case_text: In their written submissions, the respondents submitted that even if it were open to the applicant to establish that the cancellation decision was invalid because s 501 had no application to Mr Coleman following Re Patterson: Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, the action for false imprisonment must fail. The submissions took the following course: (1) In order to establish wrongful detention, the applicant must establish that the detention of Mr Coleman was beyond the power of the respondents (or their officers) and thus unlawful. (The applicant submitted to the contrary that it is for the respondents to demonstrate that the detention was lawful and, although nothing turns on this in the case at hand, I think this must be correct.) (2) Section 189 of the Act imposes an obligation, a duty, on an officer of the Department, who "knows or reasonably suspects that a person in the migration zone .... is an unlawful non-citizen" to detain that person. The distinction between "knows" and "reasonably suspects" reveals that the duty to detain applies at least to the following circumstances: (a) where the officer believes the person to be an unlawful non-citizen and is ultimately correct in that belief "knows"; and (b) where the officer believes the person to be an unlawful non-citizen, ultimately is not correct about that but had reasonably grounds for the belief "reasonably suspects". (3) In Ruddock v Taylor (2005) 222 CLR 612, the judgment of the majority shows the interplay between the objective and subjective elements at [26] [27]: "[26] It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or failure in lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189. [27] But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, 'an officer shall detain an unlawful non-citizen'. The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens." (Emphasis in original.) (4) This passage reveals that s 189 of the Act authorises and requires the detention of persons who are, at law, "unlawful non-citizens". However. it is not confined to such persons and extends to persons who the officer reasonably suspects to be such. (5) In the present case, the law is now clear beyond argument that the applicant was in truth and at law an "alien" at all material times ( Shaw ) and, not having a valid visa, was therefore an unlawful non-citizen (s 14 of the Act). (6) The short answer to the applicant's case is that the officer was correct in forming the view that the deceased was an unlawful non-citizen the officer relevantly "knew" him to be such. In these circumstances, the detention was authorised under s 189 of the Act and the applicant's present application must fail. (7) Furthermore, even if there had been some breach in bringing the deceased into detention or maintaining him in detention, if he was liable to be kept in lawful custody (as he clearly was as is clear from the judgment in Shaw ), the deceased was not ever entitled to be discharged from detention but only remanded to some lawful custody: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452, Starke J at 464.5. That is, if Mr Robicheau personally did not "know" or "reasonably suspect" Mr Coleman was an unlawful non-citizen, Mr Coleman is not entitled to pursue an action for wrongful imprisonment but could seek only to be remanded to lawful custody. (8) The decision in Re Patterson is a decision in which the reasons of the majority do not have a single strain of reasoning and which has been described as having "had no precedent value beyond its own facts": Shaw at [34] [35], [49]. (9) Indeed, in Ruddock v Taylor , the majority indicated (at [17]) that, in Shaw , a "majority of the Court also held at [39] that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister . " That is, it should not be regarded as authoritative in deciding what the law was pertaining to identification of who are aliens: Shaw at [34] [37]. (10) This is particularly telling given that there is a material factual distinction between the present case and that considered in Patterson . In that case, one member of the majority (McHugh J) posited that a British subject living in Australia at the time of the enactment of the Royal Style and Titles Act 1973 (Cth) in 1973 was not an alien. In the present case, the deceased was not living in Australia in 1973 but had returned to Scotland at that time for about four years after only a two year presence in Australia. Hence, it would seem even on the stated reasoning in Patterson that a majority of the Justices would have been of the view that the deceased in this case was an alien. That this conclusion was the correct result has been confirmed by the decision in Shaw . (11) The Minister contends that there is no basis for contending that the officer who took the deceased into detention failed to hold a reasonable suspicion that the applicant was an unlawful non-citizen even as the law stood in February 2003 (which is not the correct test for the reasons outlined above). (12) The High Court decided, in Ruddock v Taylor , that it was sufficient to found a reasonable suspicion in that case (at [49]): (a) that the detaining officers had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa; and (b) each officer had checked whether the respondent had any other visa. (13) It did not make the detention unlawful in Ruddock v Taylor that the High Court had, in an earlier decision, quashed the cancellation. What was determinative was the power to detain in s 189 of the Act. That power is not based on the validity or otherwise of the cancellation decision that founds the reasonable suspicion. (14) In the case before this Court, Mr Coleman was detained on 25 February 2003 after the first respondent had cancelled his visa pursuant to s 501 of the Act. The evidence establishes that the officer who detained Mr Coleman (Mr Robicheau) held the view that the deceased was an unlawful non-citizen. The Minister's first contention is that this view was plainly correct and, as such, Mr Robicheau relevantly knew him to be such. In any event, the evidence establishes Mr Robicheau's reasonable suspicion under s 189: (a) first, Mr Robicheau was provided with the cancellation decision; (b) second, Mr Robicheau reviewed Mr Coleman's file documents; and (c) third, Mr Robicheau formed the view that in light of the cancellation decision and the fact that he did not hold any other visas, that he was an unlawful non-citizen. (15) Once Mr Coleman's detention was lawful on 25 February 2003 nothing remains of the applicant's case for a declaration and damages for false imprisonment. There is no change pleaded between 25 February 2003 and 9 December 2003 that would make the lawful detention unlawful. (16) The respondents submit that the cancellation decision of the first respondent, acted upon by Mr Robicheau, resulted in the lawful detention of Mr Coleman. There is no cause of action disclosed by the FASC. In those circumstances the applicant has no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) Federal Court of Australia Act . (It is not necessary for the respondent to establish that the proceeding are hopeless or bound to fail: s 31A(3).) The FASC should be dismissed.


case_outcome: applied

case_title: Ruddock v Taylor (2005) 222 CLR 612

case_text: In their written submissions, the respondents submitted that even if it were open to the applicant to establish that the cancellation decision was invalid because s 501 had no application to Mr Coleman following Re Patterson: Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, the action for false imprisonment must fail. The submissions took the following course: (1) In order to establish wrongful detention, the applicant must establish that the detention of Mr Coleman was beyond the power of the respondents (or their officers) and thus unlawful. (The applicant submitted to the contrary that it is for the respondents to demonstrate that the detention was lawful and, although nothing turns on this in the case at hand, I think this must be correct.) (2) Section 189 of the Act imposes an obligation, a duty, on an officer of the Department, who "knows or reasonably suspects that a person in the migration zone .... is an unlawful non-citizen" to detain that person. The distinction between "knows" and "reasonably suspects" reveals that the duty to detain applies at least to the following circumstances: (a) where the officer believes the person to be an unlawful non-citizen and is ultimately correct in that belief "knows"; and (b) where the officer believes the person to be an unlawful non-citizen, ultimately is not correct about that but had reasonably grounds for the belief "reasonably suspects". (3) In Ruddock v Taylor (2005) 222 CLR 612, the judgment of the majority shows the interplay between the objective and subjective elements at [26] [27]: "[26] It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or failure in lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189. [27] But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, 'an officer shall detain an unlawful non-citizen'. The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens." (Emphasis in original.) (4) This passage reveals that s 189 of the Act authorises and requires the detention of persons who are, at law, "unlawful non-citizens". However. it is not confined to such persons and extends to persons who the officer reasonably suspects to be such. (5) In the present case, the law is now clear beyond argument that the applicant was in truth and at law an "alien" at all material times ( Shaw ) and, not having a valid visa, was therefore an unlawful non-citizen (s 14 of the Act). (6) The short answer to the applicant's case is that the officer was correct in forming the view that the deceased was an unlawful non-citizen the officer relevantly "knew" him to be such. In these circumstances, the detention was authorised under s 189 of the Act and the applicant's present application must fail. (7) Furthermore, even if there had been some breach in bringing the deceased into detention or maintaining him in detention, if he was liable to be kept in lawful custody (as he clearly was as is clear from the judgment in Shaw ), the deceased was not ever entitled to be discharged from detention but only remanded to some lawful custody: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452, Starke J at 464.5. That is, if Mr Robicheau personally did not "know" or "reasonably suspect" Mr Coleman was an unlawful non-citizen, Mr Coleman is not entitled to pursue an action for wrongful imprisonment but could seek only to be remanded to lawful custody. (8) The decision in Re Patterson is a decision in which the reasons of the majority do not have a single strain of reasoning and which has been described as having "had no precedent value beyond its own facts": Shaw at [34] [35], [49]. (9) Indeed, in Ruddock v Taylor , the majority indicated (at [17]) that, in Shaw , a "majority of the Court also held at [39] that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister . " That is, it should not be regarded as authoritative in deciding what the law was pertaining to identification of who are aliens: Shaw at [34] [37]. (10) This is particularly telling given that there is a material factual distinction between the present case and that considered in Patterson . In that case, one member of the majority (McHugh J) posited that a British subject living in Australia at the time of the enactment of the Royal Style and Titles Act 1973 (Cth) in 1973 was not an alien. In the present case, the deceased was not living in Australia in 1973 but had returned to Scotland at that time for about four years after only a two year presence in Australia. Hence, it would seem even on the stated reasoning in Patterson that a majority of the Justices would have been of the view that the deceased in this case was an alien. That this conclusion was the correct result has been confirmed by the decision in Shaw . (11) The Minister contends that there is no basis for contending that the officer who took the deceased into detention failed to hold a reasonable suspicion that the applicant was an unlawful non-citizen even as the law stood in February 2003 (which is not the correct test for the reasons outlined above). (12) The High Court decided, in Ruddock v Taylor , that it was sufficient to found a reasonable suspicion in that case (at [49]): (a) that the detaining officers had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa; and (b) each officer had checked whether the respondent had any other visa. (13) It did not make the detention unlawful in Ruddock v Taylor that the High Court had, in an earlier decision, quashed the cancellation. What was determinative was the power to detain in s 189 of the Act. That power is not based on the validity or otherwise of the cancellation decision that founds the reasonable suspicion. (14) In the case before this Court, Mr Coleman was detained on 25 February 2003 after the first respondent had cancelled his visa pursuant to s 501 of the Act. The evidence establishes that the officer who detained Mr Coleman (Mr Robicheau) held the view that the deceased was an unlawful non-citizen. The Minister's first contention is that this view was plainly correct and, as such, Mr Robicheau relevantly knew him to be such. In any event, the evidence establishes Mr Robicheau's reasonable suspicion under s 189: (a) first, Mr Robicheau was provided with the cancellation decision; (b) second, Mr Robicheau reviewed Mr Coleman's file documents; and (c) third, Mr Robicheau formed the view that in light of the cancellation decision and the fact that he did not hold any other visas, that he was an unlawful non-citizen. (15) Once Mr Coleman's detention was lawful on 25 February 2003 nothing remains of the applicant's case for a declaration and damages for false imprisonment. There is no change pleaded between 25 February 2003 and 9 December 2003 that would make the lawful detention unlawful. (16) The respondents submit that the cancellation decision of the first respondent, acted upon by Mr Robicheau, resulted in the lawful detention of Mr Coleman. There is no cause of action disclosed by the FASC. In those circumstances the applicant has no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) Federal Court of Australia Act . (It is not necessary for the respondent to establish that the proceeding are hopeless or bound to fail: s 31A(3).) The FASC should be dismissed. 9 In response, counsel for the applicant effectively resiled from the pleading at [28] and from part of the pleading at [29] of the FASC (excerpted at [4] above) by stating that the applicant no longer pressed that the respondents, in particular the first respondent's officer Mr Robicheau, had no cause to reasonably suspect that Mr Coleman was an unlawful non-citizen within the meaning of the Act. Having regard to the unchallenged evidence of Mr Robicheau referred to in [8(14)] above and his unchallenged evidence that at the time of Mr Coleman's detention he continued to reasonably suspect that he was an unlawful non-citizen and that at no subsequent stage leading up to the formal transfer of Mr Coleman to Villawood Immigration Detention Centre did he cease to hold a reasonable suspicion that Mr Coleman was an unlawful non-citizen, coupled with the following observations of Gleeson CJ, Gummow, Hayne and Heydon JJ in Ruddock v Taylor at 628: " [49] At the trial of these proceedings, those officers who had been responsible for effecting the respondent's detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent. [50] Plainly, each suspected that the respondent was an unlawful non-citizen. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non-citizen follows inevitably. [51] It also follows from that fact, and the reasons given earlier, that the respondent's detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent's visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act" there is no doubt, in my view, that counsel for the applicant was correct in resiling from the pleading in the way he did. 11 This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."


case_outcome: distinguished

case_text: The applicant's cause of action is pleaded in paras 28 and 29 of the FASC in the following terms: "28. On and from 25 February 2003 the first respondent and the second respondent did not know within the meaning of section 189 of the Migration Act 1958 and had no cause to reasonably suspect that the deceased was an unlawful non-citizen within the meaning of the said Act . PARTICULARS (a) The deceased was a British subject, (b) The deceased was not an alien, (c) Following Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 s 501 of the Migration Act 1958 ('the Act') could not apply to the deceased, (d) There was no basis for the formation of a reasonable suspicion that the deceased was an unlawful non-citizen under the Act. 29. The action of the first respondent and the second respondent by its representative the first respondent in causing the deceased to be detained at the Villawood Immigration Detention Centre and continuing to detain him up to 9 December 2003 being the date of the judgment of the High Court of Australia in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; [2003] 218 CLR 28 was: (a) Unlawful, illegal and a breach of the Migration Act 1958 in that it failed to have regard to the fact the deceased was not an unlawful non-citizen under the Act, (b) Unlawful, illegal and unreasonable for any period longer than was necessary to identify that the deceased was not an unlawful non-citizen under the Act." 8 In their written submissions, the respondents submitted that even if it were open to the applicant to establish that the cancellation decision was invalid because s 501 had no application to Mr Coleman following Re Patterson: Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, the action for false imprisonment must fail. The submissions took the following course: (1) In order to establish wrongful detention, the applicant must establish that the detention of Mr Coleman was beyond the power of the respondents (or their officers) and thus unlawful. (The applicant submitted to the contrary that it is for the respondents to demonstrate that the detention was lawful and, although nothing turns on this in the case at hand, I think this must be correct.) (2) Section 189 of the Act imposes an obligation, a duty, on an officer of the Department, who "knows or reasonably suspects that a person in the migration zone .... is an unlawful non-citizen" to detain that person. The distinction between "knows" and "reasonably suspects" reveals that the duty to detain applies at least to the following circumstances: (a) where the officer believes the person to be an unlawful non-citizen and is ultimately correct in that belief "knows"; and (b) where the officer believes the person to be an unlawful non-citizen, ultimately is not correct about that but had reasonably grounds for the belief "reasonably suspects". (3) In Ruddock v Taylor (2005) 222 CLR 612, the judgment of the majority shows the interplay between the objective and subjective elements at [26] [27]: "[26] It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or failure in lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189. [27] But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, 'an officer shall detain an unlawful non-citizen'. The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens." (Emphasis in original.) (4) This passage reveals that s 189 of the Act authorises and requires the detention of persons who are, at law, "unlawful non-citizens". However. it is not confined to such persons and extends to persons who the officer reasonably suspects to be such. (5) In the present case, the law is now clear beyond argument that the applicant was in truth and at law an "alien" at all material times ( Shaw ) and, not having a valid visa, was therefore an unlawful non-citizen (s 14 of the Act). (6) The short answer to the applicant's case is that the officer was correct in forming the view that the deceased was an unlawful non-citizen the officer relevantly "knew" him to be such. In these circumstances, the detention was authorised under s 189 of the Act and the applicant's present application must fail. (7) Furthermore, even if there had been some breach in bringing the deceased into detention or maintaining him in detention, if he was liable to be kept in lawful custody (as he clearly was as is clear from the judgment in Shaw ), the deceased was not ever entitled to be discharged from detention but only remanded to some lawful custody: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452, Starke J at 464.5. That is, if Mr Robicheau personally did not "know" or "reasonably suspect" Mr Coleman was an unlawful non-citizen, Mr Coleman is not entitled to pursue an action for wrongful imprisonment but could seek only to be remanded to lawful custody. (8) The decision in Re Patterson is a decision in which the reasons of the majority do not have a single strain of reasoning and which has been described as having "had no precedent value beyond its own facts": Shaw at [34] [35], [49]. (9) Indeed, in Ruddock v Taylor , the majority indicated (at [17]) that, in Shaw , a "majority of the Court also held at [39] that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister . " That is, it should not be regarded as authoritative in deciding what the law was pertaining to identification of who are aliens: Shaw at [34] [37]. (10) This is particularly telling given that there is a material factual distinction between the present case and that considered in Patterson . In that case, one member of the majority (McHugh J) posited that a British subject living in Australia at the time of the enactment of the Royal Style and Titles Act 1973 (Cth) in 1973 was not an alien. In the present case, the deceased was not living in Australia in 1973 but had returned to Scotland at that time for about four years after only a two year presence in Australia. Hence, it would seem even on the stated reasoning in Patterson that a majority of the Justices would have been of the view that the deceased in this case was an alien. That this conclusion was the correct result has been confirmed by the decision in Shaw . (11) The Minister contends that there is no basis for contending that the officer who took the deceased into detention failed to hold a reasonable suspicion that the applicant was an unlawful non-citizen even as the law stood in February 2003 (which is not the correct test for the reasons outlined above). (12) The High Court decided, in Ruddock v Taylor , that it was sufficient to found a reasonable suspicion in that case (at [49]): (a) that the detaining officers had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa; and (b) each officer had checked whether the respondent had any other visa. (13) It did not make the detention unlawful in Ruddock v Taylor that the High Court had, in an earlier decision, quashed the cancellation. What was determinative was the power to detain in s 189 of the Act. That power is not based on the validity or otherwise of the cancellation decision that founds the reasonable suspicion. (14) In the case before this Court, Mr Coleman was detained on 25 February 2003 after the first respondent had cancelled his visa pursuant to s 501 of the Act. The evidence establishes that the officer who detained Mr Coleman (Mr Robicheau) held the view that the deceased was an unlawful non-citizen. The Minister's first contention is that this view was plainly correct and, as such, Mr Robicheau relevantly knew him to be such. In any event, the evidence establishes Mr Robicheau's reasonable suspicion under s 189: (a) first, Mr Robicheau was provided with the cancellation decision; (b) second, Mr Robicheau reviewed Mr Coleman's file documents; and (c) third, Mr Robicheau formed the view that in light of the cancellation decision and the fact that he did not hold any other visas, that he was an unlawful non-citizen. (15) Once Mr Coleman's detention was lawful on 25 February 2003 nothing remains of the applicant's case for a declaration and damages for false imprisonment. There is no change pleaded between 25 February 2003 and 9 December 2003 that would make the lawful detention unlawful. (16) The respondents submit that the cancellation decision of the first respondent, acted upon by Mr Robicheau, resulted in the lawful detention of Mr Coleman. There is no cause of action disclosed by the FASC. In those circumstances the applicant has no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) Federal Court of Australia Act . (It is not necessary for the respondent to establish that the proceeding are hopeless or bound to fail: s 31A(3).) The FASC should be dismissed. 10 On the other hand, the consequence is that the FASC is to be read as if [28] was not there and as if [29] was amended so as to exclude Mr Coleman's actual detention on 25 February 2003 and be confined to his continuing detention up to 9 December 2003. Indeed, counsel for the applicant conceded as much, confining the pleading at [29] to Mr Coleman's continuing detention from 10 March 2003, when Mr Coleman's brother telephoned the Department and spoke to a Ms Cecilia Cheung, informing her that his brother and the whole family first arrived in Australian in 1967 and asking her whether she was aware of a High Court decision about British subjects not being subject to deportation. From that time on, so the argument went, Mr Coleman's continued detention until 9 December 2003 (when the High Court handed down its decision in Shaw ) was, in the face of the decision of the High Court in Re Patterson , unlawful in that the detaining authority was, from that time on, on notice that Mr Coleman first arrived in Australia on 30 October 1967 and it could no longer reasonably suspect Mr Coleman of being an unlawful non-citizen. 11 This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."


case_text: The applicant is the executrix of the estate of Gerard William Coleman who died on 17 March 2006. The applicant claims Mr Coleman was falsely imprisoned in the period 25 February 2003 (when he was first detained) to 9 December 2003 (when Shaw v Minister for Immigration & Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 was decided by the High Court of Australia): paras 28 and 29 of the Further Amended Statement of Claim ("the FASC"). 3 The background facts are not in dispute and are relevantly set out in the respondents' written submissions as follows: (1) Mr Coleman arrived in Australia on 30 October 1967 when he was 11 years old. (2) On 11 December 1969, Mr Coleman departed Australia. (3) On 28 January 1974, Mr Coleman returned to Australia and remained in Australia from that time onwards except for two relatively brief periods: 19 December 1979 13 January 1980 and 19 June 1982 4 December 1982. (4) On 1 September 1994, Mr Coleman became the holder of a Transitional (Permanent) Visa pursuant to reg 4(1) of the Migration Reform (Transitional Provisions) Regulations . (5) On 10 January 2003, the first respondent cancelled the applicant's Transitional (Permanent) Visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act "). (6) On 14 February 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), as it was then known, notified Mr Coleman that his visa had been cancelled. (7) On 24 February 2003, a delegate of the Secretary of the Department issued a search warrant to John Bernard Robicheau, an officer of the Department, pursuant to s 251(4) of the Act . The search warrant authorised Mr Robicheau to enter and search: "any building, premises, vehicle, vessel or place in which you have reasonable cause to believe there may be found: (a) an unlawful non-citizen, a removee or deportee, within the meaning of the Act ...". (8) Prior to detaining Mr Coleman, Mr Robicheau reviewed Mr Coleman's file, including the Visa Cancellation Decision record. He formed the view that Mr Coleman was an unlawful non-citizen. (9) On 25 February 2003, Mr Robicheau executed the search warrant and detained Mr Coleman pursuant to s 189 of the Act . The applicant was taken first to Wyong Police Station and then to Villawood Immigration Detention Centre. (10) Mr Coleman was held in Villawood Immigration Detention Centre from 25 February 2003 to 22 August 2005. The period of detention that is relevant to these proceedings is the period 25 February 2003 to 9 December 2003. 4 The applicant's cause of action is pleaded in paras 28 and 29 of the FASC in the following terms: "28. On and from 25 February 2003 the first respondent and the second respondent did not know within the meaning of section 189 of the Migration Act 1958 and had no cause to reasonably suspect that the deceased was an unlawful non-citizen within the meaning of the said Act . PARTICULARS (a) The deceased was a British subject, (b) The deceased was not an alien, (c) Following Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 s 501 of the Migration Act 1958 ('the Act') could not apply to the deceased, (d) There was no basis for the formation of a reasonable suspicion that the deceased was an unlawful non-citizen under the Act. 29. The action of the first respondent and the second respondent by its representative the first respondent in causing the deceased to be detained at the Villawood Immigration Detention Centre and continuing to detain him up to 9 December 2003 being the date of the judgment of the High Court of Australia in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; [2003] 218 CLR 28 was: (a) Unlawful, illegal and a breach of the Migration Act 1958 in that it failed to have regard to the fact the deceased was not an unlawful non-citizen under the Act, (b) Unlawful, illegal and unreasonable for any period longer than was necessary to identify that the deceased was not an unlawful non-citizen under the Act." 8 In their written submissions, the respondents submitted that even if it were open to the applicant to establish that the cancellation decision was invalid because s 501 had no application to Mr Coleman following Re Patterson: Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, the action for false imprisonment must fail. The submissions took the following course: (1) In order to establish wrongful detention, the applicant must establish that the detention of Mr Coleman was beyond the power of the respondents (or their officers) and thus unlawful. (The applicant submitted to the contrary that it is for the respondents to demonstrate that the detention was lawful and, although nothing turns on this in the case at hand, I think this must be correct.) (2) Section 189 of the Act imposes an obligation, a duty, on an officer of the Department, who "knows or reasonably suspects that a person in the migration zone .... is an unlawful non-citizen" to detain that person. The distinction between "knows" and "reasonably suspects" reveals that the duty to detain applies at least to the following circumstances: (a) where the officer believes the person to be an unlawful non-citizen and is ultimately correct in that belief "knows"; and (b) where the officer believes the person to be an unlawful non-citizen, ultimately is not correct about that but had reasonably grounds for the belief "reasonably suspects". (3) In Ruddock v Taylor (2005) 222 CLR 612, the judgment of the majority shows the interplay between the objective and subjective elements at [26] [27]: "[26] It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or failure in lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189. [27] But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, 'an officer shall detain an unlawful non-citizen'. The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens." (Emphasis in original.) (4) This passage reveals that s 189 of the Act authorises and requires the detention of persons who are, at law, "unlawful non-citizens". However. it is not confined to such persons and extends to persons who the officer reasonably suspects to be such. (5) In the present case, the law is now clear beyond argument that the applicant was in truth and at law an "alien" at all material times ( Shaw ) and, not having a valid visa, was therefore an unlawful non-citizen (s 14 of the Act). (6) The short answer to the applicant's case is that the officer was correct in forming the view that the deceased was an unlawful non-citizen the officer relevantly "knew" him to be such. In these circumstances, the detention was authorised under s 189 of the Act and the applicant's present application must fail. (7) Furthermore, even if there had been some breach in bringing the deceased into detention or maintaining him in detention, if he was liable to be kept in lawful custody (as he clearly was as is clear from the judgment in Shaw ), the deceased was not ever entitled to be discharged from detention but only remanded to some lawful custody: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452, Starke J at 464.5. That is, if Mr Robicheau personally did not "know" or "reasonably suspect" Mr Coleman was an unlawful non-citizen, Mr Coleman is not entitled to pursue an action for wrongful imprisonment but could seek only to be remanded to lawful custody. (8) The decision in Re Patterson is a decision in which the reasons of the majority do not have a single strain of reasoning and which has been described as having "had no precedent value beyond its own facts": Shaw at [34] [35], [49]. (9) Indeed, in Ruddock v Taylor , the majority indicated (at [17]) that, in Shaw , a "majority of the Court also held at [39] that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister . " That is, it should not be regarded as authoritative in deciding what the law was pertaining to identification of who are aliens: Shaw at [34] [37]. (10) This is particularly telling given that there is a material factual distinction between the present case and that considered in Patterson . In that case, one member of the majority (McHugh J) posited that a British subject living in Australia at the time of the enactment of the Royal Style and Titles Act 1973 (Cth) in 1973 was not an alien. In the present case, the deceased was not living in Australia in 1973 but had returned to Scotland at that time for about four years after only a two year presence in Australia. Hence, it would seem even on the stated reasoning in Patterson that a majority of the Justices would have been of the view that the deceased in this case was an alien. That this conclusion was the correct result has been confirmed by the decision in Shaw . (11) The Minister contends that there is no basis for contending that the officer who took the deceased into detention failed to hold a reasonable suspicion that the applicant was an unlawful non-citizen even as the law stood in February 2003 (which is not the correct test for the reasons outlined above). (12) The High Court decided, in Ruddock v Taylor , that it was sufficient to found a reasonable suspicion in that case (at [49]): (a) that the detaining officers had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa; and (b) each officer had checked whether the respondent had any other visa. (13) It did not make the detention unlawful in Ruddock v Taylor that the High Court had, in an earlier decision, quashed the cancellation. What was determinative was the power to detain in s 189 of the Act. That power is not based on the validity or otherwise of the cancellation decision that founds the reasonable suspicion. (14) In the case before this Court, Mr Coleman was detained on 25 February 2003 after the first respondent had cancelled his visa pursuant to s 501 of the Act. The evidence establishes that the officer who detained Mr Coleman (Mr Robicheau) held the view that the deceased was an unlawful non-citizen. The Minister's first contention is that this view was plainly correct and, as such, Mr Robicheau relevantly knew him to be such. In any event, the evidence establishes Mr Robicheau's reasonable suspicion under s 189: (a) first, Mr Robicheau was provided with the cancellation decision; (b) second, Mr Robicheau reviewed Mr Coleman's file documents; and (c) third, Mr Robicheau formed the view that in light of the cancellation decision and the fact that he did not hold any other visas, that he was an unlawful non-citizen. (15) Once Mr Coleman's detention was lawful on 25 February 2003 nothing remains of the applicant's case for a declaration and damages for false imprisonment. There is no change pleaded between 25 February 2003 and 9 December 2003 that would make the lawful detention unlawful. (16) The respondents submit that the cancellation decision of the first respondent, acted upon by Mr Robicheau, resulted in the lawful detention of Mr Coleman. There is no cause of action disclosed by the FASC. In those circumstances the applicant has no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) Federal Court of Australia Act . (It is not necessary for the respondent to establish that the proceeding are hopeless or bound to fail: s 31A(3).) The FASC should be dismissed. 10 On the other hand, the consequence is that the FASC is to be read as if [28] was not there and as if [29] was amended so as to exclude Mr Coleman's actual detention on 25 February 2003 and be confined to his continuing detention up to 9 December 2003. Indeed, counsel for the applicant conceded as much, confining the pleading at [29] to Mr Coleman's continuing detention from 10 March 2003, when Mr Coleman's brother telephoned the Department and spoke to a Ms Cecilia Cheung, informing her that his brother and the whole family first arrived in Australian in 1967 and asking her whether she was aware of a High Court decision about British subjects not being subject to deportation. From that time on, so the argument went, Mr Coleman's continued detention until 9 December 2003 (when the High Court handed down its decision in Shaw ) was, in the face of the decision of the High Court in Re Patterson , unlawful in that the detaining authority was, from that time on, on notice that Mr Coleman first arrived in Australia on 30 October 1967 and it could no longer reasonably suspect Mr Coleman of being an unlawful non-citizen. 11 This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."


case_outcome: cited

case_text: issues raised in the appeal are to be considered afresh on the basis of the evidence before this Court, notwithstanding that this differs from the evidence before the delegate ( Pioneer Computers Australia Pty Limited v Pioneer KK (2009) 176 FCR 300 at [23]). The respondent has filed a notice of appearance, but has indicated that it does not propose to take any further action in relation to the appeal. That is, the respondent submits to any order of the Court save as to costs. Mr Shen is the sole director and shareholder of Solar International Proprietary Limited, trading as Solar Sports. He says that he is responsible for the day to day business activities of the company, and has authorised the company to use the trade mark. In his evidence, Mr Shen annexes copies of business records of the company, including commercial invoices, bills of lading, shipment advice, and tax invoices, relating to two shipments of footwear within the relevant period. The documents annexed to the affidavit establish that the first shipment was purchased on 1 May 2006, which led to sale of footwear under the trade mark. Those goods were sold under the trade mark in the period from 1 August 2006 to 28 February 2007. It is apparent that that period, in its totality, was within the relevant period. I also note that the goods the subject of that shipment were sold to customers in New South Wales, Queensland, and the Australia Capital Territory.


case_outcome: discussed

case_text: applicant must establish both ' use ' and ' use in good faith of the trade mark ' during the relevant period. As Drummond J pointed out in Woolly Bull Enterprises Pty Limited v Reynolds [2001] FCA 261 ; (2001) 107 FCR 166 at [14] , an applicant for removal must show that ' at no time during [the relevant period]' has there been use. It follows, as his Honour pointed out, that an opponent is entitled to rebut the allegation by proving even a single use on just one occasion during the three year period, such use being in good faith. At [16], his Honour expressed the view that the expression ' use in good faith ', has a well understood meaning in this context: namely real, as opposed to token, use in a commercial sense. I am satisfied that the applicant has demonstrated real commercial use of the trade mark by the company. The evidence also establishes more than one act of use during the relevant period, were it necessary to do so. I am satisfied that the use was authorised by the applicant. That is sufficient for the purposes of s 92(4)(b) and s 100(3)(a). The evidence establishes use during the relevant period of the trade mark on footwear. The registration was for a class of goods beyond that description. The removal application should therefore not succeed insofar as it relates to footwear. The applicant has not sought to maintain the registration for the goods beyond footwear. The applicant does not oppose the removal of the trade mark insofar as it relates to those other goods.


case_title: Brittingham v Williams [1932] VLR 237

case_text: appellant has submitted, in essence, that the absence of reasons given by the learned Federal Magistrate for refusing to go behind the judgment gave rise to an error of law. He has cited as authority Petitt v Dunkley (1971) 1 NSWLR 376, a decision of the New South Wales Court of Appeal. However, with respect, Petitt is in no way comparable to the case which was before her Honour, or the case before me. In the present case there is a history of litigation demonstrating that there is a judgment debt upon which the bankruptcy notice, and subsequently the creditor's petition, are founded. It was clear to her Honour, as it is clear to me, that the appellant has had numerous opportunities in Court, across both Federal and State jurisdictions, through multiple actions, and through multiple levels of appeal, to establish flaws in either the judgment debt or the process which has resulted in the judgment debt being enforceable against him. He has been consistently unsuccessful. While as a general rule it is desirable to give reasons for a decision, to paraphrase Cussen ACJ in Brittingham v Williams [1932] VLR 237 at 239, a case may 'be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person'. In my view, this is such a case with respect to this ground of appeal.


case_text: a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: • where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) • the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) • taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) • whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) • whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) • whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) • the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'


case_text: appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act , the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo , Padagas and CSR cited earlier in this judgment as authority for this proposition.


case_outcome: followed

case_title: French v Wilcox [2001] FCA 95

case_text: at the subsequent hearing before Rimmer FM the appellant was at liberty to raise issues relevant to the contents of the National Personal Insolvency Index so far as applied to him, including for example details of any debt agreement in relation to the debt on which the creditor relies. The purpose of O 77 r 19(3) Federal Court Rules (and r 31.06(3) Federal Magistrates Court Rules) would seem to be to provide the court with evidence that there is no debt agreement in force which would preclude a creditor from proceeding further with a creditor's petition, and to provide evidence of any other proceedings in bankruptcy which might have a bearing on the making of a sequestration order ( French v Wilcox [2001] FCA 95 at [34] per Lee and Carr JJ). In this case the appellant did not raise any issues of this nature before her Honour and accordingly her Honour was entitled to make the findings she did. A similar issue was raised in French v Wilcox where an affidavit under O 77 r 19(3) was sworn on 21 July 2000 and, after the matter came before the court on that date, the hearing of the creditor's petition was adjourned to 30 August 2000 when the primary judge made a sequestration order. On appeal Lee and Carr JJ said: 'Likewise, his Honour had an index search sworn on 21 July 2000. In the absence of any suggestion from the appellant that any proceedings in bankruptcy had taken place between 21 July 2000 and 30 August 2000, he was, in our opinion, entitled to assume that no such proceedings (including the making of any debt agreement) had taken place.' (at [37]) These grounds of appeal are referable to O 77 r 19(4) Federal Court Rules , mirrored in r 31.06(4) Federal Magistrates Court Rules. As pointed out by Lee and Carr JJ in French v Wilcox [2001] FCA 95 at [35] . 'The evident purpose of rule 19(4) is to provide a means of proving what is required by s 52(1)(c) of the Act, ie the fact that the debt or debts on which the petitioning creditor relies is or are still owing.' In written submissions, the appellant claims that the respondents failed to file an affidavit of final debt sworn as soon as practicable before the hearing date stating that the debt relied upon is still owing and the amount of the debt. In the absence of that affidavit, there was no material before the Court to justify a finding of a final debt or the making of a sequestration order. The circumstances of this case bear interesting similarities to those in French v Wilcox . In the absence of any real indication that the debt had been paid when the matter was before her Honour on 26 August 2005, it was open to her Honour to infer that the debt was still owing. The appellant has not brought any evidence before me which would in any way negate that finding. I reject the submission by the appellant that there was no material before Rimmer FM to justify a finding of a final debt or the making of a sequestration order. Both grounds of appeal raise issues of finality of decision. It is convenient to consider these grounds together. Original Notice of Appeal Ground 3


case_title: Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594


case_text: general rule is clear. It has been a principle of the common law for many years. Lord Hobhouse, delivering the judgment of the Privy Council, articulated the rule in Grey v Manitoba and North Western Railway Co of Canada (1897) AC 254 at 267 as follows: 'The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the Courts below. As the matter stands they have not been touched by the Courts below... (Their Lordships) confine themselves to deciding the issues which the Courts below were invited by the plaintiffs to decide, namely, whether there can be a judicial sale, and what it is that the receiver of the revenues of the division is entitled to receive.'


case_title: Gomez v MIMIA (2002) 190 ALR 543

case_text: principle has also been applied in many decisions of the Federal Court, including Iyer v MIMIA [2000] FCA 1788 and Gomez v MIMIA (2002) 190 ALR 543. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: • where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) • the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) • taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) • whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) • whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) • whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) • the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'


case_title: Guss v Johnstone (2000) 171 ALR 598

case_text: summary, the appellant submits that the application to set aside the bankruptcy notice is not spent and will only be spent when leave to appeal is refused by the High Court, and orders are settled. Accordingly, the respondents could not produce an affidavit verifying par 4 of the creditors' petition as required by r 31.04 of the Federal Magistrates Court Rules 2001 (as they were prior to amendment) until an order is settled. As authority for this proposition, the appellant relies on Guss v Johnstone (2000) 171 ALR 598. In Guss a bankruptcy notice was issued in respect of a judgment of the Magistrates Court which was eventually appealed (unsuccessfully) to the Full Court of the Supreme Court of Victoria. The debtor filed an affidavit pursuant to s 41(7) of the Bankruptcy Act , with the result that time for compliance with the notice was extended until the Federal Court determined whether it was satisfied that the appellant had a counter-claim, set-off or cross demand such as referred to in s 40(1)(g) of the Act. Sundberg J held that he was not satisfied that the appellant had such a counter-claim, set-off or cross demand; the debtor did not comply with the requirements of the bankruptcy notice, and as a result the debtor committed an act of bankruptcy. The debtor appealed unsuccessfully to the Full Court of the Federal Court, and then to the High Court. Rimmer FM considered this issue in the course of her decision. Her Honour noted that the appellant applied to have the bankruptcy notice set aside; the application was heard on 13 May 2005 by Deputy District Registrar Baldwin and dismissed; the appellant was then served with the creditor's petition; as of the date of the hearing of the matter by Rimmer FM the appellant had not paid the debt owing to the respondents, and clearly he had committed an act of bankruptcy. Turning to the submissions of the appellant, it is difficult to see how the appellant is assisted by his reliance on Guss . The only relevance of Guss is that the debtor in that case, like the debtor in the case before me, also sought to raise issues as to the validity of the debt upon which the bankruptcy notice was founded. In that case, as has also been the case here as evidenced by the history of litigation involving the appellant and the respondents, the debtor was unsuccessful. In my view it is incorrect for the appellant to assert that the issue is not 'finally decided' until all avenues of appeal in the matter are exhausted. This is for at least two reasons. First, the plain reading of r 31.04 is that, once a bankruptcy notice is issued by the Official Receiver, it is open to the debtor to make an application to have the bankruptcy notice set aside by a court. In this case, the courts having jurisdiction under the Bankruptcy Act are the Federal Court of Australia and the Federal Magistrates Court (s 27 Bankruptcy Act ). The application by the appellant to have the bankruptcy notice set aside was heard in the Federal Court before Deputy District Registrar Baldwin. In relation to matters before the Federal Court, it is open to either a Judge or a Registrar of the Federal Court of Australia to deal with an application to set aside a bankruptcy notice (this is clear from s 35A(1)(h) Federal Court of Australia Act 1976 (Cth) and O 77 r 7 and Sch 3 Federal Court Rules ). 'Decided' in this context bears the plain meaning of the court having entertained an application, and making an order on the basis of that application. In this case, the appellant's application to have the bankruptcy notice set aside was decided by Deputy District Registrar Baldwin on 13 May 2005 when the application was dismissed.


case_text: second issue is that it is very clear that the application to set aside the bankruptcy notice was finally decided by the Deputy District Registrar on 13 May 2005. In the context of r 31.04 Federal Magistrates Court Rules , the concept of finality is referable to whether the decision in relation to the application to set aside the bankruptcy notice finally determined the rights of the applicant or the respondent in favour of either of them. A similar test applies in a number of contexts, for example: • interpreting the meaning of 'final judgment or final order' in s 40(1)(g) Bankruptcy Act (see, for example, the test articulated by Lord Esher MR in In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512 at 516); and • distinguishing a 'final judgment' from an 'interlocutory judgment' (see, for example, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 440 and Windeyer J at 443).


case_title: In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512


case_title: Iyer v MIMIA [2000] FCA 1788

case_text: principle has also been applied in many decisions of the Federal Court, including Iyer v MIMIA [2000] FCA 1788 and Gomez v MIMIA (2002) 190 ALR 543. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: • where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) • the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) • taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) • whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) • whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) • whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) • the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.' In the case before me although the appellant was not legally represented, I understand that he is in fact a solicitor and therefore at somewhat less of a disadvantage in conducting a case before a court than self-represented litigants without legal qualifications. No explanation was provided by the appellant as to why this ground of appeal was not raised before her Honour indeed that hearing would have been a timely opportunity to do so other than the fact that the appellant considered that he was entitled to raise new issues by way of appeal before this Court. Finally, the fact that this ground of appeal is but one of a number involving issues which were not raised before her Honour suggests, to paraphrase Gyles J in Iyer v MIMIA [2001] FCA 929 at 61, that the appellant is asking this Court to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. In my view the Court should not permit the proper process to be so ignored. In any event, a brief consideration of this ground of appeal indicates that it is without merit. The respondents had satisfied their obligations by conducting a search and filing the required affidavit the day before the nominated date for the hearing of the petition, namely the date on which the matter came before District Registrar Ramsey and was adjourned to be heard before a Federal Magistrate. This is clear because: • section 104 Federal Magistrates Act 1999 (Cth) contemplates registrars of the court hearing, continuing to hear, or not hearing, applications which come before them • To find otherwise would in my view impose unnecessary additional burdens on creditors in such circumstances.


case_text: the evidence, her Honour was satisfied of all the matters in s 52(1) , and noted that the appellant had not in his evidence or submissions to the court put a case that he was solvent (par 29). Accordingly in her Honour's view the matter turned on the question whether there was other sufficient cause within the meaning of s 52(2) why a sequestration order ought not to be made, and whether her Honour should exercise her discretion to dismiss the petition. In deciding whether to exercise her discretion her Honour considered: • A potential counter-claim, set-off or cross-demand of the appellant related to the original litigation between the parties, but which her Honour considered continued to suffer from all the deficits identified by Cooper J in Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642. • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed the respondents had committed contempt of court, but which her Honour considered was unlikely to have any prospects of success, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed that the judgment of Cooper J had been obtained by fraud or collusion or mistake, but which her Honour considered was not supported by the evidence before her nor by the decision of Cooper J, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim described by her Honour as being essentially that an act of bankruptcy had not been committed by the appellant. Her Honour summarised this claim of the appellant as being that he should have been successful before Cooper J, the order for costs should not have been made, the appellant should not be indebted to pay those costs to the respondents, and, as a result, in not paying the debt the appellant has not committed an act of bankruptcy. Her Honour considered that the appellant had committed an act of bankruptcy, and that this was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim by the appellant that the bill of costs produced for taxation following the decision of Cooper J included items which did not relate to the proceedings under Pt 4A Trade Practices Act 1975 (Cth). In her Honour's view, these matters should have been addressed by the appellant in the taxation process in the Federal Court of Australia, and there was no evidence before her to establish that they were raised nor what the outcome was of it being raised at the taxation. • A claim by the appellant that there were defects in the petition and/or bankruptcy notice. Her Honour considered this claim in detail, including reviewing Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 and The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2000) 109 FCR 33, which are the leading authorities in this area. Her Honour summarised this claim as follows: 'In this matter the debtor contends that par 1 of the petition states that the creditors are owed an amount due under the order of the Federal Court and that the bankruptcy notice fails to contain the judgment or certificate of taxation. He says that where in par 2 it says that the creditor does not hold security over the property of the debtor, that this leaves doubt as to whether the one or the other holds security over the property of the debtor. Further he contends that the petition refers to the words 'creditor' and 'creditors' including reference to the agent for the Petitioner which creates a doubt as to who the Petitioner is and whether or not there are two joint petitioners and whether or not the agent holds instructions to act on behalf of both petitioners. He says that par 4 of the Petition fails to state the date of the act of bankruptcy.' (at [69]) Her Honour was satisfied that the creditors' petition was overall compliant and in all respects clear and unequivocal, that the appellant's submissions concerning the reference to 'creditor' and 'creditors' was a spurious argument without merit, and that par 4 was compliant with the formal requirements of the prescribed Form.


case_text: recently, the High Court explained in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.'


case_title: NBBL v MIMIA [2006] FCA 1045


case_title: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310


case_title: Petitt v Dunkley (1971) 1 NSWLR 376


case_title: Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635


case_text: his written submissions, the appellant submitted: 'The Court erred in holding that the order of the Federal Court was a final judgment or order with (sic) the meaning of the act. Where an application for leave to appeal is not brought within 7 days does not render the judgment a final judgment or order within the meaning of the Act: Re Carmody: Ex parte Glennan [2000] HCA 37 at 19, 20 and 26. The Federal Court rules provide that extensions of time for an application for leave to appeal is brought out of time.' In this case the act of bankruptcy upon which the sequestration order was founded was the failure of the appellant to comply with a bankruptcy notice in respect of a debt the subject of a final judgment or final order within the meaning of s 40(1)(g) Bankruptcy Act . That debt arose from the failure of the appellant to pay the respondent the sum of $24 000.00 in accordance with a costs order made by Deputy District Registrar Baldwin in the Federal Court on 26 November 2004. In my view this submission of the appellant is misconceived. This is enough to dispose of this submission. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules ). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned ( inter alia ) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context.


case_text: is enough to dispose of this submission. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules ). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned ( inter alia ) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context.


case_title: Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475


case_text: articulation was adopted by the High Court in Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: • where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) • the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) • taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) • whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) • whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) • whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) • the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'


case_title: The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2000) 109 FCR 33


case_outcome: affirmed

case_text: matter before me is an appeal from a decision of Rimmer FM delivered on 12 October 2005 ( The Drink Nightclub & Anor v Worchild [2005] FMCA 1454). In that case the respondents successfully presented a creditor's petition seeking a sequestration order against the appellant, and were awarded costs by her Honour. The appellant seeks the following orders from this Court: 1. The appeal be allowed. 2. The orders of the Federal Magistrate of 12 October 2005 be set aside. 3. The application for a sequestration order be remitted to the Federal Magistrates Court for reconsideration. 4. Costs. Mr Cross is a director of The Drink Nightclub (Qld) Pty Ltd. In this judgment I shall refer to Mr Worchild as 'the appellant' and The Drink Nightclub (Qld) Pty Ltd and Mr Cross as 'the respondents'.


case_title: Thompson v Metham (1999) FCA 935

case_text: the appellant claimed in ground 1 of the supplementary notice of appeal that Rimmer FM erred in finding that the creditor's petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. In his submissions on this point, I note that the appellant, in relying on Thompson v Metham [1999] FCA 935 , actually addressed the issue whether a copy of the judgment and/or a copy of the certificate of taxation ought be attached to the bankruptcy notice . However in any event this ground of appeal fails for the reason that her Honour made no such finding as claimed by the appellant. Indeed, after considering the appellant's submission at par 69 of her judgment, her Honour went on to state: 'In relation to paragraph 1 the petition is compliant and the Bankruptcy Notice contains the order made on 25 November 2004 . Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs. ' (emphasis added) 2. The appellant submits that paragraph 2 of the petition 'states that the applicant creditor does not hold security of the property of the debtor this leaves doubt as to whether the one or the other holds security over the property of the debtor'. This issue was dealt with by her Honour at par 71 of her judgment where her Honour said: 'Paragraph 2 of the petition to (sic) also clear and unequivocal. It is a requirement of the standard form for such a statement to be made in those terns as to the holding of any security over any property of the debtor by the creditors. There is no uncertainty raised to a reasonable person with the knowledge of the debtor. There is no defect in the making of this statement.' There is no 'weight of evidence' indicating that the respondents do hold such security, or even raising doubt as to whether they hold such security, contrary to her Honour's finding. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. This also answers the seventh ground of appeal in the original notice of appeal, which accordingly fails. 3. The appellant submits that the 'petition refers to creditor and creditors including reference to the agent for the Petitioner. This creates doubt as to who the Petitioner is and whether or not there is two joint petitioners and whether or not the agent holds instruction to act on behalf of both petitioners'. In the judgment of Rimmer FM, her Honour dealt with this issue at par 73 as follows: 'Following his Honour's reasoning with which I agree the fact that an 's is left off the word creditor on one occasion does not create any confusion and is not a matter which would properly give rise to a substantive defect in the notice as required to set the Petition aside. I am satisfied that the debtor is fully aware that there are two creditors, one a company and one the director of that company. He is also well aware that the solicitors Hynes Lawyers act for both of the creditors. This is a spurious argument without merit.'


case_text: principle was again applied by the High Court in Water Board v Moustakos [1988] HCA 12 ; (1994) 180 CLR 491 at 497 where Mason CJ, Wilson, Brennan and Dawson JJ said: 'More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.'


case_text: matter is complicated by the number of related claims and appeals. In summary: 1. The genesis of this matter was proceedings commenced by the appellant against the respondents in the Federal Court of Australia in November 2003. The appellant claimed contraventions of the Trade Practices Act 1975 (Cth) in respect of the respondents' alleged refusal to honour a promotional card sold to the appellant by the Queensland University of Technology Association of Law Students. Those proceedings were heard and summarily dismissed by Cooper J on 24 May 2004 ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642). His Honour ordered that the appellant pay the respondents' costs of and incidental to the proceedings. 2. On 20 September 2004, an estimate of the respondents' bill of costs arising out of the decision of Cooper J was made pursuant to the provisions of O 62 r 46 Federal Court Rules and allowed in the sum of $24 000.00, for which sum a Certificate of Taxation was issued on 12 October 2004. 3. On 26 November 2004 Deputy District Registrar Baldwin in the Federal Court made an order that the appellant pay the sum of $24 000.00 to the respondents. 4. Bankruptcy Notice Q/N1238/2004 ('the bankruptcy notice') identifying the appellant as the debtor was issued by the Official Receiver on 15 December 2004. The bankruptcy notice was issued in relation to the appellant's failure to pay the respondents in accordance with the costs order of Deputy District Registrar Baldwin of 26 November 2004. 5. On 21 January 2005 the respondents served the bankruptcy notice on the appellant. 6. On 13 May 2005 before Deputy District Registrar Baldwin in the Federal Court the appellant sought to have the bankruptcy notice set aside. The appellant was unsuccessful and he was ordered to pay costs in the amount of $2500. The appellant unsuccessfully appealed this decision of the Deputy District Registrar ( Worchild v The Drink Nightclub (Qld) Pty Ltd ACN 090 830 854, in the matter of Worchild [2005] FCA 863 per Dowsett J), and then again unsuccessfully to the Full Court of the Federal Court ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240). As at the date of the hearing the appellant had sought special leave to appeal to the High Court from the decision of the Full Court. (I understand that special leave to appeal was refused: Worchild v The Drink Nightclub (Qld) Pty Ltd [2006] HCA Trans 223.) 7. On 3 June 2005, the respondents filed a creditor's petition in the Federal Magistrates Court applying for a sequestration order under s 43 Bankruptcy Act 1966 (Cth) (' Bankruptcy Act ') against the estate of the appellant in respect of the debt of $24 000.00 owing to them under the order of Deputy District Registrar Baldwin in the Federal Court of 26 November 2004. The document was accompanied by an affidavit of the second respondent sworn 31 May 2005, deposing that he had access to the books and records of the first respondent, and that the appellant had not paid, nor made arrangements to the satisfaction of the respondents for the settlement of the debt claimed in the bankruptcy notice. 8. On 20 June 2005 the appellant filed and served a Notice of Intention to Oppose the Petition in the Federal Magistrates Court. 9. The petition came before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005, however the Registrar directed that the matter be adjourned for hearing before a Federal Magistrate at 10.15 am on 26 August 2005. The matter then came before Rimmer FM. On the evidence, her Honour was satisfied of all the matters in s 52(1) , and noted that the appellant had not in his evidence or submissions to the court put a case that he was solvent (par 29). Accordingly in her Honour's view the matter turned on the question whether there was other sufficient cause within the meaning of s 52(2) why a sequestration order ought not to be made, and whether her Honour should exercise her discretion to dismiss the petition. In deciding whether to exercise her discretion her Honour considered: • A potential counter-claim, set-off or cross-demand of the appellant related to the original litigation between the parties, but which her Honour considered continued to suffer from all the deficits identified by Cooper J in Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642. • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed the respondents had committed contempt of court, but which her Honour considered was unlikely to have any prospects of success, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed that the judgment of Cooper J had been obtained by fraud or collusion or mistake, but which her Honour considered was not supported by the evidence before her nor by the decision of Cooper J, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim described by her Honour as being essentially that an act of bankruptcy had not been committed by the appellant. Her Honour summarised this claim of the appellant as being that he should have been successful before Cooper J, the order for costs should not have been made, the appellant should not be indebted to pay those costs to the respondents, and, as a result, in not paying the debt the appellant has not committed an act of bankruptcy. Her Honour considered that the appellant had committed an act of bankruptcy, and that this was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim by the appellant that the bill of costs produced for taxation following the decision of Cooper J included items which did not relate to the proceedings under Pt 4A Trade Practices Act 1975 (Cth). In her Honour's view, these matters should have been addressed by the appellant in the taxation process in the Federal Court of Australia, and there was no evidence before her to establish that they were raised nor what the outcome was of it being raised at the taxation. • A claim by the appellant that there were defects in the petition and/or bankruptcy notice. Her Honour considered this claim in detail, including reviewing Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 and The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2000) 109 FCR 33, which are the leading authorities in this area. Her Honour summarised this claim as follows: 'In this matter the debtor contends that par 1 of the petition states that the creditors are owed an amount due under the order of the Federal Court and that the bankruptcy notice fails to contain the judgment or certificate of taxation. He says that where in par 2 it says that the creditor does not hold security over the property of the debtor, that this leaves doubt as to whether the one or the other holds security over the property of the debtor. Further he contends that the petition refers to the words 'creditor' and 'creditors' including reference to the agent for the Petitioner which creates a doubt as to who the Petitioner is and whether or not there are two joint petitioners and whether or not the agent holds instructions to act on behalf of both petitioners. He says that par 4 of the Petition fails to state the date of the act of bankruptcy.' (at [69]) Her Honour was satisfied that the creditors' petition was overall compliant and in all respects clear and unequivocal, that the appellant's submissions concerning the reference to 'creditor' and 'creditors' was a spurious argument without merit, and that par 4 was compliant with the formal requirements of the prescribed Form. Her Honour carefully considered the leading authorities including Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 and issues relevant to the exercise of her discretion, which in the case before her Honour appeared to have been identified by the appellant as: • whether the appellant had a counter-claim against the respondents concerning the discount card • whether the appellant had a counter-claim against the respondents for an alleged contempt of court • whether the judgment of Cooper J was obtained by fraud and or collusion and or mistake • whether the respondents had acted in abuse of process • whether the appellant had actually committed an act of bankruptcy. After exhaustive consideration of these issues, her Honour concluded there was nothing in the submissions or on the evidence produced which would lead her to exercise her discretion in favour of the debtor under s 52(2)(b) of the Bankruptcy Act . The appellant is not appealing in relation to the exercise of Rimmer FM's discretion under s 52(2)(b) for the reasons found in her Honour's judgment. In his written submissions before me the appellant raised one new issue relevant to s 52(2)(b) , namely: 'The applicant is prosecuting a claim against the Law societies to recover the costs and damages in relation to the cost order.' At the hearing before me, the appellant explained that he commenced proceedings against the respondents on the basis of representations made by the Student Law Societies concerning the student discount card, and that he had commenced proceedings against the Student Law Societies on the basis of representations made by the second respondent. The essence of his submission was that, if the sequestration order were to be upheld, those proceedings would be stayed (TS p 6 ll 18-19).