case_text: In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P & O Cruises Australia Pty Ltd (formerly P & O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J). 18 In Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19], Goldberg J described the court's task in the following terms: "Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. Ordinarily in such circumstances the Court will take into account the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement. In Re General Motors Corporation Pick-Up Truck Fuel Tank Products Liability Litigation 55 F 3d 768 at 785 (1995) the United States Court of Appeals for the Third Circuit referred to the nine-factor test it had adopted: "... to help district courts structure their final decisions to approve settlements as fair, reasonable and adequate as required by Rule 23(e) [which requires court approval for settlement of class actions]. See Girsh v Jepson 521 F 2d 153 at 157 (1975) (3rd Cir). Those factors are: (1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation." (See also County of Suffolk v Long Island Lighting Co 907 F 2d 1295 at 1323 (1990) (2nd Cir), 5 Moore's Federal Practice 3rd ed, p 23-348.) This nine-factor test is equally helpful in the Australian jurisdiction and I find it a useful guide in considering the present proposed settlement." 20 In my view, the analysis undertaken by Goldberg J is not properly to be read as seeking to 'incorporate' into Pt IVA of the Federal Court Act the requirements of Rules of Court in an overseas jurisdiction. The analysis provided and continues to provide a useful guide in considering applications for approval under s 33V of the Act: see most recently Gillard J in Harrison v Kerrili Pty Ltd (trading as Diakou Faigen) (Unreported, Supreme Court of Victoria, 6 June 2007). It should, in appropriate cases and subject to the circumstances of any particular case, continue to be employed as a useful guide. 23 Having read the supporting affidavits and the exhibits to those affidavits including the opinions of counsel, the Diakou Settlement Deed and the submissions of counsel, I am satisfied that the group members have been duly appraised of relevant matters in making their decision to settle the proceeding and in the case of group members who are not applicants, not to object to the settlement. It is unnecessary to set out the advices provided by counsel or the advice provided by the solicitors as to the prospects of success in the claim. On the material, it is apparent that the legal representatives for the group members have carefully considered and weighed all the risks. To the extent relevant, the factors identified by Goldberg J in FAI have been addressed by the legal representatives for the group members. 24 Settlement of the applicants and group members' claim against one respondent usually requires consideration of the interests of the other respondents to the proceeding. However, there are no cross claims made on a joint liability basis against Diakou Faigen and any other respondent. The only cross claim involving Diakou Faigen is MKM Capital Pty Ltd's amended cross claim dated 4 August 2006. That is a stand alone claim and is not affected by the releases provided by the applicants and the group members. Moreover, orders were made by Middleton J on 20 April 2007 in contemplation of the continuation of that cross claim notwithstanding the intended settlement of the applicants' claim against Diakou Faigen. 25 In all the circumstances, I am satisfied that the proposed settlement represents a fair and reasonable result for the group members and is in the best interests of the claimants. Accordingly, the proposed settlement is approved by the Court.


case_outcome: cited

case_text: J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 ; (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.


case_text: Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625 at [32] Branson J observed that s 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. Her Honour pointed to the contrast between subss (1) and (3) in this respect.


case_outcome: distinguished

case_text: support of the contention that a subsequent notification cancels the effect of an earlier one, the respondent relied on H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153. There notification had first been sent to the appellant's agent and was later handed to the appellant in person. Notification to the agent gave the appellant more time in which to lodge his application for review. The Refugee Review Tribunal dismissed the application on the ground that it was out of time. The primary judge dismissed an appeal from that decision. The appellant's appeal was upheld by the Full Court. The Court agreed with the Tribunal's decision so far as it concerned personal notification, but said that the Tribunal had overlooked the notification to the agent. At [9] their Honours said: On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister's obligation under s 66. If that be correct, any further "notifications" (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice. In Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 ; (2007) 161 FCR 419 the appellant relied on the second basis in H , which the Full Court described at [23] as an "ambitious claim". At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular "whether there can be two operative and effective notifications made". They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables. In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang .


case_title: Jess v Scott (1986) 12 FCR 187

case_text: Minister's notice of appeal should have been filed and served by 27 March 2009. It was filed and served six days late. Order 52 rule 15(2) empowers the Court to extend time for "special reasons". In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court said that "special reasons": is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. In my view the Minister has sufficiently explained the short delay in filing the notice of appeal. In several cases an extension of time has been granted where there has been a short delay caused by reliance on incorrect advice as to time limits. Jess v Scott was such a case. Prospects of success Section 494B of the Act provides in part: (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient ); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. ... (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. Regulation 2.16(3) of the Regulations requires the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods in s 494B.


case_text: recent decisions are to the same effect: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485 ; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64 ; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.


case_text: respondent submits that the Act does not prevent the Minister notifying a decision on more than one occasion, either because there is doubt whether the duty imposed by s 66 had been discharged or because it is expedient to do so. It was said that Minister for Immigration and Multicultural Affairs v Bahwadj [2002] HCA 11 ; (2002) 209 CLR 597 shows that where a person exercising statutory power realises a purported exercise is not legally effective, the person can re-exercise the power. In that case an applicant's agent informed the Immigration Review Tribunal that the applicant was unable to attend a hearing and wanted a later hearing date. By error that information was not drawn to the attention of the member constituting the Tribunal, who made a decision adverse to the applicant. On discovering the error, the Tribunal held a further hearing and decided in the applicant's favour. The Minister's application to set aside the second decision on the ground that the Tribunal was functus officio once it had made the first decision was dismissed. Four members of the Court held that the Tribunal's first decision was made in jurisdictional error (denial of natural justice), did not constitute a review as required by the Act, and was of no legal effect. The present case is quite different. Here the Tribunal found, correctly, that it did not have jurisdiction to entertain the appeal. Once it had done that, it was functus officio. If it had purported to re-exercise its power, any "decision" would have been of no effect. The essence of Bahwadj is that the Tribunal's first decision was a nullity, and thus no obstacle to a fresh decision. The respondent relied on s 33(1) of the Acts Interpretation Act 1901 (Cth) for the contention that the requirement in s 66 of the Act that the Minister notify an applicant of the decision whether to grant or refuse a visa can be exercised from time to time. That subsection provides: Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires. As I understood it, this provision was deployed in support of the contention that a subsequent notification could displace an earlier one. Section 33(1) was mentioned in Bahwadj . There the Minister argued that the subsection does not confer any power to make a further decision, because the Act disclosed an intention to the contrary. The High Court held that once it was seen that the first decision was a nullity, the Tribunal was required to revisit the matter because its duty remained unperformed. At [53] Gaudron and Gummow JJ said this was so "regardless of s 33(1) ". At [156] Hayne J said that s 33(1) did not require consideration because the Tribunal had performed its duty only once, by the making of the second decision. Whatever the scope of s 33(1) , it cannot in my view operate in the way in which the respondent seeks to have it apply, namely to invalidate or cancel the legal effect of an earlier performance of a duty. The subsection says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. That it does not have that effect is supported by the contrast provided by subs (3): Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.


case_text: observations of Hely J in Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 181 ; (2005) 145 FCR 542 at 547 are to the same effect: In my view, s 33(1) ... (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.


case_outcome: applied

case_text: main factors relevant to the exercise of the discretion are the applicant's prospects of success on an appeal, and whether a sufficient explanation for the delay has been provided: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [20] and [27]. Explanation for delay I will deal first with the explanation that has been provided for the delay. On 6 March 2009, the date of the Magistrate's decision, the Minister's solicitors advised him that the last day to file and serve a notice of appeal was 3 April 2009. According to the solicitor handling the matter, that date was calculated by reference to s 477A of the Act. Reliance on that section was misplaced, because the section applies to applications to the Court in its original jurisdiction and not its appellate jurisdiction. The Minister acted on that advice, and within the advised appeal period, on 1 April instructed his solicitors to file a notice of appeal. That was done on 2 April. As I have said, later that day the Registry informed the Minister's solicitors that the notice was out of time. The solicitors informed the Minister of that fact, and the Minister said he would consider his position and provide instructions by 6 April. On that day the Minister decided to seek an extension of time. That application was filed on 7 April together with a supporting affidavit setting out the matters recorded in this paragraph.


case_text: part of this first discretionary consideration, the respondent contended that the Minister made an election by not seeking a stay of the Magistrate's orders and indeed complying with them, and that he cannot resile from the consequences of that conduct. In Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 at 655 Mason J said: A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights. ... Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made it cannot be retracted ... A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. Apart from saying that the Minister did not seek a stay of the Magistrate's order, the respondent did not identify the Minister's two alternative and inconsistent rights. Presumably the right other than the right to seek a stay is the right to appeal. In my view these rights are not inconsistent rights. Unsuccessful litigants frequently comply with orders which they intend to challenge without thereby losing their right of appeal. For example a litigant ordered to repay money to the Commonwealth is unlikely to be advised to seek a stay, because there would be no risk of the Commonwealth being unable to repay the money in the event of a successful appeal. The notion that the consequence of not applying for a stay and complying with an adverse order is the loss of the right to appeal is quite foreign to the way in which appellate litigation is conducted. That the right to apply for a stay and the right to appeal are not inconsistent is shown by the fact that they so often travel together. For example, an unsuccessful party who is ordered to pay money to an opponent he thinks will use it to pay heavy debts so as to make it unlikely he will be able to repay it if the appeal is successful, will both appeal and seek a stay. The second discretionary consideration relied on by the respondent is that the legal issues the Minister wishes to raise on an appeal are of academic interest. She relies on s 494C(7) of the Act which provides: If: (a) the Minister purports to give a document to a person in accordance with a method specified in section 494B ... but makes an error in doing so; and (b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.


case_outcome: considered

case_text: Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626 the Minister refused to grant a temporary entry permit. Later the applicant asked that the refusal be reviewed in the light of additional material. That request was refused. The applicant sought judicial review of both refusals. The ground of review of present relevance concerned the second refusal, which was attacked on the ground that the decision maker erroneously concluded that he did not have power to reconsider his decision. French J considered whether the power to grant or refuse to grant an entry permit carried with it a power to reconsider an earlier exercise of the power. His Honour concluded it did not. He said at 444: While it may be accepted that a power to reconsider a decision made in exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.


case_title: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485


case_title: SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184


case_text: Minister says that s 494C(4) would have operated to deem the first notification letter to have been received even if the respondent's notification of change of address had been received by the Department between 7 August 2007 (when the letter was sent) and 16 August 2007 (when it was deemed to have been received). In VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397 at [22] French J said: I do not accept the submission that the process of sending remains notionally in effect until deemed receipt and is halted by the intervening notice of a new address. Neither the language nor the evident purpose of the statutory and regulatory scheme supports such a construction. Of course in the present case, on the Minister's submission, s 494C(4) had fully operated on the first notification letter before the respondent notified her change of address. In my view the Minister has a strong case that once the Federal Magistrate had rejected the technical attacks on the validity of the first notification letter, he should have concluded that the respondent had been notified of the delegate's decision on the ground that the defect in the second notification letter cannot affect the validity of a notification that had already been "taken" or "deemed" to have occurred prior to the second notification letter being sent. Discretionary considerations The respondent advanced three matters she said should lead to the refusal of an extension of time. The first was that an appeal is of academic interest only, and will not determine any question now at issue between the parties. The respondent has a review proceeding on foot in the Tribunal in respect of the delegate's decision. That review will determine whether she is entitled to the visa. It was submitted that if an extension of time were granted and the appeal upheld, that would not affect the conduct of the review or the validity of the Tribunal's decision on the review. The position would be the same if the appeal were to be dismissed. The contention that the respondent's application for review will determine her right to a visa is in my view much weaker than the Minister's strong case described at [26]. On that case, the third notification letter was incapable of having any effect because the first notification letter was effective. Accordingly the Tribunal would have no jurisdiction to entertain the application. Section 347(1) requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period. The prescribed period in reg 4(10)(1)(a) is 21 days after the notification of the decision. Notification took place on 16 August 2007. The current application was not made within the prescribed period, and accordingly is not competent. The Tribunal has no jurisdiction to entertain it. The Department's letter of 24 March 2009 cannot confer on the Tribunal jurisdiction it does not have. The respondent's discretionary consideration depends on the Minister's contention, just described, being erroneous. All I need say at this stage is that in view of the strength of the Minister's case, I do not regard this discretionary consideration, which is at odds with that strong case, to be sufficiently persuasive to cause me to refuse an extension of time. French J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 ; (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.


case_text: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] - [14] the Full Court said: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be "taken to have received the document ...". Nothing in the section suggests that this is merely a rebuttable presumption... Spender J, in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 ; (2004) 135 FCR 550 at [69] observed: The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the document had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved". We agree. The sequence of statutory and regulatory provisions to which we have referred prescribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.


case_text: Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 ; (2007) 161 FCR 419 the appellant relied on the second basis in H , which the Full Court described at [23] as an "ambitious claim". At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular "whether there can be two operative and effective notifications made". They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables. In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang .


case_text: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-576 [57] - [58] Gaudron, McHugh, Gummow and Hayne JJ held that the old test for summary disposal had been expressed in various ways but that all had described a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. They said that a less demanding test should not be applied where a defendant sought to have service of proceedings overseas set aside. The fundamental reason why their Honours rejected the general law adoption of a more lenient test was because it was unclear as to what new criterion was to be applied. They said: 'Are proceedings to be terminated upon a prediction (on what would almost invariably be less evidence and argument than would be available to trial) of the "likely" or "probable" outcome of the proceeding? That cannot be so. It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities. And if it is not to be enough to persuade the court that it is more probable than not that the case against a defendant will fail, and some higher test (less than that now applied in applications for summary judgment) is to be applied, how is that test to be described? The attachment of intensifying epithets, such as "very" or "highly", offers little useful guidance for those judicial officers who would have to apply the test and who would have to do so, often enough, in a busy practice list. Such a test would be unworkable.' And, more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'


case_outcome: followed

case_text: Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited [1994] FCA 814 at 18 (unreported, Beaumont J, 7 November 1994) Beaumont J followed Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467 and 54,469; [1993] FCA 404 at 3-4 where Davies J said: 'In my opinion, a right to claim damages under ss. 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss. 82 and 87 cannot, in my opinion, be assigned. Section 82 provides:- "(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." The section does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern & City Railway Co. [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Pulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs park have discontinued their claims and that is an end to them. The assignment has effect, however, insofar as it assigns to Mrs Regan all the entitlement of Mr and Mrs Park under the mortgage into which all the applicants had entered as mortgagees. Thus, if any ancillary relief under s. 87 depends upon the approval or request of the mortgagors, the remaining applicants now hold all interests in respect thereof.'


case_text: more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'


case_text: number of cases have looked at how s 31A of the Federal Court Act might work. GE Capital argued that the Court should engage in a predictive assessment as to whether the proceedings had no reasonable prospect of success. It relied upon the analogy with the similar wording of s 345 of the Legal Profession Act 2004 (NSW) (and their analogues) although it accepted that there were differences in the way that that legislation worked. However, the concept of a claim so lacking in merit or substance as to be not fairly arguable was suggested as being helpful ( Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [132] per McColl JA). In addition, reliance was placed on Bernstrom v National Australia Bank [2003] 1 Qd R 469 at [41] that a party who seeks to resist a claim for summary judgment on rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld), which are similar to, but not identical to s 31A, should provide evidence of this basic material to support the arguability of its claim. I now turn to the claim for breach of contract. New Boston was correct in arguing that in an application under s 31A the Court should take the allegations in the disputed pleading at their highest ( Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 at [39]). In that context it is possible to see an argument that an express representation may have been made as to the volume of business which GE Capital would provide to old Boston under the GE Capital contract. It is also possible that new Boston may be able to establish, as it alleges, that an effective assignment occurred of the rights which old Boston had under the GE Capital contract. However, the claim sought to be assigned is of a right to sue for unliquidated damages for breach of contract which new Boston claims to have acquired only because of the effect of the transaction in which it acquired old Boston's business. Old Boston is not a party to the proceedings. It does not exist. New Boston has made no application to amend, to reinstate it or join it. For the reasons given above, I do not consider there are any reasonable prospects of success of an argument for new Boston that an effective assignment of contractual rights can be proved. The claim in contract alleges that GE Capital was in breach of the GE Capital contract because 'the entire agreement was for [GE Capital] to provide [old Boston] with instructions in respect of 25% of defaulting customers per State in Australia to effect the field agent's services based on representations made by [GE Capital]'.


case_text: the High Court has not specifically determined this issue, I am of opinion that it is not reasonably arguable, having regard to the decisions to which I have referred and the authorities on which they are based, that new Boston could succeed in the enforcement of any assignment under the sale agreement of causes of action under s 82 of the Act to recover loss or damage suffered by old Boston. Only a person who suffers loss or damage by the conduct done in contravention of a relevant provision of the Act can recover under s 82. As Gleeson CJ, Hayne and Heydon JJ said in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at 604 [37] , in a case where monetary relief is sought by a plaintiff who alleges that a particular misrepresentation was made to an identified person, of whom the plaintiff was one: 'The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone.' Of course, here, new Boston does not claim a misrepresentation was made to it, but rather to old Boston. However, I do not consider that in the circumstances of the pleading in the present case, any material difference can be established so as to entitle new Boston, which did not exist at the time that the alleged representations were made, to assert some freestanding cause of action under the Act quite divorced from anything to do with old Boston.


case_text: latter proposition was cited with approval by Ipp JA, giving the leading judgment, in Project 28 Pty Ltd v Tim Barr Pty Limited [2005] NSWCA 240 at [40] - [41] . Ipp JA noted that such an interest, as is described by Lord Roskill, had to be a 'legitimate interest' which was distinct from the benefit the person supporting the action sought to derive from the litigation and something beyond a mere personal interest in profiting from the outcome of the proceedings ([2005] NSWCA 240 at [41]; see also Zhu v Domson Pty Ltd [2006] NSWCA 232 at [18] - [19] per Spigelman CJ). Since judgment was reserved in this matter, the High Court has decided Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41. There, Gummow, Hayne and Crennan JJ referred to this issue, although, as Callinan and Heydon JJ pointed out it only 'received some mention before this Court' (see [2006] HCA 41 at [260] ). Gleeson CJ and Kirby J did not discuss this point. Gummow, Hayne and Crennan JJ observed that the House of Lords' conclusion in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 was that an agreement permitting a bank, which guaranteed the costs of a party to litigation in which the bank itself was also interested, to sell the party's claims in a litigation 'savours of champerty', 'since it involves trafficking in litigation a type of transaction which, under English law, is contrary to public policy' ([2006] HCA 41 [79]). Accordingly, the House of Lords held the assignment of the cause of action there was void. However, as Gummow, Hayne and Crennan JJ pointed out their Lordships' decision to stay the proceedings was founded upon an exclusive Swiss law jurisdiction clause, not upon any consideration of public policy concerning maintenance or champerty ([2006] HCA 41 at [81]). They noted that there was no case where maintenance or champerty had been held to be defence to, or reason enough to stay, an action that was maintained ([2006] HCA at [82]). Ultimately, Gummow, Hayne and Crennan JJ (with whom Gleeson CJ (at [1]) and Kirby J (at [146]) agreed on this issue) held that there was no abuse of process involved in someone seeking out those who may have claims, offering terms which gave the seeker control of the litigation and would also yield to the seeker, as it hoped and expected, a significant profit ([2006] HCA 41 at [88]). Callinan and Heydon JJ said ([2006] HCA 41 at [261]): 'If the transaction between [the seeker] and each retailer had taken the form of an assignment to [the seeker] so that it could sue as plaintiff, the claim would fail because the assignment would be ineffective. Whether in an endeavour to escape that consequence, or for some other reason, the transaction took a different form.' Callinan and Heydon JJ said that there was a serious question whether the Court of Appeal had been correct in concluding that, on the issue of the assignability of the cause of action, which had not been debated before it and of which only some mention had been made before the High Court, the retailer's action for money had and received was historically a claim in debt which was readily assignable without engaging the principles of about trafficking in litigation ([2006] HCA 41 at [260]). They referred, among other things, to what Williams, Webb and Kitto JJ had said in Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602.


case_title: Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62

case_text: J agreed saying that in his view the contrary was not reasonably arguable. Lindgren J followed both these decisions in National Mutual Property Services (Australia) v CitiBank Ltd (1995) 132 ALR 514 at 539, as did von Doussa J in Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at 116-117 [204] - [207] . And, in Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218F-G Branson J (with whom Spender and Olney JJ agreed) applied the reasoning of Davies and Lindgren JJ to hold that the estate of a deceased person could not satisfy the statutory requirement of s 82 of being a 'person' who suffered loss or damage. Her Honour also held that the estate could not satisfy the statutory requirements of s 87 of the Act of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage'.


case_text: particular, new Boston submitted that the new test to be applied should not equate to a finding that the claim must have reasonable prospects of success (see also Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] Brennan CJ and McHugh J). In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 the Queensland Court of Appeal considered rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) and Pt 24 of the Civil Procedure Rules (Eng) which had come into force in England and Wales in 1999. Williams JA (with whom McMurdo P at [1] and Atkinson J at [46]-[47] agreed) held that the approach adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 was appropriate. The Master of the Rolls said (at [11]): 'The words "no real prospect of being successful or succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.'


case_title: Ex Christmas Islanders Assocation Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671

case_text: Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671 at [20] French J pointed out that the power to award costs against a legal practitioner has been approached in different ways by State appellate courts and Full Courts of this Court as exemplified in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 (under provisions such as s 43 of the Federal Court Act and O 62 r 9 of the Federal Court Rules ). He reasoned that considerations of whether legal practitioners should be ordered to pay costs under the provisions governing this Court's jurisdiction depended upon whether there had been an error in the observation by a legal practitioner of a duty owed to the Court. French J followed the approach of the Privy Council in Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 706 [57] where their Lordships said: 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the court.' (see also at [2001] 2 AC at 703 [49], 706 [57]; and Cook v Pasminco Ltd [2001] FCA 1277 per Stone J and, the article by N Beaumont, 'What are "Reasonable Prospects of Success?"' (2004) 78 ALJR 812)


case_outcome: discussed

case_text: Capital pointed out that the purpose to which s 31A was directed was to provide a more lenient test than the traditional one reflected by the exception which s 31A(3) creates. The latter provision identifies the concepts of hopelessness or being bound to fail which were part of the old test explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 and provides that these are no longer the only basis for summary judgment. GE Capital relied on the second reading speech and explanatory memorandum for the introduction of s 31A to show that it was the intention of the Parliament to give the Court greater flexibility than Barwick CJ's well known test provided to strike out claims which were unlikely ever to succeed. And, more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'


case_title: Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678


case_text: CJ and McHugh applied that observation in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having 'no reasonable prospect of successfully prosecuting a proceeding' has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125 at 130-131, approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441-442): 'If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (emphasis added) (see also Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561-562 [128]-[131] per Gummow J and 580 [203], 582-583 [208]-[209] per Kirby J; see also at 531-532 [33]-[34] per McHugh J) I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened '... the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases'.


case_text: CJ and McHugh applied that observation in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having 'no reasonable prospect of successfully prosecuting a proceeding' has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125 at 130-131, approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441-442): 'If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (emphasis added) (see also Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561-562 [128]-[131] per Gummow J and 580 [203], 582-583 [208]-[209] per Kirby J; see also at 531-532 [33]-[34] per McHugh J)


case_text: particular, new Boston submitted that the new test to be applied should not equate to a finding that the claim must have reasonable prospects of success (see also Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] Brennan CJ and McHugh J). Brennan CJ and McHugh applied that observation in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having 'no reasonable prospect of successfully prosecuting a proceeding' has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125 at 130-131, approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441-442): 'If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (emphasis added) (see also Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561-562 [128]-[131] per Gummow J and 580 [203], 582-583 [208]-[209] per Kirby J; see also at 531-532 [33]-[34] per McHugh J)


case_text: number of cases have looked at how s 31A of the Federal Court Act might work. GE Capital argued that the Court should engage in a predictive assessment as to whether the proceedings had no reasonable prospect of success. It relied upon the analogy with the similar wording of s 345 of the Legal Profession Act 2004 (NSW) (and their analogues) although it accepted that there were differences in the way that that legislation worked. However, the concept of a claim so lacking in merit or substance as to be not fairly arguable was suggested as being helpful ( Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [132] per McColl JA). In addition, reliance was placed on Bernstrom v National Australia Bank [2003] 1 Qd R 469 at [41] that a party who seeks to resist a claim for summary judgment on rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld), which are similar to, but not identical to s 31A, should provide evidence of this basic material to support the arguability of its claim. The analogy suggested between the threshold of a standard of 'no reasonable prospect of successfully prosecuting a proceeding' and situations in which legal practitioners have been held by courts to be liable for costs orders in respect of claims cannot be decisive. In the latter class of liability an element of the test is whether the claim or defence 'has reasonable prospects of success' (see e.g. s 198J of the Legal Profession Act 1987 (NSW) and now; s 345 of the Legal Profession Act 2004 (NSW)). This analogy cannot be carried too far since the statutory provisions for such costs orders contain their own definitions and conditions in which the orders can be made. So much was made clear by McColl JA (with whom Hodgson JA and Ipp JA agreed) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [134] . She pointed out, following what Gibbs J had said in The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australian [1978] HCA 51 ; (1978) 140 CLR 470 at 473 that the mere fact that a case is dismissed is not sufficient to establish that the proceedings were instituted 'without reasonable cause' under the provisions of s 197A of the Conciliation Arbitration Act 1904 (Cth). The concept of 'reasonable cause' for instituting proceedings is not the same as the statutory concept in s 31A, since, as McHugh J pointed out in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 499 [27] , a person may institute proceedings on the basis of legal advice so as to have 'reasonable cause'.


case_title: Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155


case_text: to filing its motion, GE Capital's solicitors sought particulars and details of the arrangements pursuant to which new Boston claimed to be entitled to sue in respect of the representations made to and conduct experienced by old Boston and to exercise old Boston's rights under the GE Capital contract. They also pointed out that in National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514 Lindgren J had held that causes of action under the Act were not assignable. Eventually, new Boston provided GE Capital with a copy of the sale agreement. On 20 July 2006, GE Capital's solicitors sought particulars of the statement of claim. When the matter came on for hearing, I was informed that although the letter had been received on 25 July 2006, no particulars had been supplied. The solicitor for new Boston asserted, but GE Capital does not accept, that this was because he had been engaged in settlement discussions from July 2006 and in preference to answering formal legal letters he had sought to concentrate on those discussions which were ongoing. This assertion was made during the hearing and confirmed in Mr Gower's affidavit, which was filed on the following day. GE Capital objected to the affidavit being read as its contents were not accepted as accurate. Given that the way in which new Boston's claims were being put was in issue on the return of the motion I will read the affidavit but limit its use under s 136 of the Evidence Act 1995 (Cth) to evidence of an assertion of Mr Gower's state of mind and not as evidence of the truth of the assertion. GE Capital has not had an opportunity to test Mr Gower's assertion. In any event, I regard the assertion as providing no adequate explanation of the failure to provide particulars in a serious piece of contested commercial litigation. The provision of particulars of the way in which new Boston claimed its case was being put would obviously have assisted, if it were possible, new Boston's case in resisting the motion. New Boston sought to resist the application but propounded a fallback position that should be granted leave to amend its claims for relief in s 51AC to include an allegation of unconscionable conduct in respect of itself and, to plead continuing representations by GE Capital. I was informed that there were emails between GE Capital and both new Boston and old Boston addressing the issue of the agreed amount of referrals and the number actually provided. New Boston also made an oral application to plead a claim in quantum meruit on the basis that if there were no contract between GE Capital and new Boston for the services provided after 1 July 2005, then new Boston should be allowed to make such a claim. New Boston argued that the less generous negotiated rate between GE Capital and old Boston for the provision of field calls (calculated on the basis of the volume of 282 per month) could be revisited based on the higher fixed costs and lower number of referrals which new Boston had in carrying out those field calls. Beaumont J agreed saying that in his view the contrary was not reasonably arguable. Lindgren J followed both these decisions in National Mutual Property Services (Australia) v CitiBank Ltd (1995) 132 ALR 514 at 539, as did von Doussa J in Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at 116-117 [204] - [207] . And, in Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218F-G Branson J (with whom Spender and Olney JJ agreed) applied the reasoning of Davies and Lindgren JJ to hold that the estate of a deceased person could not satisfy the statutory requirement of s 82 of being a 'person' who suffered loss or damage. Her Honour also held that the estate could not satisfy the statutory requirements of s 87 of the Act of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage'.


case_title: Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105


case_text: Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited [1994] FCA 814 at 18 (unreported, Beaumont J, 7 November 1994) Beaumont J followed Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467 and 54,469; [1993] FCA 404 at 3-4 where Davies J said: 'In my opinion, a right to claim damages under ss. 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss. 82 and 87 cannot, in my opinion, be assigned. Section 82 provides:- "(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." The section does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern & City Railway Co. [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Pulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs park have discontinued their claims and that is an end to them. The assignment has effect, however, insofar as it assigns to Mrs Regan all the entitlement of Mr and Mrs Park under the mortgage into which all the applicants had entered as mortgagees. Thus, if any ancillary relief under s. 87 depends upon the approval or request of the mortgagors, the remaining applicants now hold all interests in respect thereof.' The construction arrived at by the authorities, on s 82, to which I have referred, is reinforced by a consideration of the subsequently introduced amendment to s 82 in s 82(1B). That subsection specifically provides that the damages 'that the claimant may recover' are capable of being reduced by reason of the claimant's share of responsibility. It is difficult to see how the Court could award a third party that which the statute only authorises the claimant to recover. Moreover, s 82(1B) shows that it is only the person entitled to recover damages who can have the damages recoverable reduced by reason of that person's share of responsibility for the loss of damage. A stranger would be in the position identified by Hamilton LJ in Defries v Milne [1913] 1 Ch 98 at 112 (see too Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602) where he said of an attempt to assign to a plaintiff a cause of action for the tort of waste: 'The plaintiff is under no measurable liability to [the defendants] , and one essential ingredient in the plaintiff's cause of action in tort fails, and fails altogether. It seems to me, therefore, that the plaintiff has no direct right of action here because he has not been damnified.' The pleading itself asserts that the relevant representations were made to old Boston and that old Boston relied on the representations in formulating its costings thereby incurring loss or damage. The statement of claim also alleges that between November 2004 and November 2005, GE Capital provided old Boston with less than half of the agreed amount of defaulting customers on whom to effect the field agent services. During the course of argument the reference to November 2005 was amended to June 2005. Obviously, after 1 July 2005 old Boston did not purport to provide any services. For the reasons I have given above, in whatever way this claim is formulated, s 82 permits only old Boston to recover that loss or damage. Because s 82(1) also gives a right to recover loss or damage to a person who suffers it by conduct of another person that was in contravention of s 51AC , for the reasons given above, that cause of action is not capable of assignment to new Boston. It has no reasonable prospect of being successfully prosecuted by new Boston against GE Capital. New Boston argued that I should not follow the decision of the High Court in Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602-603 which denied that a right of action in tort was assignable at all. It was suggested that this was the old view of the law. New Boston argued that I should follow what what Debelle J said of it in South Australian Management Corporation v Sheahan (1995) 16 ACSR 45 at 58, namely that the decision could be explained as relating to an assignment of a claim in tort where the assignee had no genuine commercial interest. However, in Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1998) 194 CLR 395 at 403 [17] Gaudron, McHugh, Gummow and Hayne JJ made it clear that the doctrine of precedent in Australia binds me to follow the decisions of the High Court unless and until that court decides that the time is right for a change in the law. I propose to do that. There is no basis to read down the considered judgment of Williams, Webb and Kitto JJ in Poulton v The Commonwealth (1953) 89 CLR at 602 that a right of action in tort is incapable of assignment at law or in equity. I am of opinion that Debelle J was wrong not to have applied this binding authority. Callinan and Heydon JJ said that there was a serious question whether the Court of Appeal had been correct in concluding that, on the issue of the assignability of the cause of action, which had not been debated before it and of which only some mention had been made before the High Court, the retailer's action for money had and received was historically a claim in debt which was readily assignable without engaging the principles of about trafficking in litigation ([2006] HCA 41 at [260]). They referred, among other things, to what Williams, Webb and Kitto JJ had said in Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602.


case_outcome: approved

case_title: Pritchard v Racecage Pty Ltd (1997) 72 FCR 203


case_text: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (189 CLR at 154) that '...the ultimate aim of a court is the attainment of justice'. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an applicant '... notwithstanding the possibility that the applicant's case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof' (his Honour's emphasis). I have considered whether I should allow new Boston an opportunity to replead. At the hearing, new Boston orally sought leave to amend its claim under s 51AC of the Act to allege that the conduct relied on in the statement of claim was also addressed to new Boston. It sought leave to plead that GE Capital made continuing representations to not only old Boston but also to new Boston and to plead a claim in quantum meruit. There is no evidence to support the claim of new Boston under s 51AC or the allegation of continuing representations. I do not consider that claims which are entirely unsupported by evidence, and are inherently unlikely, should be allowed to be made by an amendment of the kind proposed. As explained above, if new Boston wishes to make a claim in quantum meruit, it will need to do so in fresh proceedings on a basis that is properly articulated. There is nothing on the material before me to show that any such claim is fairly arguable: Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 154-155. I consider that the pleading and the material before me is so fundamentally flawed that I should not grant leave to amend. Because this is not a decision on the merits, it will be open to those advising new Boston to take further proceedings, if some can be formulated, which can articulate a cause of action which has reasonable prospects of success. I am of opinion that these proceedings should be dismissed. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 16 October 2006 Counsel for the Applicant: Ms K Edwards Solicitor for the Applicant: Insight Litigation & Legal Services Counsel for the Respondent: Mr JK Kirk Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 22 August 2006 Date of Judgment: 16 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1352.html


case_text: analogy suggested between the threshold of a standard of 'no reasonable prospect of successfully prosecuting a proceeding' and situations in which legal practitioners have been held by courts to be liable for costs orders in respect of claims cannot be decisive. In the latter class of liability an element of the test is whether the claim or defence 'has reasonable prospects of success' (see e.g. s 198J of the Legal Profession Act 1987 (NSW) and now; s 345 of the Legal Profession Act 2004 (NSW)). This analogy cannot be carried too far since the statutory provisions for such costs orders contain their own definitions and conditions in which the orders can be made. So much was made clear by McColl JA (with whom Hodgson JA and Ipp JA agreed) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [134] . She pointed out, following what Gibbs J had said in The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australian [1978] HCA 51 ; (1978) 140 CLR 470 at 473 that the mere fact that a case is dismissed is not sufficient to establish that the proceedings were instituted 'without reasonable cause' under the provisions of s 197A of the Conciliation Arbitration Act 1904 (Cth). The concept of 'reasonable cause' for instituting proceedings is not the same as the statutory concept in s 31A, since, as McHugh J pointed out in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 499 [27] , a person may institute proceedings on the basis of legal advice so as to have 'reasonable cause'.


case_text: it seems to me that it is fanciful to suggest that there is any claim which new Boston can bring based on representations GE Capital allegedly made to old Boston. Old Boston never sought to pursue whatever rights it might have had to bring those claims and has now ceased to exist. It is not pleaded that any contract or pre-contractual representation alleged to give rise to a contractual term was ever made to new Boston, on the contrary, it is pleaded that all relevant dealings going to the formation of the GE Capital contract were between GE Capital and old Boston. In Rossetto v Meriton Apartments Pty Limited [2006] FCA 1290 at [15] - [16] , Bennett J held that a company incorporated after representations were made to its director who at the time of the incorporation had been informed that the representations were untrue and had been offered rescission of the contract, had no arguable cause of action for the purposes of O 11 r 16. There is, of course, a distinction here. While new Boston must have been aware at the time of the sale agreement that the representation was untrue (if it became a contractual term) because it had been breached by GE Capital in relation to the number of field service calls, no offer had been made for rescission.


case_title: Swain v Hillman [2001] 1 All ER 91

case_text: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 the Queensland Court of Appeal considered rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) and Pt 24 of the Civil Procedure Rules (Eng) which had come into force in England and Wales in 1999. Williams JA (with whom McMurdo P at [1] and Atkinson J at [46]-[47] agreed) held that the approach adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 was appropriate. The Master of the Rolls said (at [11]): 'The words "no real prospect of being successful or succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.' Lord Hope discussed the scope of the enquiry occasioned by the English Rule saying ([2003] 2 AC at 260-261 [95]). He said, of a provision which was like s 31A, that it operates as an exception to the normal method by which issues of fact are tried in our courts: namely that once processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. However, if it were clear as a matter of law at the outset that even if a party was to succeed in proving all the facts that he, she or it offered to prove, the party would not be entitled to the remedy that was sought, then in such a case a trial of the facts would be a waste of time and money and it would be proper that action should be taken out of the court as soon as possible. Lord Hope instanced that in other cases it could be possible to say with confidence before trial that the factual basis for the claim was fanciful because it was entirely without substance. He said: 'It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgement. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.' Lord Hobhouse noted that the English rule required the judge to undertake an exercise of judgment. He emphasised that the power was a discretionary one, being one where the choice the judge has is whether to exercise the power or not based on, ultimately, the judge's ultimate assessment of its appropriateness having regard to the prospects of success of the relevant party ([2003] 2 AC at 282 [158]). He said that under the rule: '... the judge is making an assessment not conducting a trial or fact-finding exercise. Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the "bottom line" is what ultimately matters. ... The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality.' He went on to note that the judge's assessment had to start with the relevant party's pleaded case but that the inquiry did not end there. He said that the allegations could be legally adequate but may have no realistic chance of being proved. On the other hand, Lord Hobhouse noted, the limitations in the allegations pleaded, alongside any lack of particularisation, may show that the party's case was hopeless ([2003] 2 AC at 284 [161]). Although Lord Hobhouse and Lord Millett were in dissent, I do not think that their identification of the principles was different to those expressed by the majority (Lord Steyn, [2003] 2 AC at 237 [1], agreed with Lord Hope and Lord Hutton, and see [2003] 2 AC at 265 [111] per Lord Hutton).


case_text: Woolf's approach was subsequently endorsed by the House of Lords in Three Rivers DC v Bank of England (No 3) [2001] UKHL 16 ; [2003] 2 AC 1 at 259 [90] , 261 [95] per Lord Hope of Craighead; 272-273 [133]-[134] per Lord Hutton, 282-285 [159]-[162], per Lord Hobhouse of Woodborough; see also at 294 [192] per Lord Millett.


case_text: the claims under ss 51AC and 52 of the Act must be approached on the basis that there is a written agreement between the parties containing terms which are expressly in the teeth of alleged representations or of alleged oral contractual terms. Absent some misrepresentation, the written agreement executed by the person complaining must be taken as authoritative: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [39] , 180-183 [45]-[50]. The process of negotiation was pleaded and was also referred to by Mr Harrison in his affidavit. The time in which substantial cost and effort were said to have been expended causing old Boston damage in preparing its proposal, involved about 9 days in February 2004. Following that, whatever may have happened in the meantime about which no complaint is made, only in November 2004 was the GE Capital contract signed. The GE Capital contract appears to have been the result of a long process of negotiation. There is no suggestion that its terms were misrepresented. However, the written form of the GE Capital contract expressly negated any promise of a particular level of referrals to old Boston by GE Capital (Services Sch par 3). Old Boston had every opportunity to review the proffered terms which, according to Mr Harrison, GE Capital had sent in early September 2004 before it signed them in November 2004. There is no basis that appears in the pleading or in Mr Harrison's affidavit to support a claim that the express terms of the GE Capital contract were misrepresented to old Boston before it signed. Further, the statement of claim pleads the claim under s 51AC in a way which is not easy to comprehend. It does not disclose any intelligible basis on which it could be found that GE Capital acted in contravention of s 51AC by proffering the GE Capital contract to old Boston for consideration before signing. The allegations have no substance. The manner in which GE Capital was performing during the period in which old Boston purported to carry out the GE Capital contract indicated that the GE Capital was not acting on the basis of any such promise. Both old and new Boston knew this by July 2005. These factors induce me to consider that the claims have no reasonable prospect of succeeding although I cannot say that it is hopeless or bound to fail. I think that this view is reinforced by the difficulty with which the pleader has sought to articulate the claims. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 180-183 [45] - [50] the High Court held that where parties had signed a written contract, they were to be taken as intending the act of signature to be conclusive, absent misrepresentation or fraud. While misrepresentations had been pleaded as to the statements made many months earlier in February 2004, when the parties actually signed the written agreement on 9 November 2004, there is no material before me which suggests that old Boston could have been acting under the influence of any misrepresentation as to the terms of the GE Capital contract. Its terms were in writing, they had been provided to old Boston in advance. They were not in the form of a contract of adhesion. Old Boston was free to sign or not the GE Capital contract as it pleased. Old Boston had the opportunity to review and consider the draft or proffered terms. In those circumstances, I consider that there is no reasonable prospect that old Boston would be able to establish, as alleged in the statement of claim, that there was a term of the GE Capital contract that some minimum number of field calls would be referred to old Boston per month. Such a proposition is not only expressly excluded by express words in the services schedule of the GE Capital contract, it is also inconsistent with the entire agreement clause. In considering the claim in contract, it is important to appreciate that there is no claim that the GE Capital contract was vitiated by misrepresentation. Rather, it is claimed that an additional term was made either orally or by conduct which was part of that contract, although inconsistent with the express terms to which I have just referred. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [39] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ referred to the position of a person acting on behalf of a company who signed a contractual document without reading it. They noted that the person could have read the contract had he wished and that the other party did not set out to conceal from him the terms and conditions on the document or to encourage him not to read them. As their Honours said, the other party '... had no way of knowing that he did not read the document. No case of mistake or non est factum is advanced'. They continued (219 CLR at 179 [40]: 'This Court, in Pacific Carriers Ltd v BNP Paribas ((2004) [2004] HCA 35 ; 218 CLR 451), has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction ( Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 461-462 [22] ).' In trade and commerce, it is important that the courts encourage certainty in contractual relations. Here the parties entered into a contract at arms length in which there was a full opportunity to negotiate and where, as also in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [39] - [40] , 182 [47], the parties had a full opportunity beforehand to consider the written terms which they signed. Neither party insisted on including what is now said to be a critical and agreed term which is inconsistent with what they signed. I do not think that there is any reasonable prospect that old Boston would have been able to establish that the alleged term as to the minimum number of field calls per month was in fact a term of the GE Capital contract. As Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said (219 CLR at 180-181 [45]): 'It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.' Moreover, cl 20(a)(v) of the GE Capital contract provided that GE Capital was able without liability to terminate that agreement immediately by written notice if old Boston entered into liquidation or any other type of insolvency or if it ceased to conduct business to properly give effect to the GE Capital contract. By cl 20(b) GE Capital was also able to end the GE Capital agreement or a particular services schedule at its discretion at any time by giving 14 days written notice. Next, cl 20(d), provided that if GE Capital did terminate the GE Capital contract, other than pursuant to cl 20(b) no further amounts would be payable to old Boston even if they had already been invoiced. Again, the existence of those clauses tends to suggest that any term involving the non-termination of the GE Capital agreement for the proposed two year term could not be implied into the agreement and no such representation would have any reasonable prospect of being established. Accordingly, while it may be arguable that old Boston incurred expenses in performing the task of preparing a response to GE Capital's invitation to provide field services in February 2004, and to that extent incurred some damage, I am of opinion that by the time the GE Capital contract was entered into in November 2004 the effect of those representations was well and truly spent. There is nothing in the material before me to indicate there is any reasonable prospect of new Boston establishing that it is entitled to enforce a contractual term to the effect alleged or that it can rely upon any representations or contraventions of s 52 of the Act. New Boston sought to argue that the GE Capital contract was constructed on the basis of a price per call which old Boston had provided in February 2004 after doing the analysis based on the minimum number of calls per month. While that may have been the subjective intention of old Boston, the written agreement which it and GE Capital signed in November 2004 does not reflect anything other than a price which both parties were prepared to agree would be payable upon GE Capital referring any calls to old Boston: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] . GE Capital also argued that on its proper construction the sale agreement did not purport to assign the right of old Boston to claims it may have had as at the date of the sale agreement for breach of contract or under the Act, even if the latter were assignable.


case_text: Boston argued that the decision of the House of Lords in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 694, 702-703D, F-G supported its title to sue. New Boston said that it had a sufficient interest independent of the assignment in the sale agreement to justify it being able to assert old Boston's rights. But it is clear from the way in which the matter has been pleaded and from the evidence, that there was no pre-existing relationship (ie before the sale agreement) between old Boston and new Boston. The sale agreement was intended to, in effect, have new Boston step into old Boston's business and carry it on for reasons which are not currently before me. This is not a case such as where a mortgagee having lent money to a mortgagor finds itself in the position where both were induced to enter into the original financing and undertaking of the purchase by misleading or fraudulent conduct of the third party so as to support some interest independent of contract. The effect of the decision of the House of Lords in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 was debated in argument. In particular, new Boston relied on passages in the speeches of Lord Wilberforce ([1982] AC at 694) and Lord Roskill ([1982] AC at 702-703 esp at 703D and F-G). There, Lord Wilberforce said that provided that the assignor had a genuine and substantial interest in the success of the litigation, by giving a guarantee of the costs previously incurred, it would have been able, without offending the common law against maintenance or champerty, to have taken a security interest in the litigation or its proceeds ([1982] AC at 694D-E). Lord Roskill spoke to similar effect when he said ([1982] AC at 703F-G): 'If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or a savouring of maintenance.' The latter proposition was cited with approval by Ipp JA, giving the leading judgment, in Project 28 Pty Ltd v Tim Barr Pty Limited [2005] NSWCA 240 at [40] - [41] . Ipp JA noted that such an interest, as is described by Lord Roskill, had to be a 'legitimate interest' which was distinct from the benefit the person supporting the action sought to derive from the litigation and something beyond a mere personal interest in profiting from the outcome of the proceedings ([2005] NSWCA 240 at [41]; see also Zhu v Domson Pty Ltd [2006] NSWCA 232 at [18] - [19] per Spigelman CJ). Since judgment was reserved in this matter, the High Court has decided Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41. There, Gummow, Hayne and Crennan JJ referred to this issue, although, as Callinan and Heydon JJ pointed out it only 'received some mention before this Court' (see [2006] HCA 41 at [260] ). Gleeson CJ and Kirby J did not discuss this point. Gummow, Hayne and Crennan JJ observed that the House of Lords' conclusion in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 was that an agreement permitting a bank, which guaranteed the costs of a party to litigation in which the bank itself was also interested, to sell the party's claims in a litigation 'savours of champerty', 'since it involves trafficking in litigation a type of transaction which, under English law, is contrary to public policy' ([2006] HCA 41 [79]).


case_text: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (189 CLR at 154) that '...the ultimate aim of a court is the attainment of justice'. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an applicant '... notwithstanding the possibility that the applicant's case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof' (his Honour's emphasis).


case_text: Capital argues that a claim under the Act cannot be assigned as a matter of law. The statutory cause of action under s 82(1) of the Act arises '... when the plaintiff suffers loss or damage "by" contravening conduct of another person' ( Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 per Mason CJ, Dawson, Gaudron and McHugh JJ). And, the plaintiff can only recover compensation for actual loss or damage incurred, as distinct from potential or likely damage (175 CLR at 526). What s 82(1) authorizes is the recovery of the amount of loss or damage at the suit of the person who suffers it. The terms of the section appear to confer a right which is personal to the person who suffers loss or damage by the conduct of another done in contravention of a relevant provision of the Act. Now s 82(1B) provides that those damages may be reduced to the extent to which the Court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage A number of decisions of this Court identify the cause of action for the recovery of damages under s 82 as not being one which is capable of assignment.


case_text: Boston argued that GE Capital had to take the allegations in the statement of claim at their highest in an argument of the present kind. It pointed to the decision of the Full Court in Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 at [77] which held that where there were inconsistent terms within the same contract, some being standard form terms while others were specially framed with the individual circumstances in mind, it will normally be appropriate to give greater effect to the specially negotiated terms. Here, new Boston had alleged that the promise for 25% or 282 field calls was contractual, and that its claim was clearly articulated. I am not sure that I could accept the clarity of the articulation in all respects, but the essential formulation was certainly able to be discerned in most instances. New Boston argued that s 31A could not require both parties to put on evidence in detail or to conduct a mini trial. It submitted that it was not necessary for the case to be hopeless or bound to fail for it to have no reasonable prospect of success, but that the wording of s 31A did no more to change the previous law on the availability of summary remedies.


case_text: Warwick Entertainment Centre Pty Limited v Alpine Holdings Pty Limited (2005) 224 ALR 134, the Court of Appeal of the Supreme Court of Western Australia held that it may not have been unreasonable for a party, who had been induced to enter into a contract by misrepresentations in breach of statutory norms such as s 52 of the Act, to affirm the contract (see e.g. 224 ALR at 152 [76] per Steytler P). However, here, new Boston did not have any representations made to it. By voluntarily entering into some new arrangements with old Boston, it could hardly be said to have any damage to it caused by the breach of GE Capital's obligations owed to old Boston. In my opinion any such contention is unarguably bad.


case_text: sale agreement did not dispose of or deal with any rights of old Boston to sue GE Capital for conduct in contravention of the Act. Whether or not rights to bring proceedings for damages under s 82 of the Act are assignable, in my opinion there is no reasonable prospect of success in new Boston's argument that the sale agreement effected a disposition of whatever rights old Boston had against GE Capital under the Act. Moreover, I do not think that, had the liquidator of old Boston sought to do so, new Boston could have prevented the liquidator enforcing old Boston's claims under the Act against GE Capital. Because of that, it seems to me that there is no reasonable prospect that it could be successfully argued by new Boston that an effective disposition of those rights had occurred. There was no communication from old Boston to GE Capital that assigned or made over whatever rights old Boston had in any respect, whether under the Act or in contract, to new Boston ( William Brandt's Sons Co v Dunlop Rubber Co [1905] AC 454 at 462). And, even though old Boston appears to have become deregistered, if the liquidator or creditors became aware that it had valuable rights against GE Capital, such as new Boston claims the rights it obtained under the sale agreement were, it is quite possible that steps might be taken to reregister old Boston to enable it to begin proceedings. I say all this because it seems to me to demonstrate the lack of efficacy of the basis upon which new Boston claims to assert old Boston's rights. I do not think that on the evidence before me there are reasonable prospects that such an argument could succeed. It may be countered that were old Boston reregistered, new Boston might be able to compel it to assign its rights in consequence of the provisions of the sale agreement. But no provision of the sale agreement offers reasonable prospects of success for new Boston to argue that it could compel the making over of old Boston's rights to sue under the Act. That agreement was silent on both that topic and the rights of old Boston to sue under that Act which were not part of the business the subject of the transfer. The damage which old Boston suffered, if any damage were suffered by the alleged contraventions, was a cause of action which appears, on any reasonably arguable construction of the sale agreement, to have been retained by old Boston. The sale agreement could not effect any assignment of the statutory causes of action to new Boston. It follows that GE Capital is entitled to have the claims against it under the Act dismissed on the basis that they have no reasonable prospect of being successfully prosecuted against it. No particular formality is required for an assignment for value to be valid and effective in equity. As Lord Macnaghten said in William Brandt's Sons Co v Dunlop Rubber Co [1905] AC 454 at 462: 'The language is immaterial if the meaning is plain. All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person.' As he continued, the real question is whether what is asserted to be an assignment is notice to the debtor that the assignee is 'interested in the money' ([1905] AC at 462). The letter sent by new, not old, Boston on 1 July 2005 in terms related future invoices to new Boston's ABN. It was silent about the payment of the debts due on any old invoices. But in any event, old Boston did not write the letter and so it gave no instruction to GE Capital. Whatever debt GE Capital may have owed old Boston on 1 July 2005 was never made over to new Boston. GE Capital could not have received a good discharge of any existing obligation to old Boston by paying new Boston, because old Boston never authorized GE Capital to do so.