case_text: Western Retirement Village Management Pty Ltd ("WRVM") was formerly the registered proprietor of "the Mews" situated at Lot 4, 285 Railway Parade, Upper Swan, Western Australia, being the whole of the land in Certificate of Title Vol 1950 Folio 469 ("the Land"). The Land was the subject of an unregistered investment scheme referred to as "the Mews Village" or "the Mews Retirement Village Scheme" ("the Scheme"), which is in the process of being wound up. Messrs Brian McMaster and Mark Mentha of KordaMentha were appointed receivers of the Scheme to oversee its winding up and were appointed as liquidators of WRVM upon the winding up of WRVM: Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699. 2 The Scheme and its participants were described by Finkelstein J in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699 at [4] to [10] in the following terms: 4. By way of background, the promoters of the [Scheme] described their purpose as being to establish and operate a top-quality resort style retirement village with facilities for respite care. The idea was to develop and sell self-contained and fully serviced units and townhouses to people over the age of 55 years. The village was to be located on land purchased from another company associated with the promoters. Investors would put up the deposit with the balance to be raised by loans from the vendor. A management company controlled by the promoters would operate the village. After payment of a management fee, the profit would go to the investors. The key attraction to investors was the expectation that they would be entitled to deduct from their assessable income not only the amount of their investment but also their proportionate share of the loan taken to pay the balance of the purchase price. 5 The Mews Village was to be established on [the Land]. The [L]and was registered in the name of [WRVM]. By a contract dated 18 April 2000, WRVM agreed to sell the [L]and to the fourth defendant, The Mews Village Nominees Pty Limited, for $93,425,000. Other agreements to which Mews Village Nominees is a party show that it entered into the contract as "bare nominee" for a group of investors described as "Investor Partners". The contract of sale provided for the payment of a deposit of $18,048,000 with the balance to be paid by a loan from the vendor secured by a mortgage over the [L]and. The purchase price was not the exchange value of the [L]and. The price far exceeded that value. This came about because under the contract the vendor was required to construct the village. The building work was to take place in two stages over several years. Most of the deposit was raised from the investors who were grouped into several partnerships. The balance was provided by the vendor under a non-recourse loan agreement. The agreement required the loan to be repaid out of the fees payable by residents of the village. In the event of default the vendor could only look to the [L]and for payment. 6 I indicated that the investors were grouped into several partnerships. The principal partnership is styled The Mews Village Partnership and has 14 "Investor Partners". It was established by a partnership agreement dated 18 April 2000. The parties to this agreement appear to be the Investor Partners (although no provision is made for them to execute the agreement) and two companies associated with the promoters, Mews Retirement Nominees Pty Ltd and the first defendant, GDK Financial Solutions Pty Ltd. The partnership business is described as "the development and operation of retirement village facilities at [the Land]". GDK was appointed to manage the partnership's business. Mews Retirement Nominees was appointed to hold the partnership property as "bare trustee for the partnership". ... 8 The Mews Retirement Village was to be managed by WRVM. To this end a Marketing Management and Profit Share Agreement was entered into between Mews Village Nominees (the purchaser of the [Land]) and WRVM. Only an unsigned copy of the agreement is in evidence. The copy does not indicate clearly the identity of the contracting parties. The front page suggests that the agreement is between WRVM and The Mews Retirement Nominees Pty Ltd which, it will be remembered, is the "bare nominee" of The Mews Village Partnership. A schedule records that the agreement is between WRVM and the Mews Retirement Village Nominees Pty Ltd. Notwithstanding those references, the body of the agreement shows that the agreement was between WRVM and Mews Village Nominees. The sealing clause is the latter company's name. A recital describes it as the purchaser of the [Land]. Moving on, the only substantive provision of the agreement to which reference should be made is the management fee which is set at 40 per cent of the profit derived by the village plus a commission of 1 per cent of the fees received from residents. This suggests that not much was to go to the investors, although one should not lose sight of the substantial tax advantage they derived from entering into the scheme. 9 Notwithstanding the complex series of agreements, and the subscription by investors of capital in the order of $8 million, The Mews Retirement Village did not get off the ground. All that has happened is that The Mews Retirement Nominees paid the purchase price for the [Land] using the investors' capital and loan funds obtained from the vendor. Despite receiving the purchase price, WRVM has not transferred the [L]and to the purchaser: [it] remains registered as the proprietor of the [L]and. Nor has WRVM carried out the building works which by the contract of sale it had promised to do. I assume it did not have the funds to undertake the work. There has been no accounting to investors for any of the money they contributed, despite many requests for information. The investors have simply been left in the dark. 10 There is no hope of the development going ahead, at least while it remains in the hands of its present controllers. GDK has been wound up. There is an unresolved dispute over the control of Mews Village Nominees. ... To be blunt, things are in a mess and it will take a good deal of time and great expense to sort them out. 3 What Finkelstein J referred to as a "mess" is made more complicated by a series of transactions that is an immediate cause of the present proceedings. At the risk of undue abbreviation (with consequent inaccuracy) that series of transactions was made by interests associated with a principal of WRVM (Mr Michael Brereton) and interests associated with one Mr Salvo (an investor in the Scheme both as an individual and through a number of related entities). Whether because the Scheme was not being implemented, or for some other reason (and it may not matter which), the Brereton interests agreed that the Salvo interests would advance money to WRVM, it is said secured against the Land, for the purpose of developing the Land in a manner contrary to that intended under the Scheme. Again at the risk of undue abbreviation, these proceedings are intended to decide whether these transactions created debts of WRVM that are secured by the Land. 4 On 12 March 2008, WRVM filed an interlocutory process. AVS Property Pty Ltd (ACN 094 311 645) ("AVS") and Rental Fleets Australia Proprietary Limited ("RFA"), members of the First Delta Group of Companies and entities associated with Mr Salvo, are the respondents. AVS and RFA were formerly the holders of a second ranking registered mortgage over the Land ("the AVS mortgage") and are presently the holders of a registered charge over the assets of WRVM ("the AVS charge"). National Australia Bank Limited ("NAB") was the holder of the first registered mortgage over the Land. 5 Pursuant to a contract of sale dated 6 December 2007, the Land was sold. The sale proceeded pursuant to orders made by Finkelstein J on 28 November 2006 and 6 December 2007. In substance, the orders required the mortgagees (NAB, AVS and RFA) to produce discharges of their respective mortgages so that the sale of the Land could proceed. The discharges occurred on the basis that NAB was paid the amount that it claimed was secured by its mortgage and a sum of approximately $400,000 was set aside in a separate bank account to cover certain contingencies. AVS and RFA were not paid out. Their discharges were ordered to be produced on the basis that there would be proceedings for the taking of accounts of what is secured by the AVS mortgage and the AVS charge and that, to assist that taking of accounts, interlocutory proceedings of the kind now under consideration would be instituted. 6 It is common ground that RFA does not have any claim against WRVM which is secured by either the AVS mortgage or the AVS charge. Accordingly, there is no need for an account to be taken in relation to what amount, if any, WRVM owes RFA. 7 The position of AVS is quite different. It contends that it has a claim against WRVM and that the amount claimed is secured by both the AVS mortgage and the AVS charge. The total amount claimed, about $14 million, exceeds the balance of the proceeds of sale of the Land after payment to NAB and of GST. That balance is about $13 million. 15 Against that statement of general position, it is necessary to set out the principal facts. Much of what is set out constitutes facts as found by Finkelstein J. No party in the present proceeding disputed those findings. Nor did any party in the present proceeding dispute the other facts set out below, though there was a lively dispute about the legal consequences that follow from those findings. 16 On 16 March 2000, WRVM contracted to purchase the Land for $2.85 million. It became the registered proprietor of the Land on 11 July 2000. Mr Michael Brereton was the sole director of WRVM. 17 Approximately one month later, on 18 April 2000, WRVM entered into a contract to sell the Land to The Mews Village Nominees Pty Ltd ("Mews") for $93,425,000 ("the Mews Sale Contract"). On 2 November 2006, Finkelstein J concluded, as a finding of fact, that although WRVM remained the registered proprietor of the Land, it held the Land as bare trustee for Mews: see also Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699 at [4] to [9]. In fact, it was not until 6 December 2007, when the Land was sold pursuant to the orders of Finkelstein J, that WRVM ceased to be the registered proprietor of the Land. 18 The Mews Sale Contract contained Special Conditions. By cl 6.1 of the Special Conditions, WRVM agreed that "Stage 1" would be constructed by WRVM in an expeditious manner. In general terms, WRVM was obliged to construct a number of three bedroom duplex and freestanding units, four bedroom duplex and freestanding units, and serviced apartments, including the necessary infrastructure. 19 Nothing of significance transpired between 2000 and September 2003. That was the problem. Significantly, the Land was not developed in accordance with the terms of the Mews Sale Contract. 49 On 28 November 2006, for the reasons dated 2 November 2006, Finkelstein J ordered the Scheme to be wound up: Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699. By paragraph 16 of those orders, his Honour directed the receivers of the Scheme to call for any person claiming any right, title or interest in Land to prove his or her claim by affidavit to be served by 22 December 2006. AVS responded to that direction. The substance of its response was relied upon by WRVM as providing a factual foundation for an estoppel claim in the event that I found each of the components as owing by WRVM to AVS and secured by the AVS mortgage or the AVS charge. In general terms, WRVM submitted that even if the debts were secured, the liquidators and receivers of WRVM had priority because of their reliance on representations made by, or attributable to, AVS. 50 AVS's response to the call for proofs was provided by way of affidavit sworn by Mario Salvo on 22 December 2006. Paragraph 2 confirmed that it was an "affidavit in support of the claims made by RFA, AVS and Statewide ... of their interests in the Land". Mr Salvo described himself as the director of RFA and the general manager of AVS. He went on to say that the sole director and secretary of AVS was a Mr Andrew Vito Salvo, but that nonetheless he was authorised to make the affidavit on behalf of RFA, Statewide and AVS. Significantly, the affidavit explained the background to and circumstances surrounding the events in and after early 2005. Mr Salvo deposed to the fact that in or about early 2005, he became concerned for "his investment". In the context, "his investment" could only refer to RFA's investment in the Scheme. (Strictly speaking, however, the documents record investment in the Scheme by Mario Salvo as an individual and by some of his related entities including DFX and CLA Holdings.) As a result of these concerns, Mr Salvo held discussions with Mr Brereton regarding whether RFA might assign its rights in the Scheme to WRVM for $2,696,296. A draft agreement was prepared, signed by WRVM but not signed by RFA. Salvo said that he chose not to sign the agreement for the sale of RFA's interests because he was not entirely sure he wanted RFA to assign its rights as an investor. In substance, he decided to hold the signed sale agreement and see how things in relation to the Land developed. 51 As at May 2005, the Land was subject to the Westpac mortgage. The Westpac facility had in fact expired on 29 October 2004 and penalty interest was being charged on an outstanding loan of $3.1 million. At this time two events crystallised. Mr Salvo spoke to Mr Brereton and was told by him that he was going to pay out the investors and intended winding up the Scheme. At the same time, Mr Salvo said he believed the Land had development potential with his property development expertise and capital base which provided him with an opportunity to recoup RFA's investment and make a profit from the development of the Land. 59 On 6 December 2007, Finkelstein J made orders that the court appointed receivers do all things necessary to progress and complete the sale of the Land in accordance with the Sale Agreement between WRVM and Clarendon Residential Group Pty Ltd. The sale of the Land was at arm's length. On 20 February 2008, Goldberg J made orders authorising the receivers to commence proceedings to prevent payment out of the proceeds of sale of the Land to AVS and RFA. On 13 March 2008, Finkelstein J noted the undertaking of WRVM to commence this interlocutory process and, on that undertaking, ordered the joinder of NAB to those proceedings, and effectively the discharge of the relevant mortgages so that completion of the sale of the Land could proceed. Completion of the sale took place on 17 March 2008. On completion, the NAB mortgage was discharged. The entitlement of AVS to the balance of the sale proceeds is the issue to be resolved in these proceedings. 60 Finally, on 3 March 2008, AVS's solicitors wrote to WRVM's solicitors. AVS asserted that the amount then due by WRVM to AVS under the AVS Facility Agreement was $5,857,286.36. WRVM submitted this was the first time that the AVS claim had included the five components identified earlier (see [8]). Although the profit share and management fee were said to be secured by the AVS mortgage or the AVS charge, the precise amounts owing were said to be incalculable. 61 On 17 March 2008, WRVM as guarantor paid to NAB the sum of $9,410,063.13 thereby discharging Salrest's liability to NAB.


case_outcome: followed

case_text: The first issue is whether each of the general ledgers and journal entries identified earlier (see [36] above) is a book kept by a body corporate under a requirement of the Corporations Act . They clearly are: see Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [223] [321]. The documents, on their face, purport to be documents kept by a body corporate. They are printouts of electronic records which identify the relevant body corporate by name, the nature of the document by name and, in many cases, the time and date on which the printout was printed. It was not submitted by WRVM, and there are no bases for contending, that the presumption arising under s 1305(2) has been rebutted. On the contrary. The evidence of the contents of the documents together with the unchallenged evidence of Mr Wunsch that the documents were sourced from the relevant body corporate reinforces the conclusion that each document is a book kept by a body corporate under a requirement of the Corporations Act . 70 The second issue is what facts those documents record. As noted earlier (see [33]-[37]), so far as is presently relevant, the documents record: 1. a loan by NAB to Salvern of $4 million; 2. a loan by Salvern to AVS of $2,953,067.22 with the notation "AVS Loan to [WRVM]"; 3. that $33,528.64 of the Deacons bill of $36,881.50 was on-charged to AVS; 4. a loan by AVS to WRVM of three amounts - $2,953,067.22 (with the notation "Re Salvern Loan"), $33,528.64 (being payment of legal fees) and $16,959.35; 5. a credit by AVS to WRVM of $3,328.57 with the notation "Tranche-2-La". 71 WRVM did not challenge the admissibility of these records or the facts recorded in them. Moreover, WRVM did not seek to cross-examine Mr Wunsch who identified the documents and the source of them. In the circumstances, the only conclusion to be drawn from those financial records is that AVS did advance the Tranche 2 Loan to WRVM under the AVS Facility Agreement. In this context, AVS also referred to cl 24 of the AVS Facility Agreement. It provided that AVS (described as the Financier) was entitled to maintain records specifying the payments made by AVS for the account of WRVM, any payments made by WRVM for the account of AVS under, inter alia , the AVS Facility Agreement and the interest, fees, charges, costs and expenses payable and that those records would, as against AVS, constitute conclusive evidence (in the absence of manifest error) of the matters set out in them. The documentation described earlier records the advance of the Tranche 2 Loan by AVS to WRVM. Whether other amounts were paid or incurred in relation to the Tranche 2 Loan was not disclosed. Those issues, if relevant, would be considered at the time of the taking of any account.


case_text: Finkelstein J considered and rejected the AVS profit share claim in his reasons for judgment in ASIC v GDK Financial Solutions Pty Ltd (in liq) (No 3) [2008] FCA 448 at [27] - [31] . Although the claim at that time was merely foreshadowed rather than actual, it turns out the actual claim is on precisely the same basis and in precisely the same terms as the foreshadowed claim rejected by Finkelstein J. While it is true that his Honour's comments on the profit share issue are non-binding dicta, I nevertheless consider them to be clearly correct and adopt them. Although I do not propose to repeat all of his Honour's reasons here, a simple restatement of the fundamental premise is that, in the absence of any definition of "profit" in the agreement, there is no reasonable, or even rational, implied definition or formula for profit under which it could be said that a profit was made. 108 Again, any implied definition must be reasonable and equitable. The definition must be in keeping with the purpose and other provisions of the agreement. Here, the purpose of the Development Agreement was the development of the Land. Again, cl 2 states that AVS is entitled to 50% of the profits from the "development of the land." On that basis, I consider that a reasonable and equitable definition of profit could only be one involving profit resulting from improvements made to the land (whether by construction of a housing development or otherwise). Because no development was undertaken, there can be no profit. 109 I should emphasise one other point made by Finkelstein J, which goes to answer a claim that profit that should be defined more broadly (a claim which I reject) to include profit derived from appreciation of the Land's value over the years due to a general rise in the real estate market. As noted by his Honour, the problem with this argument is that because WRVM was only the bare legal owner of the Land, and not the beneficial owner, it is not entitled to any proceeds from the sale. It goes without saying that AVS, apart from its mortgage interest (which as a secured legal interest superseded the equitable interests of the Mews investors), was neither a beneficial nor a legal owner of the Land. Neither WRVM nor AVS is entitled to the sale proceeds as an item of profit to which the joint venture agreement could attach. 110 With respect to the remaining items claimed by AVS (development costs incurred before 18 May 2005 of approximately $40,000 or $50,000, development costs incurred after 18 May 2005 of $1.4 million, and a management fee of $660,000), the fact that some amounts may be owing follows from the conclusion that the Development Agreements are valid and enforceable. Whether the particular amounts claimed are supportable is another story. For example, although a project management fee of approximately $660,000 is claimed, it cannot stand. Clause 3 of the Development Agreement states that AVS is entitled to a project management fee "equal to 5% of the before tax profits of the Joint Venture, with a minimum of $500,000 plus GST." Given that I have already concluded that there was no profit, it follows that the maximum amount that could be claimed is only $500,000 ex GST. Clause 3 further provides that any $10,000 monthly retainer fee charged is to be offset against the management fee, which might further diminish the amount allowable as a management fee. 111 I need not consider the accuracy of the fees and costs claims any further, however, because I conclude that those amounts are not secured by the AVS mortgage or charge. As noted earlier (at [77]-[78]) the all-moneys clause in the mortgage will not be held to secure debts of a fundamentally different character from those contemplated at the time at which the contract was entered into. Here, I consider that while the mortgage explicitly considered the two tranches of loans (the $1 million and $3 million advances) at the time of contracting in May 2005, the mortgage did not consider the development costs and management fees. As noted earlier, cl 3 of the AVS Facility Agreement states that the purpose of the mortgage loan agreement was to discharge encumbrances on the Land. In effect, it was a refinancing agreement of the distressed Westpac loan. I consider that the amounts now claimed to be secured as development costs and management fees are costs related to development, not costs relating to encumbrances, and are thus of a fundamentally different character from the debts contemplated at the time of the mortgage's execution. Further, I consider that this analysis applies equally to the all-moneys clause in the AVS charge.


case_outcome: discussed

case_text: Indefeasibility is the foundation of the Torrens system: Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 , 613. In Western Australia, the principle of indefeasibility of title is "give[n] expression to, and at the same time, qualif[ied] by" ss 68 and 134 of the TLA ( Bahr at 613). Each section refers to the concept in the context of the registered "proprietor". "Proprietor" is defined in s 4 of the TLA to include "in relation to freehold land, the owner, whether in possession, remainder, reversion or otherwise, of land or of a lease, mortgage or charge over land". As a result ss 68 and 134 of the TLA confer indefeasibility of title not only on the holder of the fee simple but also on the registered holder of an interest in the land including a mortgagee. The qualifications to or limits of indefeasibility for present purposes may be put to one side. It was not submitted that any exception arose for consideration. 64 In the circumstances that then existed: 1. WRVM was and remained the registered proprietor of the Land; 2. NAB was a registered mortgagee with priority over the other mortgagees, AVS and RFA; 3. NAB's mortgage and liability has been discharged; 4. The AVS/RFA mortgage had also been discharged but with the issue of WRVM's liability to AVS remaining unresolved together with the issue of whether any such liability was secured by the AVS mortgage. 65 In ascertaining whether WRVM is indebted to AVS and, if so, whether the whole or part of that debt is secured by the AVS mortgage necessarily involves questions of fact, and no less significantly, the proper construction of the terms of the AVS mortgage itself. It is therefore necessary to turn to consider the five components of the "debt".


case_outcome: cited

case_text: Another way of putting it is that there was an implied obligation on both parties to nominate the relevant related entities or representatives and an implied obligation on the part of AVS to generate a development proposal in return for its management and retainer fees. I consider such terms to be reasonable, equitable, obvious, and necessary within the meaning of the test for the implication of contractual terms set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226 , 283 and the subsequent cases that have adopted that test. In the absence of any development efforts by AVS, WRVM could have asserted breach of contract based on complete failure to perform; similarly, AVS could have asserted breach of contract if WRVM had failed to allocate the $10,000 per month. Accordingly, I consider that the lack of a specified development proposal did not render the agreements unenforceable. 97 WRVM's further contention was that even if the agreements were enforceable contracts, then properly construed they were subject to a condition precedent that the Scheme would be wound up and, in particular, WRVM would be discharged from its obligations under the Mews Sale Contract (see [50]-[56] above), but that condition precedent had not been satisfied. That contention proceeded on an assumption that it was not possible for WRVM to enter into the Mews Sale Contract and yet at the same time contract with Mario Salvo under the Heads of Agreement. That assumption is incorrect. It may be reasonable to conclude that WRVM was not going to be in a position to complete both agreements but that does not mean that one or both of the agreements is subject to a condition precedent.


case_text: Before turning to consider the five components identified earlier (see [8]), it is necessary to restate some important principles about Torrens land and the securities registered against it. The Torrens system implemented in Western Australia by the Transfer of Land Act 1893 (WA) ("the TLA") is a system of "title by registration" ( Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 , 385) and not a system of "registration of title". Registration has two consequences: it not only confers title but it also determines priority. Priority is governed by order of registration and not by date of execution.


case_text: It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet & Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ). 92 Furthermore, even if the preamble's identification of the parties was uncertain or ambiguous, cl 1 of the Heads of Agreement clearly states that "WRVM and MS" will form the joint venture, and cl 2 identifies AVS as the Salvo entity that will discharge the Westpac debt, loan money to WRVM, etc. To the extent that there is any inconsistency between the recitals and the operative portion of the contract, the operative portion controls: Harpur v Levy (2007) 16 VR 587 at [63] and Chacmol Holdings Pty Ltd v Handberg (as administrator of Australian Risk Analysis Pty Ltd) [2005] FCAFC 40 ; (2005) 215 ALR 748 at [39] - [50] , [105] and [106]. The same analysis applies equally to the Development Agreements. Clause 2 of the Development Agreement states that "WRVM and MS have formed a joint venture" and the same is true of cl 2 of the Second Development Agreement.


case_text: It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet & Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).


case_outcome: applied

case_text: However, in the present case, that conduct does not assist either party. The longstanding rule is that parties are bound by the unambiguous terms of their written agreement unless it is affected by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 , 483-84 [33] and [35]. The terms of the AVS Facility Agreement are not ambiguous. In the absence of such ambiguity, the written document stands on its own as a record of the agreement between the parties to it. 75 The question which then arises is whether the Tranche 2 Loan is secured by the AVS mortgage. That requires consideration of the proper construction of the terms of the AVS mortgage itself. 76 As noted earlier (see [28]), the AVS mortgage secured the "Secured Money", which was defined to mean "all amounts now or at any time in the future" falling within identified categories: see cl 1.1(27). The categories included: (a) all money now or in future owing or payable to the Mortgagee [(AVS)] ... by [WRVM], either alone or on joint or partnership account and whether as principal debtor, guarantor or indemnifier on any account; ... (i) all costs and expenses that the Mortgagee incurs or becomes liable for in connection with this Mortgage or any Security Document. "Security Document" was defined to mean the mortgage and every other agreement between WRVM and the mortgagee: cl 1.1(1) and (28).


case_text: These provisions, read together, are commonly described as an "all-moneys" clause. Provisions such as these are not at large: Fountain v Bank of America Trust & Savings Association (1992) 5 BPR 11,817 at 11,819. The clause is confined in its operation " by reference to the context in which [it] appear[s] and by reference to the commercial purpose for which [it was] intended to serve ": Fountain at 11,819-11,820. Those matters are ascertained by having regard to the language of the clause construed in the context of the security instrument as a whole, the apparent purpose and object of the transaction and any admissible evidence as to the surrounding circumstances: Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 at [43] . Consistent with that approach, an all-moneys clause will not secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time they entered into the contract: McVeigh, in the matter of Piccolo v National Australia Bank Limited [2000] FCA 187 at [84] . As Gleeson CJ said in Fountain (at 11,820), "The critical question ... is whether, on the true construction of the document and in the events that have occurred, the transaction [the Tranche 2 Loan was] within the purview of [cll 1.1(27) and (28) of the AVS mortgage]."


case_outcome: distinguished

case_title: Hadley v Hazian Proprietary Limited (Full Court of the Supreme Court of Western Australia, unreported, 13 July 1995)

case_text: WRVM's primary complaint was as to the identity of the contracting parties. As noted earlier (see [21]), the preamble referred to the fact that " Mario Salvo or his nominee (defined as "MS") and WRVM and or its nominee "wish[ed] to establish a joint venture for the development of [the Land] ". The meaning of that provision is unambiguous and certain. Mr Salvo and WRVM were the parties to establish "a joint venture for the development of the Land." However, each was given a power to nominate an alternative. If no alternative party was nominated, Mr Salvo and WRVM alone were bound to establish a joint venture. The clause unambiguously records that the parties intended to create a binding agreement which created a joint venture and then governed the relationship between them. WRVM's contention that the parties were insufficiently defined or uncertain to constitute a binding agreement is without foundation. Moreover, contrary to the submissions of WRVM, the decision of the Full Court of the Supreme Court of Western Australia in Hadley v Hazian Proprietary Limited (Unreported, 13 July 1995) does not support its contention. As the unanimous Full Court in Hadley made clear, a clause in the form of that found in the preamble to the Heads of Agreement is unambiguous and certain. What was unambiguous but uncertain was a clause which required a sale to be implemented by any one of A, B or C or some or all of them or their respective nominees. The uncertainty arose because the clause did not identify who was bound to purchase. That criticism cannot apply to the preamble. The preamble provides with certainty that Mario Salvo and WRVM wish to establish a joint venture and that each of them is entitled to nominate an alternative. Moreover, cl 1 of Heads of Agreement provides that each of the WRVM and "MS" is to be entitled to 50% of the profits of the joint venture subject to certain variations. If in the future WRVM wished to nominate an alternative or sell down part of its 50% interest in the joint venture then it was entitled to do so. That might never occur. And until it did, the parties and their obligations were unambiguous and certain.


case_title: Harpur v Levy (2007) 16 VR 587

case_text: Furthermore, even if the preamble's identification of the parties was uncertain or ambiguous, cl 1 of the Heads of Agreement clearly states that "WRVM and MS" will form the joint venture, and cl 2 identifies AVS as the Salvo entity that will discharge the Westpac debt, loan money to WRVM, etc. To the extent that there is any inconsistency between the recitals and the operative portion of the contract, the operative portion controls: Harpur v Levy (2007) 16 VR 587 at [63] and Chacmol Holdings Pty Ltd v Handberg (as administrator of Australian Risk Analysis Pty Ltd) [2005] FCAFC 40 ; (2005) 215 ALR 748 at [39] - [50] , [105] and [106]. The same analysis applies equally to the Development Agreements. Clause 2 of the Development Agreement states that "WRVM and MS have formed a joint venture" and the same is true of cl 2 of the Second Development Agreement.


case_text: There is no general rule that parties having knowledge of a prior contract between different parties may not subsequently enter into a contract with fundamentally inconsistent terms (which is really the result of the "implied condition precedent" argument put by WRVM). The lack of any such rule is the inevitable consequence of the efficient breach theory of contract, which, although it has occasionally been criticised, remains the controlling theory of contract damages under Australian law: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [159] . 99 To understand both the theory and its rationale, a simple hypothetical may assist. Suppose A agrees on Day 1 to sell his bicycle to B for $25 (which happens to be fair market value at the time of contract but $5 more than A himself paid) with delivery to take place on Day 10. Now suppose that on Day 5, C approaches A and offers to buy the bicycle for the above-market price of $50 on the spot (maybe he happens to have an urgent need for a bicycle for which he is willing to pay a premium). It is perfectly rational in those circumstances, and completely open under the law of contract, for A to sell the bicycle to C, breach his contract with B, pay damages, and pocket the difference, if any. Assuming there is nothing special about A's bicycle and equivalent bicycles are readily available in the market, the damages for breach are likely to be only the replacement costs (i.e. fair market value) of a like bicycle on Day 10, the date of delivery. There is of course a risk to A that the market price of bicycles will rise. Provided that the price does not rise above $45 by Day 10, however, A will make more money by breaching his contract with B and selling to C even after he pays B damages. The law encourages (or at least allows) this eventuality on the basis that everyone is better off (or at least no worse off). A makes a bigger profit, B gets a substantially identical replacement bicycle (or strictly speaking, the cost of cover), and C gets the bicycle he wanted. 100 In short, which of the contractual arrangements WRVM decided to complete (if any) was ultimately a matter for it to decide in the future in light of its own enlightened self-interest. And even if WRVM entered into the Heads of Agreement or Development Agreements on the basis of an ill-informed judgment on its part either that ultimately it could or would extricate itself from the Mews Sale Contract or that it could make a greater profit by simply breaching that contract and paying damages, it does not assist WRVM. The consequence or consequences that flowed as a result of WRVM failing to complete one or more of those arrangements was ultimately to be determined depending on the way in which the facts resolved themselves and the remedial step or steps (if any) the disappointed contracting party took against WRVM. As in the bicycle hypothetical where A runs the risk that the cost of bicycles on Day 10 may exceed $45 (i.e. he will incur a loss rather than a profit by breaching the first contract), WRVM ran the risk that it would not be able to get out of the Mews Sale Contract and Scheme at a cost that would justify breach of that agreement. That, however, is a commercial rather than a legal consideration. As such, WRVM's contention that the Heads of Agreement or the later agreements never came into effect due to the non-fulfilment of a condition precedent is rejected.


case_title: Manks v Whiteley [1912] 1 Ch 735


case_text: WRVM contends that the Heads of Agreement is not enforceable as a contract for want of intention to create legal relations. WRVM contends that it is a document by which the parties have done no more than record a stage in their negotiations with no intention to be bound by it: Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360-361. Alternatively, WRVM contends that if the document is not wanting for intention, it is insufficiently certain in its terms to be enforceable as a contract. In support of the latter submission, WRVM identified a number of respects in which it submitted the document was insufficiently certain in its terms. WRVM's primary complaint was that there was no indication as to who were the parties to the joint venture. 25 For the sake of completeness, it is appropriate to record at this stage that WRVM contends that even if the Heads of Agreement is enforceable as a contract: (1) it was replaced by two later agreements a Development Agreement (see [43] below) and a Second Development Agreement (see [47] below); and (2) even if the amounts identified in [8] are payable under the Heads of Agreement or Development Agreements, none of the amounts is secured by the AVS mortgage or the AVS charge. 26 Notwithstanding WRVM's contentions in this litigation that it was not contractually bound by the Heads of Agreement, WRVM took steps to satisfy the obligations stipulated in the Heads of Agreement. On 24 or 25 May 2005 (after execution of the Heads of Agreement), WRVM entered into the AVS Facility Agreement. Under the AVS Facility Agreement, AVS agreed to provide to WRVM what was described as the "Tranche 1 Loan" ($1 million) and the "Tranche 2 Loan" ($3 million): cl 2.1. The Facility Limit was $4 million: sched 1. Clause 3 of the AVS Facility Agreement provided that: (1) [WRVM] must use part of the Tranche 1 Advance to repay [the] principal owing to Westpac under the Westpac Facility ... (2) [WRVM] must use all of the Tranche 2 Advance to repay the then remaining proportion of moneys owing to Westpac under the Westpac Facility and / or to fully discharge any existing encumbrances over the Land. 87 As noted previously, WRVM contends that the Heads of Agreement is not enforceable as a contract for want of intention to create legal relations. WRVM contends that it is a document by which the parties did no more than record a stage in their negotiations with no intention to be bound by it: Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360-361. Alternatively, WRVM contends that if the document is not wanting for intention, it is insufficiently certain in its terms to be enforceable as a contract. 88 The simplest answer to any questions about the validity or enforceability of the Heads of Agreement is that those questions need not be answered because cl 1 of the Development Agreement terminated that agreement. Accordingly, the parties agree that no money can be owing under the Heads of Agreement. However, because the same arguments are put by WRVM against each of the three agreements, it is convenient to address them together. 89 WRVM identified a number of respects in which it submitted that the agreements were insufficiently certain in their terms including: 1) the identity of the contracting parties was not known but a matter for further negotiation; 2) although the agreement was in relation to the development of land, there was no agreement as to what the proposed development would be; 3) the identity of the party on whom obligations were imposed was not certain; 4) although each agreement provided for the appointment of a manager who was entitled to substantial benefits, no corresponding obligations were imposed on the manager. WRVM identified a number of matters which it will be necessary to consider in further detail below.


case_title: Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80


case_title: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436


case_text: As the Western Australian Court of Appeal recently noted, it is trite to say that a contract can fail for uncertainty if it is missing an essential term (a typical example being price): Uranium Equities Ltd v Fewster [2008] WASCA 33 at [257] . More useful is what the Court in Uranium Equities went on to say about essential terms in the uncertainty context (at [257]): We have said what is meant by the word "essential" in this context. When dealing with the question of contractual intention, we have expressed opinions on the question whether or not terms left over for future negotiation were essential. We have concluded that, although some of the matters left over were indicative of a lack of intention to be bound, they were not such as to lead to a finding that, if the requisite intention was present, the contract failed for lack of certainty. As Lloyd LJ said in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601, 619 there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. He went on to say that it "happens every day where parties enter into so-called 'heads of agreement'". While many of the matters left over in this case were important, none seems to us to have been essential to the efficacy of the alleged agreement, in the sense that the agreement could not be enforced without it. 95 I consider this case to be of the kind referred to by Lloyd LJ. Here we have a heads of agreement in which many matters of import, including the precise nature of the development, were left to be agreed later. In my view, however, the lack of a project definition is not essential to the efficacy of the agreement in the sense of its enforceability. Regardless of the precise nature of the development project, it is clear that the agreements contemplate at least some effort or work toward development however defined. That is to say, the development work contemplated in the agreements, at least initially, is the work required to put together a proper development proposal, including financing, whether for the building of a golf course, a residential development, or otherwise. That AVS or its nominee was to undertake such work (with the aid of WRVM's representative) is evident from the project management and project representative provisions in cl 3, including the retainer provision requiring a payment of $10,000 per month to AVS or its nominee.


case_text: It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. Because of their immediate relevance, it is sufficient for present purposes to refer to observations I made in Rush v Commissioner of Police [2006] FCA 12 ; (2006) 229 ALR 383 at [6] - [7] : "Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subparas (a), (b) and (c) of that rule. Subpara (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level (see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ), the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one (see Hooper [96 FCR 1] at [39]). Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360 ( St George Bank ) (at [26]): ... '(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [13] , [14], [17] and [73].' ... While O 15 r 6 expressly contemplates 'fishing', it equally requires that each of the limiting conditions prescribed in subparas (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia Ltd v Transfield Pty Ltd (1999) 92 FCR 200; 164 ALR 330; [1999] FCA 886 at [5] ." 5 Rapid, as I understand it, has developed a system for the prefabrication of buildings and holds patent rights in respect of that system. In early 1998 the applicants sought from Rapid an agency to market Rapid's product in India. It would seem that a prospective purchaser would be required to construct a Rapid manufacturing plant to produce the product and the agency related to the sale of the plant itself. The terms of the agency were contained in the following letter from Rapid to Mr Kirsten of 11 May 1998: "Thank you for your letter of April 28 1998 in which you request to represent our company in India exclusively for up to December 31 1998. As I explained to you before, we are not prepared to give exclusive rights for countries, especially not as big as India. We are currently working closely with Sagric, who are currently also in India promoting our product whenever appropriate. Ernst, we are prepared to give you and Agim Khaled non exclusive rights to India until December 31 1998. As soon as you have identified an interested party, the name must be registered with us and that company will then automatically become exclusive for you to receive commission as soon as a contract has been fulfilled. (As long as RBS has not yet been dealing with that company or person before.) The commission RBS will pay is 5% of the total value of the Rapid manufacturing plant plus 10% of the yearly royalty stream. It is important that Agim Khaled meets with us before he starts marketing in India. We must discuss his approach, give him some product knowledge and show him the plant and some projects first. Please consider the above and let me know if you want to proceed on that basis." (Emphasis added.) 6 To anticipate matters, an attempt was later made in 2001 to vary the registration requirement. This was resisted. I would also note that the applicants propose to contend that there is an ambiguity in what "registration" means in this context and that the contract was varied by conduct for at least a period in 1999. There is evidence, though, of Rapid being notified in writing of the names of "interested parties".


case_text: This leads to the second of the issues on which the TP Act claim is premised. As the right of an agent to receive commission from a principal rests on contract express or implied: cf L J Hooker Ltd v W J Adams Estates Pty Ltd [1977] HCA 13 ; (1977) 138 CLR 52 at 66; it is necessary both to ascertain the terms of the agency contract and to construe them in their setting. 41 Irrespective of whether the agency was exclusive or non-exclusive (it was each of these at different times), there can in my view be little doubt that on the material before me (i) it authorised the applicants to act as Rapid's agents in the sale of Rapid plants in India; (ii) it required the applicants, as soon as they had identified an interested party, to register that name with Rapid "and that company will then automatically become exclusive for [the applicants]" as long as Rapid had not been dealing with that company or person before; (iii) Rapid was to pay commission of 5% of the total value of the plant plus 10% of the yearly royalty stream; (iv) the commission was payable "as soon as a contract has been fulfilled". 42 I am satisfied and I do not think that counsel for the respondents strongly suggests to the contrary that the term "registration" of itself, or in light of the course of dealing between the parties as revealed in the material before me, can reasonably be argued in this context to mean no more than that the applicants would make known to Rapid the name of interested parties they have identified.


case_outcome: referred to

case_text: It is not in issue that there is a connection with Western Australia in this proceeding. However, the fact that an applicant has selected a registry in which to commence the proceeding that is not wholly inappropriate will not give rise to any presumption against transfer of the proceeding. (cf: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 per Gleeson CJ, McHugh, Heydon JJ at [25], Gummow J at [72], Kirby J at [167]). 19 Counsel for the applicant conceded, properly, that the case really relates to the manufacture of products in South Australia and that if the question of where the proceeding should be commenced had been decided by weighing all issues, the balance would have fallen in favour of conducting the proceeding in South Australia. However, counsel submitted, transactions of wider geographic import arose out of the events in South Australia and, therefore, this registry was as well placed as any to deal with the litigation. 20 The applicant also contended that a provision in the Heads of Agreement added weight to that submission. In the Heads of Agreement it was provided that in the event of a dispute between the parties under that agreement "the law governing these Heads of Agreement shall be the law of the State of Western Australia and the parties submit to the exclusive jurisdiction of the Courts of that state". The Collaboration Agreement on the other hand provided that that agreement was to "be interpreted in accordance with the law of South Australia".


case_text: Furthermore, the applicant has recently changed its solicitors and is no longer represented by a small firm that carries on practise only in this State. The applicant has now instructed a firm which holds itself out as having a national presence. In affidavits filed in opposition to the respondents' application it was deposed on behalf of the applicant that "Gadens" represents "a joint venture of independent firms carrying on business under the same name, 'Gadens'". Whatever that may mean it may be concluded that any disadvantage that may have been inflicted upon the applicant if an order had been made for the proceeding to be transferred whilst it continued to be represented by Solomon Brothers is no longer a relevant consideration. (See: BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 6) [2002] FCA 807). Circumstances have forced the applicant to change its solicitors and it may be assumed that being able to instruct solicitors who carry on business under the name Gadens in South Australia will be as convenient for the applicant as instructing practitioners who carry on business under that name in Western Australia given that the instructions are to be provided by persons resident in South Australia. 26 In addition to the foregoing another important change in circumstances is the need for another docket judge to be assigned the matter and to take over management of the proceeding. Obviously that may as easily be a judge in the South Australia District Registry of the Court as a judge in this registry. 27 Another recent event in the matter is the resurrection of the respondents' motion for the provision of security for costs by the applicant. As alluded to earlier in these reasons, on the current material provided the applicant offers personal guarantees and indemnities from the directors of the applicant by way of security. The worth of these offers depends upon the net worth of the property of the directors situated in South Australia. If further security is provided by the applicant in that form there will be a continuing prospect that interlocutory proceedings may occur related to the sufficiency of the security. The appropriate place for consideration of that issue would be in the South Australia District Registry of the Court.


case_text: In their respective submissions both parties place some emphasis on the domicile of prospective witnesses likely to be called at trial. That, of course, is of some relevance in an application for transfer but it is unlikely to carry great weight when a determination is made as to which is the appropriate registry of the Court to have control of the management of preparation of the matter for trial, particularly if the matter is not advanced and interlocutory applications and mediation proceedings are yet to be considered. (See: Moltoni Corporation Pty Ltd v Adelaide Brighton Cement Ltd [2004] FCA 482).


case_text: In an application for transfer of a proceeding to another registry the principal consideration for the Court is what will best serve the interests of justice and fairness to the parties and meet the public interest in the efficient and timeous despatch of litigation. (See: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155). The application is not resolved by reference to the rules of common law that govern whether a chosen forum is the appropriate forum. This is a national court exercising a single jurisdiction and an application to transfer a proceeding to another registry is an internal matter for the Court for which provision has been made in the Rules. The considerations that are relevant to determining whether such an order should be made are not confined by the Rules and obviously they are broader in scope than those to be applied to decide a "forum non conveniens" application concerning competing jurisdictions. (See: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538).


case_text: It may be accepted that in usual circumstances such a belated application for transfer of a proceeding would be unlikely to succeed. In this case, however, events that have occurred justify consideration of the motion. (See: Shin Chin Distributors Pte Ltd v Parmalat Australia Ltd [2003] FCA 1629). 4 After filing the statement of claim the applicant was granted leave on four occasions to amend the pleading. The most recently amended statement of claim was filed on 20 May 2005. An amended defence and cross-claim by the respondents was filed on 23 January 2006. 5 It can be seen that since the commencement of the proceeding the time elapsed has been spent on the pleadings, in particular the statement of claim, and preparation of the matter for trial has not reached an advanced stage.


case_title: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538


case_text: Honour also referred to the fact that the director was to be a witness for the company and that there were difficulties in his position as a witness and in presenting evidence and making submissions (her Honour referred to Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [3] ). That difficulty does not exist in the present case because counsel will lead the evidence to be given by Mr Young. There is, however, some residual difficulty in the preparation and filing of affidavits to which I referred earlier. The case is also distinguishable on the same or a similar basis. In summary, I do not find any reason in the authorities to which I was referred and have discussed above to dissuade me from the view that leave should be granted.


case_text: 4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Checked-Out , Emmett J granted leave to the applicant to carry on the proceeding without a solicitor for the purpose of resisting certain motions for summary dismissal, and to be represented on the hearing of those motions by a named individual who was not a solicitor. However, his Honour declined to grant general leave for the company to carry on the proceeding without a solicitor, noting the complexity of the legal and factual issues involved as one reason militating against the grant of leave. The case is distinguishable on the same or a similar basis.


case_text: 4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. Finally, in Cytel Bennett J refused an application for leave under O 4 r 14(2). The applicant company sought leave to be represented by its sole director. Her Honour said that it was clear from the matters put by the director in submissions and the material that he had sent to her Honour's chambers, that he had no understanding of court procedure or of evidence. Her Honour was firmly of the view that if the director were to represent the applicant, the time taken to deal with evidence and submissions would be greatly extended.


case_text: 4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Silkearl , Allsop J (when a judge of this Court) refused an application for leave under O 4 r 14(2). The individual who wished to represent the applicant company was, with his wife, a director of the company. The case involved complex factual and legal issues. His Honour referred to the emotive language used by the individual concerned and the making of sweeping allegations of impropriety by him in correspondence with the respondent and its solicitors. I note in passing that this characteristic, which one often encounters in self-represented litigants, has been noticeably absent, so far as I am aware, in the dealings that Mr Young has had with ICM and its solicitors. In his case, the problem has not been one of lack of courtesy, but has been one of lack of knowledge of rules and procedures. The case is distinguishable on the same or a similar basis.


case_text: 4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Tobacco Control , Wilcox J granted Tobacco Control Coalition Inc leave under O 4 r 14(2) to carry on the proceeding without a solicitor but limited to preparation for, and attendance at, the hearing of certain motions which were fixed for hearing 12 days after the making of the order. The order was limited in point of time to the conclusion of the hearing of those motions. His Honour observed (at [7]) that if the matter went to a hearing on the merits it would involve extensive evidence and complex questions of law, and that it would be "most inappropriate for such an action to be litigated without the services of a solicitor". The present case will involve complex questions of law. Most of the evidence will be documentary, although apparently there will be some evidence as to one or two contested conversations. Tobacco Control is, nonetheless, distinguishable by reason of the factors listed in [27] above. In particular, there was in that case only one applicant the company. In the present case the proceeding will continue in so far as it is brought by Mr Young.


case_text: A decision or purported decision to cancel a visa under the Migration Act is a privative clause decision or purported privative clause decision within the meaning of s 474(3)(b) Migration Act . In this case, it is clear that the decision of the Tribunal, which reviewed and affirmed the decision of the Minister's delegate to cancel the applicant's visa under the Migration Act , was also a privative clause decision or purported privative clause decision. Accordingly, an appeal to the Federal Court from a decision of the Tribunal concerning such a decision does not lie within s 44 AAT Act , and is not competent (cf Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 and Boyes v Minister for Immigration and Citizenship [2007] FCA 505).


case_title: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163

case_text: I propose to consider in turn each of the five grounds raised by the applicant in his draft notice of appeal as well as the further ground raised at the hearing. In doing so, however, I note that the grounds of review raised by the applicant, while broad ranging, are only relevant in these proceedings in so far as they present the possibility of jurisdictional error on the part of the Tribunal in reaching its decision. A review of the factual findings of the Tribunal, or the weighing of facts by the Tribunal, has no place in such a review. As explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58 ; [(1995) 184 CLR 163] , if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (footnotes omitted)


case_text: In my view, the Tribunal hearing was fairly conducted, and on the basis of information both favourable and unfavourable to the applicant. From the applicant's description of the information in the prison reports he was unable to access (TS p 11 ll 12-38), it appears unlikely that it would have added to the case he put to the Tribunal. In such circumstances, it is not procedurally unfair for the Tribunal to make a decision in the absence of such material, without an adjournment to allow the applicant an opportunity to obtain it: EG & H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460. 52 As no ground of review raised by the applicant demonstrates jurisdictional error in the Tribunal's decision, the appropriate order is that the application be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 6 March 2008 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: A Wheatley Solicitor for the Respondent: Clayton Utz Date of Hearing: 26 February 2008 Date of Judgment: 6 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/251.html


case_title: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80


case_text: I also note the limited power of the Court to intervene in the exercise of a discretion of an administrative tribunal. As pointed out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned... (cf Gyles, Allsop and Buchanan JJ in Williams v Minister for Justice and Customs (2007) 239 ALR 689 at 695) 26 Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).


case_text: Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).


case_text: This ground of review challenges the weight given by the Tribunal to the best interests of one of the children. However, it is clear that the weight given by the Tribunal to evidence before it, both oral and documentary evidence, is a matter for the Tribunal as an incident of its role as the arbiter of fact: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 36 In this case the Tribunal clearly gave proper, genuine and realistic consideration to the best interests of the children. 37 No jurisdictional error is demonstrated by this ground of review. 38 While the issue raised by the applicant in this ground of review may be of some relevance to the risk of recidivism (in the absence of particulars it is not clear), this ground of review goes to the facts of the applicant's case before the Tribunal, and possibly the weight ascribed by the Tribunal to various factors in the course of its decision-making. For the reasons outlined in respect of Ground 1, it is not a competent ground of review in this Court. 39 As a general proposition it is important that a decision-maker has before it the best evidence on which to base a decision. The Tribunal is empowered by legislation to inform itself on any matter in such a manner as it thinks appropriate, and is not bound by the rules of evidence: s 33(1)(c) AAT Act . Further, the Tribunal is empowered by statute to obtain evidence by compulsion if necessary: s 40(1A) AAT Act .


case_text: I propose to consider in turn each of the five grounds raised by the applicant in his draft notice of appeal as well as the further ground raised at the hearing. In doing so, however, I note that the grounds of review raised by the applicant, while broad ranging, are only relevant in these proceedings in so far as they present the possibility of jurisdictional error on the part of the Tribunal in reaching its decision. A review of the factual findings of the Tribunal, or the weighing of facts by the Tribunal, has no place in such a review. As explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58 ; [(1995) 184 CLR 163] , if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (footnotes omitted) 26 Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).


case_text: First, it is possible that the relevant material could have assisted the applicant in his case before the Tribunal. However, as Gray J observed succinctly in Pham v Secretary Department of Employment and Workplace Relations [2007] FCA 2049 at [11] , the Tribunal is empowered to make its own decision on whatever material is before it at the time when it makes that decision. 45 Second, if the applicant had required further time to adduce evidence before the Tribunal, he should have sought an adjournment of his hearing before the Tribunal. In circumstances where a party before the Tribunal requires an adjournment in order to adduce evidence necessary to the conduct of its case, it is appropriate that the Tribunal entertain and give proper consideration to such an application. In this case, however, it does not appear that the applicant made an application for an adjournment. 46 I note that the applicant was not represented before the Tribunal. It is clear that it can be a daunting prospect for an applicant to represent himself in such circumstances, and his entitlement to seek an adjournment of the proceedings may not be apparent. However it does not appear that, at the Tribunal hearing, the applicant pressed his need for this unavailable material, or explained to the Tribunal why it was necessary to its decision. 47 Third, from his submissions at the hearing before me, it appears that, although the applicant had written to the Tribunal Member's associate to inform the Tribunal Member of the issue prior to the hearing, his indications to the Tribunal as to the importance of this material at the actual Tribunal hearing were equivocal (TS p 10 ll 35-37). As I noted earlier, the Tribunal is empowered by s 40(1A) AAT Act to obtain necessary information by compulsion if necessary. If the applicant had made known to the Tribunal the importance of the relevant information, it is possible that he could have made an application to the Tribunal for the information to be made available. In this case, however, he clearly did not. 48 Fourth, in this case it is clear that the Tribunal had explained to the applicant approximately one month before the hearing that he needed to prepare for the Tribunal hearing. The Tribunal member at [24]-[25] observed, in relation to the applicant's statement at the Tribunal hearing: [24] Consequently, his statement had been rather brief. It should be noted, however, that at the telephone directions hearing on 19 June 2007, I had stressed to Mr Rountree the importance of ensuring that all his witness statements were filed and served on time, and at the very latest in time to allow two clear business days to elapse before the first day set down for the hearing, otherwise the tribunal could not have regard to any document or information that he might seek to present in support of his case, pursuant to ss 500(6H) and (6J) of the Act. I also pointed out that the statement or statements could be handwritten and need not be in any particular form; what was essential was that he gave notice of the matters on which he intended to rely. The applicant thus had ample time to attend to the matter. [25] At the hearing I pointed out to the applicant, however, that he was free to rely on any information that he had previously supplied to the respondent, such as earlier written statements in the G documents, without infringing ss 500(6H) or (6J). 49 I note that, although the applicant claims that he was unable to put material favourable to him before the Tribunal, there appeared nothing to prevent him from adducing evidence from his partner, her children, or other supporters in time for the Tribunal hearing. 50 Finally, although the applicant sought to obtain material in the nature of prison reports in order to present what he describes as "a more balanced view" of his character to the Tribunal, from the applicant's description this material seems, at most, relevant to the issue of his recidivism. In this respect, however, it appears from the Tribunal's decision that there was already a considerable amount of information before the Tribunal in relation to the risk of recidivism to which the Tribunal had regard (at [77]-[79]). The Tribunal clearly took into consideration information favourable to the applicant, including his progress towards rehabilitation, his recovery from alcohol addition, and his commitment to his partner and her children (at [79]). I also note that the Tribunal was at pains, as demonstrated at [53]-[59] of the Reasons for Decision which I have set out earlier in this judgment, to acknowledge and consider the applicant's case, including his version of previous events relevant to his application. However the Tribunal was persuaded by other relevant factors detailed in the Reasons for Decision that the applicant was at low-medium risk of recidivism.


case_text: Nonetheless if the applicant's visa has been cancelled on the basis of a decision infected by jurisdictional error, the Court has jurisdiction to consider an application to have the decision quashed: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 9 In this case the applicant has not framed his application in terms of judicial review of the Tribunal's decision, or sought to have that decision quashed pursuant to s 39B Judiciary Act 1903 (Cth). However at the hearing the applicant applied for leave to have the errors of law raised in his draft notice of appeal deemed to be grounds for review. This application for leave was not opposed by the Minister and leave was granted. 10 The Tribunal identified the two issues in the application before it as: 1. Whether the applicant did not pass the character test in s 501(6)(a) because of his past and present criminal conduct and, if so 2. Whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the Minister to cancel the applicant's visa. 11 The background facts as found by the Tribunal may be summarised as follows: • The applicant was born in New Zealand in 1954 and first arrived in Australia in 1996. In New Zealand the applicant had accumulated a substantial criminal record. In all, he was sentenced to over 11 years imprisonment in New Zealand, not including sentences which were served concurrently. • On arrival in Australia the applicant was granted a special category visa class TY subclass 444. He did not, however, satisfy the requirements for an absorbed person visa under s 34(2) Migration Act . • His lengthy New South Wales criminal history commenced on 11 November 1997. On three separate occasions he has been sentenced to terms of imprisonment of 12 months or more. Nine of his more serious custodial sentences were confirmed on appeal and none appear to have been reversed or reduced. • On 6 June 2006 the applicant was convicted at Coffs Harbour District Court of the offence supplying a prohibited drug in an indictable quantity (not cannabis), for which he was sentenced to three years imprisonment with a non-parole period of 15 months. At the same time he was convicted of two counts of possessing a prohibited drug for which he was sentenced to six months imprisonment, to be served concurrently. • On 1 February 2007 the applicant was notified of the Minister's intention to consider cancelling the applicant's visa under s 501(2) Migration Act . After considering the applicant's response, the delegate of the Minister made the decision to cancel the applicant's visa on 23 May 2007. 12 The Tribunal noted that, at the hearing before it, the applicant had had no access to writing material at the Brisbane City Watchhouse, and that he had had little time to prepare a statement for transmission to the Tribunal and the respondent. However the Tribunal also noted that at earlier telephone directions the applicant had been informed of the importance of ensuring that all witness statements were filed and served on time (at [24]). 13 The Tribunal observed that under s 501(2) Migration Act , the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). It is clear that the Minister retains a discretion as to whether the relevant visa should be cancelled. 14 Section 501(6) provides that a person does not pass the character test if, inter alia : (a) the person has a substantial criminal record (as defined by subsection (7)); or ... (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or


case_outcome: related

case_text: On 23 May 2007 the applicant's visa was cancelled on character grounds by a delegate of the Minister under s 501(2) Migration Act . The applicant applied to the Administrative Appeals Tribunal ("the Tribunal") to review that decision. The Tribunal affirmed the decision of the Minister's delegate ( Rountree and Minister for Immigration and Citizenship [2007] AATA 1615). 3 The applicant has now filed an application for an extension of time to file and serve a notice of appeal from a decision of the Tribunal and a draft notice of appeal from a decision of the Tribunal. 4 At the hearing before me the applicant was present in Court, and self-represented. The respondent was represented by Ms Wheatley of counsel.


case_text: The Tribunal then considered whether to exercise its discretion not to cancel the applicant's visa under s 501(1) , and in light of Pt 2 of Direction No 21. The Tribunal noted that para 2.2 of Direction No 21 provided that a decision-maker should have regard to three primary considerations as set out in para 2.3, as well as a number of other considerations (for example, para 2.8). In summary, the Tribunal made the following findings: • In considering the first primary consideration, namely the need to protect the Australian community, the Tribunal took into account the nature of the Coffs Harbour offence, as well as several prior separate occasions when the applicant had received custodial terms of 12 months and several other shorter sentences of imprisonment for breaches of apprehended violence orders (at [75]). The Tribunal considered that there was a low to medium risk of recidivism in light of, inter alia , the applicant's "particularly long and sustained criminal record, both in Australia and New Zealand" (at [79]). • In considering the second primary consideration, namely the expectations of the Australian community, the Tribunal found that the community would expect that the visa of a person with such a sustained and serious record of criminal activity while in Australia should be cancelled, but at the same time it would be expected that the interests of the three children involved would be carefully considered. • In considering the third primary consideration, namely the best interests of the child, the Tribunal identified as relevant the decisions of the Full Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 and Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. The Tribunal considered the evidence before it and observed that: o it was notable that the applicant's partner, Ms Messina, gave no evidence in the proceedings o one might have expected to see at least some kind of written statement from the eldest child o although Ms Messina had written a letter to the department four months prior to the hearing concerning the relationship between the applicant and both herself and the children, the absence of more recent evidence did not assist the applicant's case in relation to the issue o nothing would prevent the children visiting the applicant in New Zealand, and they could maintain contact through email and webcam o the children have their own father in Queensland.


case_title: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133


case_text: I also note the limited power of the Court to intervene in the exercise of a discretion of an administrative tribunal. As pointed out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned... (cf Gyles, Allsop and Buchanan JJ in Williams v Minister for Justice and Customs (2007) 239 ALR 689 at 695)


case_text: The High Court (Dawson, McHugh and Gummow JJ, with Brennan CJ and Kirby J dissenting) in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ( Applicant A ) held that such fear would not constitute persecution for a Convention reason. 24 In Applicant A , the Tribunal had accepted as a matter of fact that coercive measures were used in the implementation of China's family planning policy, and that coercive measures ranged from forms of civil discrimination to fines and forced contraception, sterilisation and abortion: see at 251. The Tribunal defined the social group in question as " those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised ." 25 The majority in the High Court held that persons who oppose China's one child policy and feared sterilisation did not constitute a "particular social group", because the uniting feature was a fear of persecution. 26 Dawson J said in his reasons, at 243: In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention. 27 McHugh J said, at 269-270: If, as is probably the case, the Tribunal meant by "those who ... do not accept the limitations placed on them" those couples who believe that they should be able to have more than one child notwithstanding the government's policy, there is nothing to link the couples so as to create a perception that they constitute a particular social group. There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as "a particular social group" is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. 28 And Gummow J said, at 285: I would assume, for the purposes of the determination of this appeal, that the PRC has a "one child policy", infringement of which attracts, as a matter of governmental decision, the sanctions feared by the appellants. I assume therefore that there exists a policy which is being implemented in a fashion which engulfs a number of persons for whom the PRC is their country of nationality. On that footing, a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a "one child policy" are at risk of the application of a general law of conduct required by the state and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof. 29 The only distinguishing feature between Applicant A and the present case is the form of persecution feared, namely, the appellant in the present case fears compulsory abortion as opposed to compulsory sterilisation. 30 Gummow J said, at 286, that " ... the form the persecution takes should not 'be inserted into the definition of the social group .'" 31 Consistent with the judgment of the High Court in Applicant A , the Tribunal, while accepting that "the applicant has been badly persecuted in the past", concluded that the appellant had not pointed to any harm which would amount to persecution which she fears she will suffer for one or more of the five Convention reasons if she returns to China. 32 Similarly, before the Federal Magistrates Court, Scarlett FM records, in [29] of his Honour's reasons: Counsel for the Minister, Ms Sirtes, submitted that the Applicant, whilst she had made quite clear that she did not wish to return to China, had not demonstrated any jurisdictional error on the part of the Tribunal and submitted that the Applicant's unfortunate circumstances did not provide any ground for remitting her application to the Tribunal. 33 Scarlett FM held that Ground 2 of the appellant's appeal was " ... really a challenge to the Tribunal's factual findings ", and therefore no case of jurisdictional error on the part of the Tribunal had been made out. 34 This is not a challenge to a factual finding by the Tribunal. The Tribunal held, however, that mistreatment amounting to persecution for breach of the "one child" policy was not persecution because of membership of "a particular social group", and therefore the appellant did not fall within the definition of a refugee. 35 The legal position is plain. The appeal to this Court from the Federal Magistrates Court has to be dismissed with costs.


case_outcome: affirmed

case_text: The appellant applied to the Federal Magistrates Court on 20 June 2006, where she was unrepresented. Federal Magistrate Scarlett, in a judgment given ex tempore on 11 September 2008, dismissed the appellant's appeal to the Federal Magistrates Court: see SZMKY v Minister for Immigration and Citizenship & Anor [2008] FMCA 1338. 5 The appellant filed a Notice of Appeal to the Federal Court on 2 October 2008. 6 The appellant claimed, in her application for a protection visa and before the Tribunal, that she had been persecuted because of her violation of the "one-child" policy in force in China. She married her husband in 1988, and they had a child together in 1991, a daughter. Her husband wished to have a son, however, and she became pregnant again in 2002. Because a second birth was not permitted pursuant to the one-child policy, she had to hide in the homes of others to avoid officials. She said that she had been discovered in her seventh month of pregnancy by birth control officials and was detained and forced to have an abortion. Thereafter, she said that her house had been confiscated, that she had lost her employment, and, as a consequence of the forced abortion, her husband divorced her in 2003. She also claimed that the electricity and water supply were cut off to her home.


case_text: authorities establish that, where an application is made under s 439A(6) for an extension of time, the Court must strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders: see Mentha, In the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933 at [20] per Jacobson J and PCG Capital Management Limited, In the matter of PCG Capital Management Limited and Glen Brook Pty Limited [2008] FCA 508 at [16] per Emmett J.


case_title: PCG Capital Management Limited, In the matter of PCG Capital Management Limited and Glen Brook Pty Limited [2008] FCA 508


case_text: The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act . I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.