 46PO(3).


case_outcome: followed

case_text: the University sought further and better particulars of Ms Crvenkovic's Statement of Claim she responded by identifying many alleged acts or omissions which occurred after she had made her complaint to the Commission. The University objected and sought a direction that Ms Crvenkovic would not be able to rely, at trial, on events which post-dated the lodging of the complaint with the Commission. The University relied on the decision of Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 in which his Honour held (at 580) that s 46PO(3) prevented a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission. Despite being referred to this decision, counsel for Ms Crvenkovic maintained that she was entitled to rely on discriminatory acts which had allegedly occurred after 28 February 2008. Having heard argument on the point I have determined that a direction of the kind sought by the University should be made. This will ensure that time and expense is not wasted by the parties in preparing for trial or at the trial. Counsel for Ms Crvenkovic argued the preliminary point at two levels. He contended, first, that a different construction should be placed upon s 46PO(3) than that which commended itself to Katz J. Alternatively, counsel contended that Charles was distinguishable. Katz J explained his approach to the construction of s 46PO(3) in the following passages at 580-1: "37 It appears to me that s 46PO(3) of the [Act] is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the [Act]; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint. Paragraph (a) of s 46PO(3) of the [Act] proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed. Paragraph (b) of s 46PO(3) of the [Act], on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged." His Honour found support for his construction of s 46PO(3) in other provisions of the Act which prevented proceedings being commenced in the Court before an attempt had been made to resolve disputes by conciliation under the auspices of the Commission (see s 46PF) and in various secondary materials such as Explanatory Memoranda and Parliamentary Debates. Charles has since been applied by other single judges: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); and Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 at [4] (per Tracey J). More recently a Full Court, in Hurst v State of Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562 , accepted that s 46PO(3) imposed "temporal limits" on any claim brought under s 46PO(1). The Court was referred to Charles and its reasoning proceeded on the basis that Charles was correctly decided. Ms Crvenkovic contended that s 46PO(3) should be read as if the words "the subject of" in its two paragraphs did not appear and that the reference to "practices" in para (b) comprehended "conduct following the termination of the complaint [which could] be said to arise out [of] identical practices that formed the subject matter of the terminated complaint." It was also contended that the terms in which the Court's powers to grant relief to a complainant under s 46PO(4) , (6) and (7) were not consistent with there being a temporal limit of the kind which Charles had found to be imposed by s 46PO(3). I found these arguments to be unconvincing. Both paragraphs of s 46PO(3) would be rendered meaningless by the notional omission of the words "the subject of". The use of the word "practices" in s 46PO(3)(b) is apt to refer to practices which occurred prior to the lodging of a complaint. The fact that they continued to be implemented thereafter may support the making of a further complaint but this possibility does not compel the conclusion that s 46PO(3) should be construed in a manner contended for by the applicant. If the Court finds that unlawful discrimination has occurred it may grant one or more of the orders provided for in s 46PO(4). These orders may readily be applied to unlawful discriminatory acts, omissions or practices which have been the subject of complaint to the Commission. Section 46PO(6) provides for the granting of interim injunctions. Whilst the granting of such injunctions might be appropriate where conduct, which has been the subject of complaint to the Commission, has continued or been resumed, it does not necessarily follow that s 46PO(3) does not impose the temporal limit which was recognised in Charles . Section 46PO(7) merely provides the Court with power to discharge or vary earlier remedial orders made under the section. As a single judge of the Court I should follow Katz J unless I thought that he was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J) and the authorities there cited. I am not persuaded that his Honour was clearly wrong for the reasons advanced by Ms Crvenkovic or for any other reason. On the contrary, I respectfully agree with His Honour's reasoning. I am fortified in this view by the fact that, although the Full Court in Hurst did not expressly approve Charles , its reasoning assumed that Katz J was correct in his construction of s 46PO(3). Ms Crvenkovic sought to distinguish Charles on three bases. They were that: In my view none of these matters has any bearing on the proper application of s 46PO(3) to the proceeding commenced by Ms Crvenkovic. There will, accordingly, be a direction that Ms Crvenkovic not be at liberty to lead any evidence directed to establishing that the University, by act or omission, unlawfully discriminated against her after 28 February 2008.


case_text: has since been applied by other single judges: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); and Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 at [4] (per Tracey J). More recently a Full Court, in Hurst v State of Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562 , accepted that s 46PO(3) imposed "temporal limits" on any claim brought under s 46PO(1). The Court was referred to Charles and its reasoning proceeded on the basis that Charles was correctly decided. As a single judge of the Court I should follow Katz J unless I thought that he was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J) and the authorities there cited. I am not persuaded that his Honour was clearly wrong for the reasons advanced by Ms Crvenkovic or for any other reason. On the contrary, I respectfully agree with His Honour's reasoning. I am fortified in this view by the fact that, although the Full Court in Hurst did not expressly approve Charles , its reasoning assumed that Katz J was correct in his construction of s 46PO(3).


case_title: Maghiar v State of Western Australia [2002] FCA 262


case_title: Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492


case_text: On 4 December 2003, after a contested hearing in the above proceedings, I ordered that the present applicant, Mr Kemp, be joined as a party to each of the proceedings (see Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315). I did so in reliance on unchallenged evidence which tended to establish that Mr Kemp is a descendant of the Pirripaayi people who are traditionally associated by Aboriginal law and custom with an area which includes the Saltwater land. 3 In Davis-Hurst at [14]-[15] I observed: 'It is apparently because of resource implications that Mr Kemp does not wish to advance a claim for a determination of native title in respect of Saltwater, either on his own behalf, or on behalf of himself and other living descendents of the Pirripaayi people. However, he is concerned that a determination in favour of the applicant would give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater. Mr Kemp's concern is not alleviated by the possibility that there may be extensive, or even complete, overlaps between the present claimant group and the living descendants of the Pirripaayi people. Mr Kemp is further concerned, as I understand him, that it is possible, or even likely, that the applicant is the wrong person to represent the claimant group, however described, in these proceedings. Mr Kemp believes, on the basis of information which he has obtained from Mr Marr, that under traditional Aboriginal law and custom a woman cannot claim the areas of land the subject of the applications. He also believes, apparently on the same basis, that the applicant may not accept, or perhaps be aware of, the correct dreaming story and the customary laws of the area in question. As is mentioned above, his belief is that the applicant accepts a version of the history of the claim areas that fails to give proper recognition to the connection of the Pirripaayi people to Saltwater.' 4 I noted at [19] that Mr Kemp's evidence disclosed two underlying concerns. First, a concern that Dr Davis-Hurst and the Kattang people of the Manning Valley are not the group who hold the common or group rights comprising the native title in the Saltwater land. Secondly, a concern as to the identity of the traditional laws and customs under which that native title is held. 5 In Davis-Hurst at [27] I concluded that Mr Kemp, as a descendant of the Pirripaayi people, had standing to oppose the making of the determinations of native title sought by Dr Davis-Hurst. No appeal was instituted against the order made on 4 June 2003 joining Mr Kemp as a respondent to the applications for determinations of native title in the Saltwater land. 6 On 11 August 2005 the second respondent, the Minister for Lands for the State of New South Wales, applied to the Registrar of the National Native Title Tribunal pursuant to s 24CG of the Native Title Act 1993 (Cth) ('the Act') for the registration of an indigenous land use agreement ('the Agreement') in respect of the Saltwater land. Mr Kemp is not a party to the Agreement. The parties to the Agreement are the second to seventh respondents to this proceeding; that is, two Ministers of State for New South Wales, the Director-General of a New South Wales government department, the local government body for the relevant area, Dr Davis-Hurst and an entity described in the recitals to the Agreement as having been incorporated under the Aboriginal Councils and Association Act 1976 (Cth) for the purpose of holding native title in trust for the Saltwater People. 7 The recitals to the Agreement refer to the proceedings in this Court for determinations of native title in respect of the Saltwater land. They then record: 'D. The State on the basis of evidence provided by the Registered Native Title Claimant is prepared to recognise that the Saltwater People hold native title rights and interests in the Saltwater National Park and part of the Khappinghat Nature Reserve. E. The Parties have agreed to enter into this Agreement for the purpose of: (a) recognising that the Applicant and the Saltwater People hold native title in the land and waters concerned; (b) regulating the exercise by the Saltwater People and the Saltwater Tribal Council of the native title rights and interests in the Agreement Area; (c) providing for a role for the Saltwater Tribal Council in the future management of the Saltwater National Park and part of the Khappinghat Nature Reserve. (d) providing for the withdrawal of native title determination applications NC95/4 (NG6013/98) and NC95/5 (NG6014/98); and (e) settling other matters between the Parties. F. The Greater Taree City Council, the land manager of the former Saltwater Reserve, agrees with and supports the making of this Agreement to resolve native title applications NC95/4 (NG6013/98) and NC95/5 (NG6014/98).'


case_text: I take the proper approach to the determination of this issue to be as stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 384. Their Honours there said: 'the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' (footnotes omitted) 49 The two competing views as to the meaning of the words in s 24CG(3)(b)(i) are: (a) that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or (b) that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area. 50 It is appropriate to consider whether any of the factors identified in the passage from Project Blue Sky cited above require the words of s 24CG(3)(b)(i) to be read in a way that does not correspond with their literal or grammatical meaning. The factors upon which the respondents placed reliance are the following. 51 First, as they submitted, the words 'may hold native title' in s 24CG(3)(b)(i) are not words of expansion but rather are intended to demonstrate that proof of native title is not necessary before an area agreement may be registered. I accept that the words 'may hold native title' demonstrate that proof of native title is not necessary before an area agreement may be registered. However, this does not, of itself, assist in determining which of the two competing views of the meaning of s 24CG(3)(b)(i) should be accepted. 52 Secondly, s 24CL makes it impossible for an area agreement to be registered unless all persons who were registered native title claimants at the end of the notice period, and all persons who subsequently became registered native title claimants pursuant to applications made before the end of the notice period, are parties to the agreement. The respondents argued that s 24CL discloses an intention that a person like Mr Kemp should not be able to prevent the registration of the area Agreement unless he first becomes a registered native title claimant; as Mr Kemp chose not to adopt that course, the group represented by Dr Davis-Hurst was free to obtain registration of the agreement without his being a party to it and without obtaining his authority to make it. 55 What then are the factors which favour the first of the two competing views as to the meaning of the words 'all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement' in s 24CG(3)(b)(i)? As the passage from Project Blue Sky cited above indicates, the strongest argument in favour of the first of the competing views is the literal meaning of the words. The words do not readily admit of limitation. No real difficulty would have attended drafting the passage in more limited terms. 56 Additionally, comparable words, namely 'any person claiming to hold native title in relation to land or waters in the area covered by the agreement' , are used in s 24CH(2)(d)(ii) of the Act with an apparently expansive meaning. In the context of s 24CH(2)(d)(ii) the comparable words must, I think, be intended to include any person who advances a claim in opposition to the claim to native title recognised by the agreement. The paragraph is intended to place such a person on notice that, in effect, the agreement might be registered, irrespective of his or her views as to its contents, unless he or she formally asserts a claim to native title. (see [53] above) 57 Finally, a determination that the words of s 24CG(3)(b)(i) are not to be given their literal meaning could result in interference with, if not loss of, a person's native title rights in respect of the area covered by the agreement. While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect as if all persons holding native title in relation to any of the land or waters in the area who are not already parties to the agreement were bound by the agreement in the same way as the native title group (s 24EA). As a consequence a person who has a prima facie claim to hold native title but who is not a party to the agreement would be bound by any consents thereby given to the doing of future acts or classes of future acts (s 24CB(a) and (aa)). Indeed, it appears that the person could be bound by a surrender of native title rights and interests in the area to the Commonwealth, a State or a Territory and the consequent extinguishment of those rights and interests (s 24CB(e) and s 24EB(1)(d) and (3)). 61 Ultimately I am not persuaded that any of the factors identified in the passage from Project Blue Sky cited in [48] above requires the words of s 24CG(3)(b)(i) to be read in a way that does not correspond to their literal meaning. I decline to so read them. 62 For the above reasons, I conclude that the Registrar erred in concluding that the requirements of s 24CG(3)(b) had been met in the present case. I further conclude that it would not be appropriate to refrain from setting aside her decision on the basis that the error was not material because it was unnecessary for Mr Kemp to authorise the making of the agreement. 63 The decision of the Registrar that the Agreement must be registered pursuant to s 24CL(1) of the Act will be set aside and the application for registration remitted to the Registrar to be determined according to law. I will hear the parties on the appropriate order or orders, if any, to be made as to costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 25 July 2006 Counsel for the Applicant: D Burwood Counsel for the First Respondent: The First Respondent, who filed a submitting appearance, did not appear Counsel for the Second - Fourth Respondents: S Lloyd and S Free Solicitor for the Second - Fourth Respondents: Crown Solicitor's Office (State of New South Wales) Counsel for the Fifth and Sixth Respondents: L Clegg Solicitor for the Fifth and Sixth Respondents: Gilbert + Tobin Counsel for the Seventh Respondent: The Seventh Respondent did not appear Date of Hearing: 19 May 2006 Date of Judgment: 25 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/939.html


case_title: Abebe v Commonwealth (1999) 197 CLR 570

case_text: The Minister submitted that the Tribunal's conclusions were open for the reasons it gives. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 570 at [137].


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_text: As to the first matter the appellant pointed to as infecting the Tribunal's credit finding with respect to the appellant the rejection of his account that the police could not find him because he lived 30 kilometres away from the address which he had given them as being implausible the appellant submitted that there was no probative material to support the Tribunal's finding and that this involved jurisdictional error. It was the alleged capricious reasoning which infected the credit finding and the credit finding was critical to the outcome. Reliance was placed on what was said by Gummow and Hayne JJ in the High Court in Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [38] : 'The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.' And by Madgwick J in this Court in SZAPC v Minister for Immigration & Multicultural Affair [2005] FCA 995 where, after referring to the passage from their Honours' reasons in SGLB recited above, said at [57], [58]: 'Thus it seems to me that the position arrived at in the High Court may be summarized in the following way: 1. A 'no evidence' attack will only suffice as such if it can be said that there is an actual 'absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends', that is, if there is no evidence to support a finding of a jurisdictional fact. 2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously not 'according to humour', but according to law. 3. It is a critical legal requirement that the determination should not be able to be characterized as 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one. 4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ. To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality. A fortiori, when a crucial finding to the determination has been made without evidence to support it, there will be a very real question whether, to that extent, the determination is not objectionably arbitrary.'


case_text: The Minister further submitted that his Honour below correctly held that the Tribunal was entitled to regard the appellant's claims of persecution as undermined by his continuous address at the one location in India, and to reject his claims that the police could not find him. Such reasoning is not illogical, and even if it were, it would not amount to jurisdictional error. Reliance for this submission was placed on what was said by the Full Court in NACB v Minister for Immigration & Multicultural Affairs [2003] FCAFC 235 at [29] , [30]: 'In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a "warning note" of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT. Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT. However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT's reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.' See also NATC v Minister for Immigration & Multicultural Affairs [2004] FCAFC 52 at [25] ; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] ; and VWFP & VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 per Young J at [77].


case_title: NATC v Minister for Immigration & Multicultural Affairs [2004] FCAFC 52


case_text: The Minister submitted that the Tribunal's findings concerning the appellant's credit are matters of fact par excellence in reliance on what McHugh J had said in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] : '... a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case form the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.'


case_text: As to the first matter the appellant pointed to as infecting the Tribunal's credit finding with respect to the appellant the rejection of his account that the police could not find him because he lived 30 kilometres away from the address which he had given them as being implausible the appellant submitted that there was no probative material to support the Tribunal's finding and that this involved jurisdictional error. It was the alleged capricious reasoning which infected the credit finding and the credit finding was critical to the outcome. Reliance was placed on what was said by Gummow and Hayne JJ in the High Court in Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [38] : 'The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.' And by Madgwick J in this Court in SZAPC v Minister for Immigration & Multicultural Affair [2005] FCA 995 where, after referring to the passage from their Honours' reasons in SGLB recited above, said at [57], [58]: 'Thus it seems to me that the position arrived at in the High Court may be summarized in the following way: 1. A 'no evidence' attack will only suffice as such if it can be said that there is an actual 'absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends', that is, if there is no evidence to support a finding of a jurisdictional fact. 2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously not 'according to humour', but according to law. 3. It is a critical legal requirement that the determination should not be able to be characterized as 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one. 4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ. To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality. A fortiori, when a crucial finding to the determination has been made without evidence to support it, there will be a very real question whether, to that extent, the determination is not objectionably arbitrary.' 14 His Honour below dealt with this submission at [20] [22] as follows: 'The Court rejects the claims that the reasoning of the Tribunal was not supported by logical grounds; that the issue was irrelevant, and that the finding was capricious. The determination has a rational basis. The test in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 that on a critical issue the Tribunal do more than reject evidence because it is implausible, was met as the Tribunal undertook a rational examination of the material before it. Also, the test in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 was complied with. It cannot be said that the Tribunal's decision is arbitrary; its finding was made on logical grounds and on the material before it. The decision in SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 was referred to, in particular the passage in [59] that refers to the Tribunal's "bare, unsupported assertions that objective facts...were 'somewhat implausible'". In the current case, the finding of the Tribunal was properly open to it on the material before it. It did not reach its conclusion on bare unsupported assertions ... The decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 was referred to, in particular paragraph [17] and the finding that "[t]he tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling." In the present case, the Tribunal set out [its] reasoning process leading to its ultimate conclusion. In Tran , Justice Rares found what amounts to Wednesbury unreasonableness. No such finding could be made here.'


case_text: The appellant submitted that his Honour was too generous to the Tribunal. While it is true that the Tribunal has exposed its reasoning process as to why it considered the appellant's account to be implausible, the appellant submitted that it is this very reasoning process which is flawed. The Tribunal reasoned that it was not plausible for the appellant to escape the attention of the police by giving them an address that was 30 kilometres distant from where he actually lived. However, the appellant's submission is that the explanation was not implausible. The Tribunal simply asserted that it was and cited no evidence to support the reasoning. The appellant argued that to simply make an assertion to support a finding which does not otherwise flow from the material is simply not a sufficient basis: SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 at [59] ; Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [17] . 14 His Honour below dealt with this submission at [20] [22] as follows: 'The Court rejects the claims that the reasoning of the Tribunal was not supported by logical grounds; that the issue was irrelevant, and that the finding was capricious. The determination has a rational basis. The test in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 that on a critical issue the Tribunal do more than reject evidence because it is implausible, was met as the Tribunal undertook a rational examination of the material before it. Also, the test in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 was complied with. It cannot be said that the Tribunal's decision is arbitrary; its finding was made on logical grounds and on the material before it. The decision in SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 was referred to, in particular the passage in [59] that refers to the Tribunal's "bare, unsupported assertions that objective facts...were 'somewhat implausible'". In the current case, the finding of the Tribunal was properly open to it on the material before it. It did not reach its conclusion on bare unsupported assertions ... The decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 was referred to, in particular paragraph [17] and the finding that "[t]he tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling." In the present case, the Tribunal set out [its] reasoning process leading to its ultimate conclusion. In Tran , Justice Rares found what amounts to Wednesbury unreasonableness. No such finding could be made here.'


case_title: Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229


case_title: VWFP & VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231


case_title: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286


case_text: The Minister submitted that provided there was evidentiary material on which it was open to the Tribunal to reach its conclusion on the appellant's credit, no error is demonstrated: W148/00A v Minister for Immigration & Multicultural Affairs (2001) ALR 703 (FCAFC) at [64] [69] per Tamberlin and R D Nicholson JJ.


case_text: If, of course, there is simply no evidence to support the contended inconsistency, that becomes a relevant matter but in the face of an evaluation of the evidence and having had the benefit of seeing the appellant, the conclusions as to inconsistency were open to the Tribunal irrespective of whether another Tribunal may have reached, or this Court or another Court, may have reached a different conclusion. In Ex parte Durairajasinghan v Minister for Immigration and Multicultural Affairs [2000] HCA 1 ; (2000) 168 ALR 407 at 423 at paragraph 67, McHugh J makes plain that findings of credibility are a matter for the Tribunal. His Honour observed: 'However, this was essentially a finding as to whether the prosecutor should be believed in his claim. A finding on credibility is the function of the primary decision maker par excellence.'


case_text: Similar observations have been made as to those matters. In W148/00A v Minister for Immigration and Multicultural Affairs (2000) 185 ALR 703, the Full Court of the Federal Court, per Lee, Tamberlin and R.D. Nicholson JJ observed at [65]: 'It is important to identify, in this case, the precise question for determination by the minister and the tribunal. The relevant question is whether the minister and the tribunal could be "satisfied" that the case for refugee status has been made out: see ss 65 and 415 of the Act. The High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259; per Brennan CJ, Toohey, McHugh and Gummow JJ, considered this requirement of satisfaction and observed that the decision under review is of a subjective nature and is not the same as a review of an entirely objective determination of refugee status. This distinction underlies the need for care when viewing the decision of the tribunal, especially in relation to the question of credibility, because the review is as to the satisfaction of the minister or his delegate and not as to the determination of the minister or the delegate.'


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: McKinnon v Pattison [2009] FMCA 695

case_text: his first judgment, Phipps FM dismissed an application by the appellants that he disqualify himself from hearing an application to review a decision of a Registrar of the Court below made on 25 May 2009 ("the First Judgment"); see McKinnon v Pattison [2009] FMCA 695. The substantive application before Phipps FM was for an extension of time under s 33(1)(c) of the Bankruptcy Act 1966 (Cth) ("the Act") for the appellants to give a taxing officer notice of their wish to have the costs and remuneration of their trustee in bankruptcy taxed pursuant to reg 8.09 of the Bankruptcy Regulations 1996 (Cth) ("the Regulations").


case_title: McKinnon v Pattison [2009] FMCA 696

case_text: the second judgment, his Honour dismissed the application for review and ordered the appellants to pay the costs of that application and the costs before the Registrar ("the Second Judgment"); see McKinnon v Pattison [2009] FMCA 696. GROUNDS OF APPEAL (i) Disqualification issue The appellants claim that Phipps FM should have disqualified himself from hearing the application because he had heard a similar matter previously. They also allege that the proceeding was part-heard before another Federal Magistrate. (ii) Substantive issue The appellants further allege that his Honour's judgment was made on "grounds that are not a factor for consideration" in the proper exercise of his discretion. (ii) Other grounds The appellants contend that Phipps FM failed to give them time "to read two submitted precedents" which were referred to in the reasons for judgment. In addition the appellants submit that his Honour "failed to seek the requested info from the respondent to be returnable 19 June 2009". Section 33(1)(c) of the Act provides that the Court may: extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time. Regulation 8.09(1) of the Regulations provides that: Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim. There is no provision of the Act which expressly provides that the time under reg 8.09(1) may not be extended or abridged pursuant to s 33(1)(c). DISQUALIFICATION ISSUE


case_text: a similar vein, the appellants made an application at the commencement of the appeal hearing seeking that I disqualify myself on the basis that I had previously heard an application by the appellants on 3 November 2005. That earlier application sought a stay of sequestration orders against the appellants' estates and is referred to by Dowsett J in McKinnon v Commonwealth Bank of Australia [2005] FCA 1898. No contested issues of fact or credibility fell for determination in that application. Simply because I dealt with an earlier matter involving the appellants, I did not consider that I was required to disqualify myself from hearing this appeal and ruled accordingly.


case_title: Abeyratne v Trkulja (1998) 90 FCR 253

case_text: Magistrate Phipps did not otherwise refer to Vince . His reliance on Abeyratne v Trkulja (1998) 90 FCR 253 was unexceptional. Doubtless the appellants were seeking to invoke a broad power in their favour to have justice to them done as they saw it. However there is nothing in the cases relied on by Phipps FM which was adverse to their position. The appellants' grounds of appeal based on this issue are also without merit. SUBSTANTIVE ISSUE Background The power to extend time under s 33(1)(c) of the Act is a broad discretionary power. It is unfettered and must be exercised with a view to doing justice between the parties; see Abeyratne at 262 and see also Vince v Sellers [2004] FMCA 564 at [6] . In order to evaluate whether it is just to grant an extension of time it is necessary to consider all the factors which militate for and against an extension in the circumstances of the particular case. Examples of relevant factors which may need to be taken into account include: the reason why the applicant did not perform the required act within the statutory time limit, the prejudice to other parties of allowing an extension of time and the public policy interest in allowing or refusing an application to extend time.


case_title: Vince v Sellers [2004] FMCA 564


case_title: House v The King (1936) 55 CLR 499

case_text: the exercise of his discretion pursuant to s 33(1)(c) his Honour focused solely on the question of whether the grant of an extension of time would be futile as it would not improve the financial circumstances of the appellants. His Honour did not appear to consider any other relevant factors in the exercise of his discretion. In denying an extension of time, on the ground of "futility" alone, his Honour erred in the exercise of his discretion by allowing one matter to guide the exercise of that discretion to the exclusion of other material considerations; see, by way of analogy, House v The King (1936) 55 CLR 499 at 504 5 per Dixon, Evatt and McTiernan JJ. It can be seen by the ensuing discussion at [33] [42] below that "futility" was not the sole criterion for consideration.


case_text: discretion in the Court below having miscarried, it is appropriate that this Court should exercise that discretion afresh; see Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120 at [5] per Goldberg, Jacobson and Tracey JJ. Consideration of the exercise of the discretion In determining whether to grant the extension of time requested by the appellants it is necessary to take into account a number of factors, in addition to the futility factor. First, the appellants' failure to lodge their notice for taxation within the required time period does not appear to be due to deliberate delay on their part. The appellants were dissatisfied with the claim for remuneration by the trustee and gave early notice to him that they would seek a taxation of the claim. The appellants attempted to lodge a notice within the requisite time and appear to have made a genuine mistake about whom the notice should have been sent. They did not realise that they needed to apply to ITSA. The fact the appellants have provided a reasonable explanation as to why they failed to comply with the requirements of reg 8.09(1) is a matter which weighs in favour of granting an extension of time.


case_text: third factor which needs to be considered is that there is a public interest in ensuring that the time limits set out in the Regulations are adhered to. As has been noted the purpose of the time limit in reg 8.09(1) is to ensure that finality and certainty are brought to the quantification of a trustee's remuneration within a relatively short period of time; see Wenkart v Pantzer (No 6) [2003] FCA 1210 at [34] per Lindgren J. This would ordinarily militate against the granting of an extension of time. However, in the present case, the respondent was aware prior to the expiry of the statutory time limit in reg 8.09(1) that the appellants intended to request a taxation of his remuneration. The respondent cannot contend that he was surprised by the appellants' request to be allowed to lodge a notice for taxation after the 28 day period. The respondent has also not argued that he made any arrangements relying on the fact that the appellants failed to lodge a notice in conformity with reg 8.09 which will be disrupted if an extension of time is granted. Consequently, this argument is of little weight in the context of this case. Fourth, the respondent did not argue before Phipps FM that he would suffer any other prejudice if the extension of time is granted. However, in his written submissions the respondent asserted that: In circumstances where the appellants are bankrupt and have not paid the outstanding costs orders made by Moore R and Phipps FM it would not be doing justice to the respondent or the creditors of the appellants to allow the appellants to seek a taxation, which would incur further costs to the respondent and thereby reduce the amount available to creditors. This contention appears to assume that the remuneration claimed by the respondent will be upheld in any taxation. Whether the respondent is correct in his claim for remuneration and his entitlement to his costs of taxation may be a matter for the taxing officer. It is not for this Court to pre-empt any such decision. Any failure by the appellants to pay the respondent's costs to date is not relevant to issue for current determination. The respondent has not shown that he would suffer any prejudice if the extension of time is granted. Indeed that is why he only relied on the futility factor in the Court below. The fifth factor to be taken into account is that the respondent has argued that the grant of the extension of time is futile because, in essence, even if the remuneration claimed by the respondent is taxed it will not improve the financial circumstances of the appellants. The implication is that the sole purpose of reg 8.09(1) is to enable the bankrupt or a creditor to gain some tangible financial benefit. Giving primacy to this approach, to the exclusion of other factors, fails to recognise and respect the wider public interest inherent in reg 8.09(1).


case_title: Adsett v Berlouis (1992) 37 FCR 201

case_text: trustee in bankruptcy is under an obligation to exercise reasonable skill in the performance of his or her duties and "[a] trustee in bankruptcy who acts for remuneration is under a duty of care greater than that of a gratuitous trustee"; see Adsett v Berlouis (1992) 37 FCR 201 at 208 per Northrop, Wilcox and Cooper JJ. As a consequence, it has been held that under the Act: the trustee's right to remuneration is limited to work properly undertaken. In this context, "properly" means work reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Act, conformably with the trustee's duty to perform the work with reasonable care and skill and in an efficient and economical way. Adsett at 212 and see also Pantzer v Wenkart (2006) 153 FCR 466 at [43] per Black CJ, Ryan and Moore JJ.


case_title: Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466