case_text: Ordinarily, the law takes no account of parts of a day, and the expression "commencing on" must mean commencing on either the first or the last moment of the day in question. In my opinion, the expression "commencing on" in s 52(4)(a) of the Bankruptcy Act means "commencing at the first moment on", and the period of 12 months commencing on the date of presentation of the petition in the present case, 26 April 2005, expired on 25 April 2006 at midnight between 25 and 26 April 2006: see Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285; Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 453 per Mason J, with whom McTiernan J agreed; Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527. Expressions referring to a certain period "from" or "before" or of the kind "within [a certain period] of" are different. In those cases, the starting day is excluded in the computation: see, for example, Re Butler; Ex parte Toohey's Ltd (1934) 34 SR (NSW) 277 ; Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638 ; and see s 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act ).


case_outcome: followed

case_text: The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll & Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.


case_title: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421


case_outcome: cited

case_title: Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638


case_text: His Honour proceeded to deal with the question of the lapsing of the petition and referred to Ms Menassa's affidavit evidence as to her oversight. He accepted her evidence. The learned Federal Magistrate referred to Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149 ; (2006) 154 FCR 554 in which a Full Court of this Court, while expressing some concern over the course of decision in this Court allowing the invocation of the slip rule retrospectively to extend the life of a bankruptcy petition, was unwilling to disturb that course of decision. 29 Driver FM considered that if the power to extend the life of the petition was available to him, it should be exercised. He referred to his orders of 11 April 2006 that Mr Snelgrove was to file and serve updated affidavits of search and debt no later than 26 April 2006 and that both parties were to file and serve further submissions no later than 26 April 2006. His Honour said (at [13]): The steps required of the parties were to be taken up to a date after the 12 month period elapsed. It would have made no sense at all to make the orders in those terms if the creditor's petition was not to be extended . Prima facie, the petitioning creditor has a good case for applying the slip rule on the basis that if the issue had been adverted to at the time either the petition would have been extended or different procedural orders would have been made. [my emphasis] The passage emphasised by me shows that Driver FM's understanding was that the date 26 April 2006 was a date after the petition had lapsed. Since the only other date in contention was 25 April 2006, his Honour's understanding must have been that the petition lapsed on that date and his Honour's reference to 25 April in the passage at [17] of his reasons set out at [31] below makes it clear that this was so (see the discussion of the present question at [43] below). 30 In relation to the question whether the Federal Magistrates Court had had the requisite power to apply the slip rule, Driver FM considered that O 35 r 7(3) of the FC Rules applied in the Federal Magistrates Court as if it were a rule of that Court pursuant to Schedule 3 to the Federal Magistrates Court Rules 2001 (Cth) (FMC Rules). Driver FM gave as a "second reason" why the Federal Magistrates Court had the requisite power, the fact that that Court shared coextensive jurisdiction with this Court in bankruptcy. His Honour also referred to s 43 of the Federal Magistrates Act 1999 (Cth). 31 Having concluded that O 35 r 7(3) of the FC Rules was available to him, Driver FM noted that Mr Roskell submitted that he would have resisted an extension of the life of the petition if application for it had been made before the expiration of the 12 month period. His Honour had no doubt that Mr Roskell would have done so, but said that the petition would nonetheless have been extended and that the matter would have proceeded in accordance with his other orders or that different procedural orders would have been made. His Honour said (at [17], [18]): 17. ... Having decided that I should await the decision of the High Court and then having decided that I should receive written submissions on the significance of the High Court's judgment within the period specified in the order, I am certain that if I had adverted to the issue at the time I would have extended the life of the petition on 11 April 2006. The issue did not occur to me at the time. Although the then solicitor for the petitioning creditor had been instructed to raise it, she neglected to do so. The issue can and now should be dealt with prior to the final expiry of the creditor's petition on 25 April this year. 18. I therefore order pursuant to order 35 rule 7(3) of the Federal Court Rules and s.52(5) of the Bankruptcy Act that the petition filed on 26 April 2005 be extended until 25 April 2007. [my emphasis] 32 Driver FM then said that on the basis that the petition was revived, there was no remaining impediment to the making of a sequestration order because he had dealt with the issue of the existence of the debt in his first judgment and had now dealt with the remaining issues. 33 Mr Roskell's amended notice of appeal set out eight grounds, of which only three related to the lapsing of the petition and the invocation of the slip rule to extend its life retrospectively. On the hearing of the appeal, Mr Roskell did not address those grounds. Rather, he addressed the underlying merits, although not by reference specifically to his grounds of appeal. 34 As noted earlier, Mr Roskell did not appeal against the judgment of Jacobson J. It is not open to me to revisit matters which, on a fair reading of their Honours' reasons, were decided against him in the earlier judgment of Driver FM and of Jacobson J. 35 Pursuant to a reference made under O 80 of the FC Rules, Mr David Ash of counsel has assisted by making written submissions on behalf of Mr Roskell. I gratefully acknowledge the considerable assistance Mr Ash has given to the Court. 36 The lapsing of the petition and Driver FM's reliance on the slip rule in O 35 r 7(3) of the FC Rules raised the following questions, by reference to which Mr Ash's submissions were structured: 1. Was O 35 r 7(3) of the Rules available to Driver FM? 2. If, "yes" to 1, was there an accidental slip or omission for the purposes of O 35 r 7(3)? 3. If "yes" to 1 and 2, did O 35 r 7(3) enable Driver FM to extend the life of the creditor's petition by an order made on 16 April 2007 with retrospective effect? 4. If "yes" to 1, 2 and 3, was it open to Driver FM to make the particular order that he made extending the life of the petition to 25 April 2007?


case_title: Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261


case_title: Komesaroff v Law Institute of Victoria [1997] FCA 965


case_title: Re Langridge; Ex parte Bennett, Carroll & Gibbons [1998] FCA 879


case_title: Matthews v Collett [2000] FCA 224


case_title: Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277


case_outcome: distinguished

case_text: AXA referred to Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1 ( Visy ), Finanzamt Groß-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 , and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49. With respect, I do not see that any of these cases have any bearing on the present issue. The latter two were concerned with "factoring arrangements" arising under the terms of foreign legislation and the Visy case was concerned with s 47 of the Trade Practices Act 1974 (Cth). 103 While the concept of economic activity is relevant to the cases Finanzamt Groß-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49 , to which AXA referred, those cases arose under foreign legislation. The concept of "economic activity" that arose in those cases is not relevant to the Act.


case_title: Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49


case_outcome: discussed

case_text: The nature of the Australian GST regime was explained in an early article by Professors G S Cooper and R J Vann, "Implementing the Goods and Services Tax" (1999) 21 Syd L Rev 337, and also by Hill J, with whom Stone and Allsop JJ agreed, in HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 ( HP Mercantile) at [10]-[21]. I discuss each of these is turn. 48 I recognise, as the parties pointed out, that the Act has been amended in various respects since the publication of this article. However, the article is useful in explaining in general terms some of the concepts in the legislation. 49 Professors Cooper and Vann give the following description and illustration of the GST regime of tax and credits (at 347-8): The operation of the invoice-based credit system is usually demonstrated by a simple numerical example, like that in Table 2 below, with three suppliers in a distribution chain (say a manufacturer, a wholesaler and a retailer). Supplier 1 supplies (sells) to supplier 2 for $100 before GST on which GST of $10 at a 10 per cent rate is charged. Assuming that the original supplier does not purchase inputs on which GST has been paid (which, even allowing that employee labour is untaxed, is more than a little improbable in the real world), there are no GST credits on the inputs used to make this supply, and so supplier 1 remits its net tax liability of $10. Supplier 2 then sells for $200 before GST and pays GST of $20 on the sale. Because supplier 2 purchased from supplier 1 and paid $110, including $10 GST for these inputs, there is a credit of $10 allowed against the output tax liability, which leaves a net tax payable by supplier 2 of $10. Similarly, for supplier 3 selling at $300, the GST on the sale is $30 and there is a GST credit of $20 relating to the purchase of inputs from supplier 2. When supplier 3 sells to a consumer, the price of $330 will include $30 of GST but the consumer is unable to claim tax credits and effectively bears the $30 GST out of the total purchase price of $330. Table 2 Manufacturer Supplier 1 Wholesaler Supplier 2 Retailer Supplier 3 1 Sale price before tax 100 200 300 2 Sale price after tax 110 220 330 3 GST on sale 10 20 30 4 GST credit on inputs (0) (10) (20) 5 Net tax payable 10 10 10 If this were all that the GST involved, it would be a relatively simple tax to operate, although requiring considerable record keeping by the suppliers. As with any tax, however, there are many complications. 54 Both parties called in aid certain passages from the judgment of Hill J in HP Mercantile . In that case, HP Mercantile Pty Ltd (the Trustee) was the trustee of The Recoveries Trust (the Trust). As trustee, the Trustee carried on an "enterprise". A question arose whether the Trustee should acquire a series of debts at a price which apparently was less than their face value. The Trustee paid for professional advice as to whether it should do so (due diligence services). Later, after it had acquired the debts, it paid for professional services connected with the recovery of them (debt collection services). The Trustee paid GST that was included in the amounts that it paid for both of the services mentioned, and claimed input tax credits in respect of that GST. 55 The Commissioner denied the full input credits claimed by the Trustee. The Administrative Appeals Tribunal was of the view that the Commissioner's assessments were correct so far as they disallowed the full input tax credits for the amounts paid in connection with the debt collection services. 56 The Trustee appealed to the Full Court from the Tribunal's decision so far as it related to the disallowance of the full input tax credits for the debt collection services. 58 In the course of his Honour's discussion of the statutory scheme and the relevant provisions of the Act, Hill J noted that the Australian GST is a value added tax, the genus of which is that there is ordinarily no cascading of tax and the tax payable by each supplier in a chain is only upon the value added by that supplier (at [13]). His Honour stated in relation to financial supplies (at [16]-[17]): [16] In terms of GST theory, it is generally accepted that there are certain kinds of activities where the basic system of output tax on supplies and input tax credits on acquisitions will not lead to taxation on the value added by each supplier in the chain. The most important example is said to be financial transactions of financial institutions such as, but not confined to, banks, because they constantly borrow and lend and turn over money in a way that amounts, such as interest charged, will not represent the real value added by the financial institutions. Indeed, as the explanatory memorandum distributed with the Bill which, as amended, later became the GST Act (the EM) says in Chapter 1 at [5.140]: "there is no readily agreed identifiable value for supplies consumed by customers of financial services". In such a case, it is the margin or imputed margin that is the real economic subject of the supply. There are other examples where this may be the case, one of which is the leasing of, or other dealings with, residential property (not being new residential property). [17] By way of what may be seen as a compromise for the difficulties of applying the normal system of value added taxation to financial supplies and other difficult cases, value added taxation design has created a form of supply which is referred to in Australia as an input taxed supply but which, in international value added tax parlance, is referred to as an "exempt supply". An input taxed or exempt supply (and financial supplies made by financial institutions will be the main example) will not, generally speaking, attract output tax, but the entity which makes financial supplies will, likewise, not obtain an input tax credit for the tax payable on acquisitions it makes in the course of its enterprise of making input taxed supplies. ... 59 At [21], Hill J observed that it was "perhaps, not unremarkable" that s 11-15 of the Act bears, in its structure, some similarity to the general business deduction provisions of the Australian income tax law, ie, s 51(1) of the Income Tax Assessment Act 1936 (Cth) and s 8-1 of the Income Tax Assessment Act 1997 (Cth). His Honour noted that in both the GST provision and the income tax provisions it is necessary first to satisfy a positive test, and that apportionment is called for where the positive test is only partly satisfied. In both cases also there are negative tests which exclude the allowance of a credit in the GST context or the allowance of a deduction in the income tax context. 60 His Honour discussed at length (at [34]ff) the relationship required by s 11 -15(2)(a) between the acquisition and the making of the supplies that would be input taxed. The parties before the Full Court appeared to accept that the relationship had to be "real" and "substantial" and not "trivial" (at [35]). 61 Since the relationship between both the due diligence services and the debt collection services on the one hand and the purchase of the debts on the other was direct, there was no question of an indirect relationship as there is in the present case. However, Hill J made the following pertinent observations relevant to the expression "relates to" (at [35]-[38]): [35] ...It was common ground that the words "relates to" are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found. So much appears from the various cases referred to by the Tribunal when discussing the meaning of these words: ... [36] That the relationship contemplated here might be indirect follows, probably from s 11 -15(5), which provides that an acquisition will not be treated as relating to supplies that are input taxed where the acquisition relates to making a financial supply which consists of a borrowing and the borrowing relates to the taxpayer making supplies that are not input taxed. Hence, input tax credits will not be disallowed if the acquisition which gives rise to them relates to the taxpayer making a borrowing but the borrowing is used by the taxpayer in making taxable or GST free supplies. In other words, s 11 -15(5) would appear to contemplate that an acquisition having an indirect connection with a financial supply would otherwise [fall] within s 11 -15(2)(a). [37] It follows, perhaps more clearly, as well from the requirement of apportionment to be found in the words "to the extent that" which indicate that an acquisition may relate to the making of supplies that are input taxed as well as supplies that are taxable, as would be the case with undifferentiated general overhead outgoings of an entity making both input taxed and taxable supplies (cf, Ronpibon Tin NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47 at 55-6). [38] It might be said, as indeed it is by the Trustee, that where the legislature intended to refer to an indirect connection in the GST Act, it did so. This can be seen for example in ss 60-20(1) and (2)(a) as well as s 38-190(2A). With respect, the mere fact that a particular subsection refers to relationships that are direct or indirect does not necessarily reveal that uses of the word "relation" in other subsections will be restricted to direct relationships. Whether that is the case will depend upon context: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 10, 15. 93 I think that my construction is consistent with the policy underlying behind the input taxed supply provisions (see [51] above and the comments of Hill J set out at [58] above). It seems to me that by deeming an actual acquisition of an interest mentioned in subreg (3) or (4) of reg 40-5.09 to be a financial supply and defining consideration so widely in s 9-15, the legislature intended to catch an investment of the present kind. In acquiring the units, NMLA added nothing of value on which GST could be assessed. 97 I note in passing that in HP Mercantile , which concerned an acquisition of a debt as part of a factoring arrangement (see [54]ff above), it seems to have been assumed by the parties and by the Court that the amount paid for the acquisition of the debts was consideration for the purposes of reg 40-5.09(a)(i) (although, as AXA points out, the consideration was apparently less than the face value of the debts and so "value" can also be seen to have passed to the deemed supplier (the actual acquirer) of those debts).. 1.2 AXA's subset argument 98 AXA also argues that input taxed supplies and GST-free supplies are subsets of taxable supplies. Accordingly, to be an input taxed supply, a supply must first satisfy the Act's definition of "taxable supply". The Commissioner disagrees and submits that input taxed supplies, GST-free supplies and taxable supplies are three separate categories of supply. 99 I set out s 9 - 5 's definition of "taxable supply" at [25] above. The proviso at the end of that section (beginning "However, ...") does not by its terms require that each of the categories "GST-free supply" and "input taxed supply" lie wholly within the category of "taxable supply". The proviso merely acknowledges the possibility that some taxable supplies may to some extent be GST-free supplies and/or input taxed supplies.


case_text: AXA referred to Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1 ( Visy ), Finanzamt Groß-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 , and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49. With respect, I do not see that any of these cases have any bearing on the present issue. The latter two were concerned with "factoring arrangements" arising under the terms of foreign legislation and the Visy case was concerned with s 47 of the Trade Practices Act 1974 (Cth).


case_outcome: referred to

case_title: Termination Change and Redundancy Case (1984) 8 IR 34

case_text: The provision of severance pay in industrial instruments may be traced back to the Termination Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115, in the Australian Conciliation and Arbitration Commission. Those decisions illustrate that severance pay is designed to compensate employees for loss of transferable employment credits, loss of security in employment, loss of seniority and the hardship associated with redundancy for longer serving and older employees. See especially 8 IR 34 at 72-75 and see also the Redundancy Case (2004) 129 IR 155 at [133] - [142]. Those decisions further stress that severance pay is not designed to compensate employees for a period of unemployment.


case_title: Termination Change and Redundancy Case (1984) 9 IR 115


case_title: Redundancy Case (2004) 129 IR 155


case_text: An AWA is an industrial instrument and a creature of statute. AWAs are "a species of agreement which derive their legal effect from the [Workplace Relations] Act": McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46 ; (2005) 142 FCR 105 at [25] . As an industrial instrument created by the Act, an AWA should be interpreted in the same way as one would interpret an award made by an industrial tribunal. One looks to the particular language of the provision in light of its context and purpose: see Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J, at [30] per Gummow, Hayne and Heydon JJ, at [66] per Kirby J, and at [129] and [130] per Callinan J.


case_outcome: applied

case_title: Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241


case_text: The Australian Industrial Relations Commission has discussed the meaning of "obtains acceptable alternative employment" in the context of the redundancy test case standard. In Clothing Trades Award 1982(1) (Derole Case) (1990) 140 IR 123, a Full Bench of the Australian Industrial Relations Commission referred to "obtains" at 127 and said: ...the creation of the legal relationship of master and servant [between the outgoing employer's employee and the incoming employer] depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce the new employment; there will usually...remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate. 13 The Full Bench went on at 127 to consider "obtain" in context to signify that: ...the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind. Later, at 128, the Full Bench said: The employer must be a strong, moving force towards the creation of the available opportunity. 14 In the relevant AWAs of the employee applicants, the applicable sub-clause refers to the employer being "able to arrange alternative employment." There is no material difference between obtaining alternative employment and being able to arrange it. If an employer who is about to make an employee redundant said to the employee, "I have obtained alternative employment for you" or said "I have been able to arrange alternative employment for you", the employee would understand the employer on each occasion to be saying that it has found another job for the employee. The employee may not choose to take up the job, but it must be one that is there for the taking if the employee chooses to take it.


case_text: Tribunal also sought comment from the Appellant in the letter in respect of particular subjects arising from his evidence as given at the first hearing which might, so the Tribunal stated in its letter, form part of the reason for affirming the decision under review. Having regard to the exclusions from the obligation which falls on the Tribunal under s 424A of the Act, which are found in s 424A(3) , and the remarks given in the High Court's judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 17 and para 18, it may very well be the case that the Tribunal, in the despatch of this letter, exceeded what the Act strictly required of it. That is hardly a basis of criticism in respect of the proceedings in the Tribunal. See SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at para 30.


case_title: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68


case_text: The Court's discretion under s 601AH is very wide. The factors to be taken into account in the exercise of that discretion include the circumstances in which the company was de-registered, the purpose in seeking its re-registration and the likely prejudice to any person; Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 693. In this case the purpose of the order is to allow the company to take its place alongside the other asset vendors as a respondent and cross-claimant in the proceedings. As such, its fortunes would stand or fall with the other respondents and cross-claimants. The company's ability to contribute financially to any order made against the respondents would depend on its success in the cross-claim, however there is no suggestion that its position in defending the claims made by the applicants in the main proceeding or in pursuing the cross-claim would differ from that of the other respondents and cross-claimants. At this stage there has been no submission that the company's participation would be likely to add to the costs in the proceeding. 5 The applicants on the notice of motion have tendered a letter dated 17 March 2008 from ASIC which states that ASIC does not oppose the application on the following conditions: 1. The order sought for reinstatement is in terms of section 601AH(2) of the Corporations Act , requiring ASIC to reinstate the registration of the company; 2. The company (if ordered to be reinstated) continues in liquidation (subject to any order made by the Court in this regard) and a liquidator appointed; 3. The Court order is lodged with ASIC ... so that the company may be reinstated; 4. The Applicant pays ASIC's costs of $434 for consideration of this matter; 5. The applicant notifies ASIC upon conclusion of the winding up so that the company may be deregistered. 6 The letter from ASIC points out that if the company was re-registered it would return on ASIC's register to the status of External Administration. Clearly condition 2 above assumes that re-registration of the company would not automatically reinstate Mr Taylor as liquidator and therefore that it would be necessary to appoint a liquidator. 7 There are conflicting authorities as to whether a liquidator of a company who was in office at the time the company was de-registered is automatically reinstated to that office when the company is restored to the register. In Brownlie v TTPM Pty Ltd (2003) 21 ACLC 1204 , Hamilton J held that in such circumstances the liquidator was automatically reinstated and approved a statement to that effect made in A R Keay, McPherson: The Law of Company Liquidation 4 th ed, 1999 at 678; see also Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 697.


case_outcome: considered

case_text: There are conflicting authorities as to whether a liquidator of a company who was in office at the time the company was de-registered is automatically reinstated to that office when the company is restored to the register. In Brownlie v TTPM Pty Ltd (2003) 21 ACLC 1204 , Hamilton J held that in such circumstances the liquidator was automatically reinstated and approved a statement to that effect made in A R Keay, McPherson: The Law of Company Liquidation 4 th ed, 1999 at 678; see also Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 697.


case_text: The opposite conclusion was reached by Barrett J in Ramantanis v G & M Excavations [2003] NSWSC 250 ; (2004) 22 ACLC 22 and Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745. In Ramantanis his Honour noted that the statement in McPherson approved by Hamilton J appeared to have been made by reference to cases under earlier and somewhat different legislation to the present. His Honour noted that the specific provision in s 601AH(5) for the automatic reinstatement as director of a person who was a director of a company immediately before it was deregistered suggests that the deemed continuity of existence of the company is not sufficient to cause a director to resume his former position upon reinstatement of the registration. By analogy his Honour concluded that it followed that re-registration per se was also not sufficient to reinstate a liquidator. His Honour observed at paras [8] - [9],: As a matter of policy, however, a pre-existing and undischarged liquidator should resume office on reinstatement of registration. Section 601AH(3)(b) empowers the court to make "any order it considers appropriate", when making an order for reinstatement. I consider that that provides a suitable means of dealing with a situation where, as here, a liquidator was in office at the time of deregistration ... In view of the continuity that s 601AH(5) is intended to produce (which, in my view, entails continuity of that aspect of the company's characteristics which causes it to be in the course of winding up), the orders that the court makes should, in each case, put beyond doubt the ongoing tenure of the original liquidator. There are detailed provisions in the Act as to the resignation and replacement of liquidators. If a new liquidator is to be substituted, those provisions should be observed. 9 His Honour made orders for the reinstatement of registration and the continuation of the liquidator in office. In Donmastry Barrett J confirmed the view he had expressed in Ramantanis although, as the liquidator at the time of deregistration did not wish to continue in office and had expressly consented to another liquidator being appointed in his place, his Honour acceded to that request.


case_title: National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) (2001) 161 FLR 1

case_text: The "Caesar's wife" standard of impartiality and independence for liquidators is established beyond the need for authority, however, if support for the proposition is needed it is not necessary to go beyond Young J's comprehensive discussion of the issue in National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 161 FLR 1 at 29-32. Nevertheless, as Mr Stoljar accepted, the mere fact that a proposed liquidator's relationship with the company falls within one or more of the categories listed in s 532(c) does not preclude his or her appointment as the section itself provides that the Court has discretion in the matter. When asked what was the substance of the conflict that J P Morgan fears, Mr Stoljar was not able to put the matter higher than that his client has "an apprehension" that Mr Taylor would find it difficult to reconcile his various roles in the proceedings, particularly his role as liquidator of a company, a contingent creditor of which is his client. 15 In this case the application for reinstatement of the company has been brought for the limited purpose of this litigation. Although, once reinstated, the company exists for all purposes there is no reason to suspect that there is any purpose behind the application other than that stated. It seems to me that, as matters presently stand, the reinstatement of GC & Associates has the effect of preserving the respondents' position without substantive prejudice. The main proceeding here is estimated to be long and complicated and it seems unnecessary to add further expense and delay by requiring a liquidator other than Mr Taylor to be appointed because of a potential conflict that may, in substance, never eventuate. Should the proceeding result in the company being indebted to Mr Stoljar's client, any substantive prejudice can be addressed by an appropriate application to the Court at that stage. I should also note that J P Morgan may also reserve its position in relation to the matters mentioned in [10] above. 16 The applicants on the notice of motion have brought in short minutes of order providing for the re-instatement of GC & Associates Pty Ltd by ASIC; the subsequent appointment of Mr Taylor as liquidator of the company and all ancillary matters including any amendment of the cross-claim, the defence to the cross-claim and any application for security for costs. I shall make orders in accordance with those short minutes. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 25 March 2008 Counsel for the First and Second Applicants: J R Sackar QC, J Stoljar, J A C Potts, J K Taylor Solicitor for the First and Second Applicant: Clayton Utz Counsel for the First Fifth Respondents: L Foster SC, A P Spencer, T Leibman Solicitor for the First Fifth Respondents: Holding Redlich Date of Hearing: 20 March 2008 Date of Judgment: 25 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/433.html


case_title: Ramantanis v G & M Excavations [2003] NSWSC 250 ; (2004) 22 ACLC 22


case_text: Commissioner's notice of appeal stated that it raised four questions of law (paras (1) (4) inclusive) and eight grounds of appeal (paras (5) to (12) inclusive). The Commissioner's written outline of submissions, filed prior to the High Court of Australia handing down its judgment in Commissioner of Taxation v Word Investments Limited (2008) 236 CLR 204 on 3 December 2008, identified three issues raised by the appeal, namely, whether the Tribunal should have concluded that: (1) The Fund was 'established' for public charitable purposes within the meaning of s 50-5; (2) the Fund was applied for the purposes for which it was established within the meaning of s 50-60; and (3) the trustees of the Fund pursued its charitable purposes solely in Australia within the meaning of s 50-60(a). At the outset of the hearing of the appeal, indeed in the Commissioner's reply submissions filed prior to the hearing, senior counsel for the Commissioner, correctly in my view, abandoned the first issue in [3(1)] above (ground (5) of the notice of appeal) in the face of the reasons of the joint judgment in Word Investments . During the hearing of the appeal, senior counsel for the Commissioner informed me that he had been instructed, again correctly in my view, not to pursue the third issue in [3(3)] above (ground (6) of the notice of appeal). The premises for the Commissioner's new position were fourfold: (1) The Commissioner's acceptance that it was a fact that the amount paid to HELP International Inc was less than the amount of the gift by Mr Craik of $160,000; (2) the fungibility of money; (3) the provisions of s 50-75(1) of the 1997 Act; and (4) the approach taken in the Explanatory Memorandum to the 1997 Act precursor to these provisions: the Explanatory Memorandum to Taxation Laws Amendment Bill (No. 4) 1997 at 5.69 and 5.70. I hasten to add that the Commissioner's new position on this issue had nothing whatsoever to do with anything the High Court said in Word Investments. It follows from the foregoing that the only live issue on the appeal was whether the Tribunal erred in concluding that the Fund was applied for the purposes for which it was established within the meaning of s 50-60 (grounds (7) to (12) inclusive of the notice of appeal). Nevertheless, I was informed by senior counsel for the respondents that ground (12) had been abandoned. Senior counsel for the Commissioner did not expressly confirm this, but there was certainly no dissent and no submissions were advanced in support of the ground. The text of s 50-60 is quite clear. It requires that 'the fund is applied for the purposes for which it was established'. Subject to what is said at [31] below, the intention of the trustees of a fund, where the purpose for which an application of the whole or part of the fund is in question, is not relevant although the intention of the settlor and other promoters of the fund is undoubtedly relevant to the s 50-5 requirement that the fund be established for public charitable purposes (Item 1.5B). So much is implicit in what was said in the joint judgment in Word Investments at [70]: In s 50-50 it was thus not necessary to provide in terms that the assets of a charitable institution be 'applied for the purposes for which it was established'. On the other hand, s 50-60 applies to item 1.5A in the table in s 50-5 (a 'trust covered by para 50-80(1)(c)') and to item 1.5B (a 'fund established in Australia for public charitable purposes by will or instrument of trust (and not covered by item 1.5 or 1.5A)'). And s 50-57 applies to item 1.5 (a 'fund established for public charitable purposes by will before 1 July 1997'). Further, s 50-65 applies to item 1.6 (a 'fund established to enable scientific research to be conducted by or in conjunction with a public university or public hospital'). In context the expression 'fund' means a fund held by a trustee for charitable purposes. The trust covered by s 50-60, and the funds covered by ss 50-57, 50-60 and 50-65, continue to have their status as a trust or a fund even if the trustees are acting in breach of trust and not applying the assets to the relevant trust or fund purposes. Hence it was necessary to do in relation to ss 50-57, 50-60 and 50-65 what it was not necessary to do in relation to s 50-50, namely make express provision for loss of tax exemption where the trust or fund was not applied for the purposes for which it was established. As Word submitted, the difference in drafting flows from the fact that ss 50-57, 50-60 and 50-65 (unlike s 50-50) speak of funds or trusts which were 'established' for certain purposes, and the legislation requires not merely that they be established at the outset for those purposes, but also that their assets be applied for those purposes from time to time thereafter. Moreover, the text of s 50-60 requires that 'the fund is applied for the purposes for which it was established', not that it is 'substantially' or 'principally' applied for those purposes: cf., s 50-50(a), 'pursues its objectives principally in Australia' (emphasis added). If the legislature had intended that substantially applied for those purposes was sufficient, it would have been easy enough to say so. Where the purpose of an application of moneys of a fund is in question, the intention of the trustees or manager/administrator in applying the moneys may be relevant where there is an incidental or inadvertent misapplication of part of those moneys, but that is not this case. The assailed applications in this case were intentional applications; in at least two of the cases for significant sums of money representing substantial proportions of the Fund; and carried significant benefits for persons who were clearly not objects within the ambit of the purposes for which the Fund was established. With respect, such misapplications are not cured or exculpated by: (1) Oversight; (2) a lack of intention to benefit a person who was not an object within the ambit of the purposes for which the fund was established, but who was in fact benefited by an intentional act; (3) making good the detriment to the fund, particularly where there is no corresponding detriment to the person who benefited; or (4) any holistic characterisation of the conduct of the fund by, or the benevolence of, those administering it. Turning to the specific transactions that are assailed in the remaining live grounds of appeal: (1) The interest off-set account It is not in dispute that the substantive economic effect of this account, by reason that it was non-interest bearing, was to reduce the interest payable by the respondents to the National Bank on their home loan by an amount referrable to the balance of the interest off-set account for the time being and from time to time. The respondents, who were the trustees of the Fund, did not pay interest to the Fund, either concurrently with the effective reduction of their interest liability to the Bank or, it seems, at any time afterwards. Compensation to the Fund for the interest foregone was effected by and through the instrumentality of Mr Craik. But this does not, in my view, cure the misapplication of the Fund's funds to purposes other than purposes for which the Fund was established. (2) Mr Craik's trust account The same observation can be made of the fact, again not disputed, that no interest was paid to the Fund on the amounts Mr Craik held in his trust account for the Fund. Putting to one side the 'irregularities' in his recording of his trust account which made it impossible to ascertain what amount of money was available to answer the Fund's claims, such failure to pay interest and Mr Craik's application of trust account funds to payment of debit balances recorded in such accounts, even if small as found by the Tribunal '...over the whole 4 year period was less than $1000' ([82]) and, albeit late in the peace, compensated by Mr Craik, does not, in my view, cure or exculpate the intentional misapplication of the Fund's funds, even if Mr Craik did not intend to benefit himself. The Rocfish loan


case_text: can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred; in the present case, the requirements of s 50-5, Item 1.5B, and s 50-60. General or holistic examination or assessments of compliance with, or satisfaction of, those requirements 'directed towards an overall characterisation of the conduct of the fund' ([50] of the Tribunal's reasons) runs the risk of detracting from, rather than promoting, Parliament's purpose.


case_title: Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450


case_title: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311


case_outcome: approved

case_text: Bilfinger Berger Services (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2008) 176 IR 121 the Full Court of the Australian Industrial Relations Commission considered whether an employer's business comprised one or more business. At [3] the Full Bench observed that the evidence revealed that each of the five businesses conducted by the employer had separate resources, budgets, profits, employees, cost centres and billing centres. The respondent contended that the business of the employer was 'a multiple-business '. The Full Bench observed several obstacles with the respondent's submission. At [21] it stated: The first difficulty is that despite the fact that s 331 has been in the Act in one form or another since 1993, the construction has apparently never been adopted. Counsel were unable to point to a single instance of a multiple-business agreement applying to only one employer. The Full Bench continued at [22]-[23]: A further difficulty with the interpretation is that it gives rise to the possibility of a multiplicity of single businesses, and collective agreements, depending upon how an employer chooses to structure its operations. It would also introduce an element of unpredictability and caprice into the application of the agreement-making provisions depending upon the operating structure used by the employer. The interpretation would also give rise to a conflict between the operation of the multiple-business provisions and the definition of single business in s 322(1)(a). The terms "business, project or undertaking" in s 322(1)(a) should not be given a technical meaning. We think that the term "business" and perhaps also the term "undertaking" are capable of referring to the whole of the operations of one employer. While management jargon might support a narrower view, we think it is consistent with normal usage to describe the disparate operations of a single employer as that employer's business.


case_title: Gould v Vaggelas (1985) 157 CLR 215

case_text: Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 Lockhart, Gummow and French JJ rejected the submission that, in accordance with the observations of Wilson J in Gould v Vaggelas (1985) 157 CLR 215 at 236-238 the trial judge was bound to infer, in the absence of evidence to the contrary, that the appellants had been induced by the representations to enter into the lease in question. Their Honours said at 234: On the question of proof of inducement, the judgment of Wilson J in Gould v Vaggelas makes the point that a combination of factors may, if unanswered, lead to the conclusion that a person was induced by the representation of another to make the relevant decision.


case_text: contrary to this finding, the statements were misleading the Court would be required to consider the ' likely effect ' of such misleading statement. The onus of proof in establishing the employees would have been ' distracted ' by such statements or that the ' likely effect ' would have been that employees were misled must be established to the reasonable satisfaction of the Court: see Dixon CJ in Jones v Dunkel and Another [1959] HCA 8 ; (1959) 101 CLR 298 at 304-305, adopted by Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of New South Wales [1981] HCA 38 ; (1981) 148 CLR 62 at 66.


case_text: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd and Another; Gribbles Radiology Pty Ltd v Heath Services Union of Australia and Another [2005] HCA 9 ; (2005) 222 CLR 194 at [39] the High Court said: The "business" of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the "business" is a commercial enterprise) or other ends (if the activity is charitable or the "business" of government). In the case of a commercial enterprise, identifying the employer's "business" will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The "business" of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor.


case_text: this submission was not advanced to any significant degree, the Court observes that in National Union of Workers v Coles CDC Eastern Creek Pty Limited [2009] FCA 523 Graham J considered a submission to the same effect. His Honour at [50] dismissed the fact that certain employees engaged at a particular location would not have a ' reasonable opportunity to decide ' because of their voting power. His Honour found such claim lacked any substance. No authority has been quoted in support of such proposition, nor is there any evidence to support the submission that Luxottica had, as asserted by the AMWU, ' deliberately ' structured the proposed agreement to deny the laboratory employees a ' reasonable opportunity ' to decide to approve or to reject the proposed agreement. The claim that the vote of the laboratory employees would be completely irrelevant because they comprised a minority of the total number of employees is without evidential foundation. Pursuant to s 340(2)(b) of the Act an employee collective agreement may be made provided it is approved by a majority of employees. The vote of each member is of equal value and pursuant to s 340(2)(b)(i) of the Act the majority of those persons who vote will determine whether the agreement is to be made. In National Union of Workers v Coles CDC Graham J considered the prospect of a multiple-business at [44]. His Honour said: ...one might contemplate an employer which, within one company, carried on a media business, a pastoral business and a gambling business. Would those together constitute a single business, each being 'part of a single business' or, would they be three separate single businesses? Whilst it may be arguable that the three businesses were, for the purposes of the Act, a single business, with the answer to the question depending upon the unique facts of the given case, I am inclined to the view that there would be three separate 'single businesses' for the purposes of the Act. Mr Fretwell testified that the laboratory maintains a record of the costs of its operations including expenses, wages, rent, waste, electricity and other general costs. A record is also maintained relating to service and material charges made against a particular order received from a retail outlet. The material costs relate to the provision of spectacles and lenses which are ground, coated, edged and assembled to frames. The spreadsheet records all items of expenditure and notional income. Luxottica produced a budget forecast entitled ' Eyebiz Q2 Forecast ' which was a forecast and budget for labour costs and unit costs being the costs incurred in the processing of each order. The laboratory does not maintain any bank account and if cash is required for its operations it is supplied by a Luxottica retail cheque which is then cashed by the laboratory. No cash transactions take place between the retail outlets and the laboratory. Instead, an electronic record is maintained by the laboratory of the charges made for each order fulfilled by the laboratory.


case_text: submits that the Court would have no jurisdiction to make orders of the kind sought by the AMWU since the vote for the collective agreement has not been taken and nor has Luxottica taken any steps to submit the agreement to the Workplace Authority Director for approval pursuant to s 340 of the Act. In particular, the respondents relied upon the observations of Dawson J in Oil Basins Limited v The Commonwealth of Australia and Other [1993] HCA 60 ; (1993) 178 CLR 643 at 649. In view of the findings of the Court made above it is unnecessary for the Court to consider the question whether the Court would, if either of the AMWU's submissions had been upheld, have had power either under the Act or pursuant to the Federal Court of Australia Act to grant injunctive or declaratory relief. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 9 June 2009 Counsel for the Applicants: Mr Pearce Solicitor for the Applicants: Turner Freeman Lawyers Counsel for the First Respondent: Mr Moses SC with Mr Shariff Solicitor for the First Respondent: Deacons Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 1-2 June 2009 Date of Judgment: 9 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/608.html


case_title: Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229


case_title: Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd [2008] FCAFC 42 ; (2008) 166 FCR 562

case_text: Shop Distributive and Allied Employees' Association v Karellas Investments Pty Ltd [2008] FCAFC 42 ; (2008) 166 FCR 562 ( Karellas No. 2 ) the Full Court (Moore, Marshall and Tracey JJ) said at [54]: His Honour had regard to the likely effect of the information on employees. We consider that his Honour was correct to do so. An employee who is given false and misleading information that may affect his or her decision on whether to approve an agreement is, by the very provision of that information, denied a reasonable opportunity to decide whether to approve the agreement. That is, because there is information available to the employee which has the capacity to distract him or her on voting on the agreement and from considering its actual effect. A decision that is capable of being affected by false and misleading information is not a decision about approving the agreement, but a decision about extraneous matters not given effect to by the agreement. In applying such principle, it is necessary to consider the evidential onus upon the AMWU. That is, whether, on the balance of probabilities, the inference is established that the statements were inaccurate.


case_text: Green's statement contained at paragraph seven of his affidavit, reproduced at [19] above, is the only evidence that any employee might have been misled, assuming the statements to be wrong. The Court is mindful of the finding of Graham J at [49] in Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No. 2) (2007) 166 IR 51 (' Karellas No. 1 ') where his Honour said: In the absence of any evidence whatsoever as to the effect of any of the matters or alleged misinformation on the minds of any of the Karellas' employees, the likely effect of such alleged misinformation has to be considered. The Court is required to consider whether the statements are likely to have misled the employees. The Court could conclude, upon a review and comparison between the Award and the current or proposed agreement that the rates of pay presented by the Award are clearly less advantageous to the employees of Luxottica, and that if employees believed that Luxottica would revert to the Award, they would be likely to be misled into voting for the agreement proposed. However, the Court must have some evidence before it that the employees were aware that the proposed agreement was clearly more advantageous to the Award, that is, whether the employees were aware of the content of the Award. In Karellas No. 1 the information provided to the employees was sufficient to enable the Court to find that it was misleading and was likely to ' distract ' the employees. For example, the employees were told the agreement would provide a pay rise over the previous agreement when it did not. Graham J had before him all the evidence necessary to decide the ' likely effect ' of such misinformation upon the minds of the employees. It was self-evident that the misinformation was likely to have provided an incentive to vote for the agreement. Without similar evidence the Court is unable find the ' likely effect ' of the alleged misinformation, since any such finding would be wholly speculative. The evidence is inadequate to warrant a finding that the statements caused employees to be distracted in their voting.


case_text: short, the Court is, on the evidence, unable to find that ' there is information available to the employee which has the capacity to distract him or her on voting on the agreement and from considering its actual effect ' (see Karellas No 2 at [54]) without knowing whether the employees knew of the content of the Award. More than mere conjecture is required to establish the facts relied upon in order that the Court might grant relief: see TNT Management Pty Limited v Brooks (1979) 23 ALR 345 per Gibbs CJ at 350; West v Government Insurance Office of NSW at 66. Mr Green's affidavit merely makes reference to the Award without any indication of his knowledge of its contents. This vital aspect is left entirely to speculation. For the above reasons, the claim that the information provided by Luxottica to its employees was misleading thereby failing to provide them a ' reasonable opportunity to decide ' fails. Dilution of votes As a second basis for the claim that the employees were not afforded a ' reasonable opportunity ' it is submitted that the voting power of those at the laboratory would be overwhelmed by the votes of other employees engaged in other activities of Luxottica, namely the distribution warehouse and the retail outlets. That is, their vote would be diluted in consequence of the votes of the other employees.


case_title: West v Government Insurance Office of New South Wales [1981] HCA 38 ; (1981) 148 CLR 62


case_text: In the Court below the appellant advanced five grounds. Ground 1 contended that the Tribunal committed a jurisdictional error in so far as it made findings that were not open on the evidence before it. The appellant submitted that an applicant could not be expected to bring relevant evidence to prove his or her claim when leaving his or her country of origin. The appellant claimed that the Tribunal relied on country information provided by the country from which the appellant had escaped. The Federal Magistrate dismissed this ground. In doing so, the Federal Magistrate began by correctly observing that there exists no onus on the appellant to bring 'evidence in support of the circumstances for his departure from India': Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at [40] . The Federal Magistrate held that this was not the substance of the Tribunal's findings when the Tribunal said: The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his claimed membership of CPI(ML). He has no documentary evidence of his father's approach to the police following the applicant's claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. 7 Whilst there is no onus on the appellant to produce evidence to the Tribunal, the Federal Magistrate correctly observed that 'it is for the applicant to advance evidence or argument that he wishes to be taken into consideration in support of his claim.' The Tribunal's findings were open to it. No jurisdictional error can be established on this issue. 8 Ground 2 contended that the Tribunal erred in law by failing to ask a question that it was required to ask. That was whether the Indian authorities provided a standard of protection that was comparable with international standards. The Federal Magistrate correctly dismissed this ground. The learned Federal Magistrate noted that the real issue was whether the Tribunal addressed the test with respect to the issue of State protection. After citing the relevant passage from the Tribunal's reasons that included advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that State protection in India is generally provided to persons who feel persecuted due to political reasons, the Tribunal gave him an opportunity to respond to the DFAT advice. The appellant chose not to do so. The Tribunal found that Indian authorities provided adequate and effective State protection, and it was open to it to reach that conclusion. No jurisdictional error exists with respect to this issue.


case_title: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102

case_text: In respect of the issue of any possible stress or intimidation faced by the appellant, the Federal Magistrate said at [22], '[t]he need to ensure that a person affected by the decision of the Tribunal is accorded procedural fairness will often require that they be plainly confronted with the matters which bear adversely on their credit or which brings their account into question: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 ; [2003] FCA 872. ' The Federal Magistrate correctly dismissed this ground. 11 Ground 4 essentially claimed that the Tribunal did not address the issue of the appellant being kidnapped by his political opponents. The Federal Magistrate cited the segment of the Tribunal's decision dealing with this issue, and correctly dismissed this ground.


case_text: Ground 5 stated that the Tribunal, in making its determination, failed to record its decision in accordance with s 430 of the Migration Act 1958 (Cth). The ground contended that the Tribunal failed to record certain findings. The Federal Magistrate cited Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 which considers s 430. Yusuf holds that all that s 430 obliges the Tribunal to do is 'set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.' The learned Federal Magistrate correctly noted at [29] that 'there is no basis to suggest that the Tribunal has not complied with this section of the Act. Contrary to the particulars given to this ground, the Tribunal did not find that the applicant had been persecuted and this was not for a Convention reason. Rather the Tribunal did not accept that the applicant had ever experienced persecution, and found that given the availability of state protection his claimed fears of future harm was not well founded.' Thus, no jurisdictional error can be established in respect of this ground. 13 In his written submissions, the appellant has raised new arguments which were not considered below and which were not specified in his notice of appeal. 14 The appellant claimed that the Tribunal failed to consider whether a liberal Muslim, as such, was at risk of harm from radical Hindus. The appellant did not raise this matter in the Court below. He would not ordinarily be permitted to raise it on appeal as the appeal is from the reasons for judgment of the Federal Magistrate. The Federal Magistrate cannot be considered to have erred in failing to deal with a submission which was not advanced. I refuse leave for the submission to be advanced on appeal as it would be futile to do so. At the hearing before the Tribunal the appellant disavowed any claim to being a refugee based on his religion. He relied entirely on his and his father's political opinion.


case_text: Allphones also argued that what Mr Lloyd had said in his affidavit could not be read against it. In British Thomson-Houston Co Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 at 164-165 (see also at 170-171 per Atkin LJ) Pollock MR said that affidavits or documents which a party knowingly used as true in a judicial proceeding for the purpose of proving a particular fact are capable of being evidence against that party in subsequent proceedings to prove the same fact. He said that the principle applied in cases where the party adducing the document, whether an affidavit or deposition, knew of its contents beforehand and elected to put it forward in support of the party's case. He referred to what Crompton J had said in Richards v Morgan (1863) 4 B & S 641 at 659, namely: 'It must always be remembered that it is not the obtaining the affidavit or deposition but the making use of it as true with knowledge of the contents, which is the ground on which such evidence is supposed to be receivable.' Cockburn CJ in the same case said (4 B & S at 661): 'It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not. It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish.'


case_text: I am of opinion that the definition of 'proceeding' in the Federal Court of Australia Act does not affect the construction of 'proceeding' as that term is used in the Evidence Act . I am fortified in this view by the recognition that the Evidence Act itself is procedural in substance. It regulates how evidence is to be received and what is admissible. It does not itself create rights or liabilities. That is why the Act is careful to distinguish between various proceedings and to provide rules for the adducing of evidence in them. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49 ; (2003) 216 CLR 161 at 200 [122] and 205 [133] Hayne J (with whom Gleeson CJ and McHugh J agreed) said that the rules governing the admissibility of evidence fall under the expression 'practice and procedure'. Gummow J, with whom Kirby J agreed on this point, said that more substantive rights were involved: Labrador 216 CLR at 173 [33]. Kirby J referred to the assignment of the burden and identification of a standard of proof as being matters which can be of critical importance to the conduct of a trial. They could thereby partake of certain features of practice and procedure, but he also recognised that each was arguably something more than that because each affected, in a way, the very character of the trial. In that case the provisions of the Excise Act 1901 dealt with how matters might be proved: Labrador 216 CLR at 185 [76]. 32 Essentially, whether or not a previous representation amounts to an admission is a question of the law of evidence. That question has the character of a matter of practice or procedure. The Evidence Act regulates the way in which a proceeding is conducted. Of course, the Act applies a particular standard of proof depending on whether the proceedings are civil or criminal and in that way the application of the Act may affect substantive rights. But the substantive operation of the Act applies the practice and procedure apposite to regulate the adducing of evidence on each occasion on which it is tendered. The Act does not create any proceeding in a court. Rather, it provides a procedure to apply to or in an existing cause of action or matter for adducing evidence. 33 Proof of what occurred before Tamberlin J is capable of establishing a fact that occurred on an occasion outside this trial. The interlocutory proceeding was not this trial of the issues between the parties. For these reasons, I am of opinion that what occurred before Tamberlin J did not occur in the course of giving evidence in the proceeding in which it is now sought to tender Mr Lloyd's affidavit. It follows that Mr Lloyd's affidavit is capable of being a previous representation and thus capable of falling within the meaning of 'admission' as a matter of law.


case_text: It has long been the law that in civil cases a solicitor has implied authority to make admissions receivable by the Court against his or her client during the actual progress of litigation, either for the purposes of dispensing with proof at trial or in certain other respects. Thus formal admissions made by attorneys of both sides at a first trial could be relied on at the second trial after the first verdict had been set aside. Lord Denman CJ said that there was no doubt that the admissions were receivable at the second trial, albeit that they had been made before, and for the purposes of, the first trial: see Doe d. Wetherell v Bird (1835) 7 C & P 6 at 7. And in Langley v Earl of Oxford (1836) 5 LJ Exch 166 at 167, Lord Abinger CB held that an admission to be used at the trial of a cause, whenever it should take place, was admissible. It did not matter that the admission had been made before the first trial. Once made, it could be used at the second trial: see also Phipson, The Law of Evidence (8 th edition, 1942) at p 234.


case_text: Earlier their Honours had discussed the principles from which these statements were derived. The Court later applied them in Smith v Joyce [1954] HCA 15 ; (1954) 89 CLR 529 at 535-536. There Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said that it was a question of law whether a statement made by a party to an action is capable of constituting an admission on any relevant issue and that this, in general, must be determined by an examination of the words used: Smith 89 CLR at 535; see too Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 at 340-341 [68] - [71] per Gummow J.


case_text: Mansfield J briefly touched on the authority of counsel in separate proceedings to make admissions which affected that counsel's client in In the matter of Simionato Holdings Pty Limited; Commissioner of Taxation of the Commonwealth of Australia v Simionato Holdings Pty Limited [1997] FCA 125. He referred to what Franki J had earlier said in Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647 at 663, namely: 'In general, the passages sought to be tendered as admissions are statements made by counsel appearing in interlocutory matters and intended to be acted upon by the judge. I can see no reason why they should not be regarded as prima facie evidence against the client on whose behalf counsel was addressing the court.' Here, of course, Mr Lloyd's statements were not statements made by counsel addressing a court. Rather, they were statements put forward by him, on behalf of his client, in an affidavit tendered as evidence of the facts.


case_title: Langley v Earl of Oxford (1836) 5 LJ Exch 166


case_title: Lloyd v David Syme & Co Ltd [1986] AC 350 ; (1985) 3 NSWLR 728

case_text: Here, of course, Allphones, being a corporation, can only act by others. It can have no opinions because it has no mind, but it can have attributed to it a state of mind or knowledge based on what those whom it authorises to act on its behalf say or do: Lloyd v David Syme & Co Ltd [1986] AC 350 at 366; (1985) 3 NSWLR 728 at 736 per Lord Keith of Kinkel. For these reasons, I am of opinion that Mr Lloyd was a person whose evidence can be treated as being an admission by Allphones. 37 Next, Allphones argued that the quality of Mr Lloyd's evidence was such that it could not be treated as being an admission of anything. It pointed to the fact that Mr Lloyd did not state his source of knowledge or belief in the affidavit. This is a complaint which does not go to the capacity of the statements to be used as evidence. It merely may go to their weight, albeit that Mr Lloyd's evidence was put forward by Allphones to prove some of the very facts it now says should not be accepted from the same information. The question is whether the representations in pars 7 and 8 are capable of showing that before giving its notice of intention to terminate, Allphones had knowledge of the failure of Hoy Mobile to account for receipts from sales of the unlocked phones. As Allphones pointed out the introductory phrase in par 7 'in or around May 2006' is somewhat vague. It also argued that pars 7 and 8 of the affidavit are vague in relation to the extent of Allphones' knowledge and the circumstances in which it was obtained.


case_text: I am of opinion that these criticisms do not prevent their reception into evidence of the representations as admissions. In Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134 at 143 to 144 Rich, Dixon, Evatt and McTiernan JJ said: 'This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. In determining whether he intends to affirm or acknowledge the state of facts the party's knowledge or source of information may be immaterial or if he states that another person has told him of it and it appears that he has additional sources of information to the like effect it may be right to understand him as implying a belief in what he repeats or again a person who fails to contradict a statement concerning matters within his own knowledge may be understood as acquiescing in the statement if the circumstances are such as to make it unlikely that he'd allow an erroneous statement to pass unchallenged But although the meaning of his words or conduct may depend upon the state of his knowledge once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts. When admitted in evidence however its probative force must be determined by reference to the circumstances in which it's made and may depend all together upon the party's source of knowledge. If it appears that he had no knowledge or that although he had some means of knowledge he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own the probative force of the admission may be so small that a jury ought not be allowed to act upon it alone or in preference to opposing evidence.'


case_title: Prangley v Evans (1896) 17 LR (NSW) (L) 416

case_text: In Prangley v Evans (1896) 17 NSWLR 416 at 418, Owen J (with whom Simpson J, citing the above passage from Cockburn CJ in Richards 4 B & S at 661, and Cohen J agreed at 419-420) said: 'A client who uses an affidavit of a solicitor for a particular purpose must be taken to admit statements in the affidavit which are pertinent to the purpose for which the affidavit is prepared. But if there are statements in it that are irrelevant to the purpose for which it is prepared, the client is not bound by those statements.'


case_title: Richards v Morgan (1863) 4 B & S 641

case_text: Allphones also argued that what Mr Lloyd had said in his affidavit could not be read against it. In British Thomson-Houston Co Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 at 164-165 (see also at 170-171 per Atkin LJ) Pollock MR said that affidavits or documents which a party knowingly used as true in a judicial proceeding for the purpose of proving a particular fact are capable of being evidence against that party in subsequent proceedings to prove the same fact. He said that the principle applied in cases where the party adducing the document, whether an affidavit or deposition, knew of its contents beforehand and elected to put it forward in support of the party's case. He referred to what Crompton J had said in Richards v Morgan (1863) 4 B & S 641 at 659, namely: 'It must always be remembered that it is not the obtaining the affidavit or deposition but the making use of it as true with knowledge of the contents, which is the ground on which such evidence is supposed to be receivable.' Cockburn CJ in the same case said (4 B & S at 661): 'It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not. It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish.' 35 In Prangley v Evans (1896) 17 NSWLR 416 at 418, Owen J (with whom Simpson J, citing the above passage from Cockburn CJ in Richards 4 B & S at 661, and Cohen J agreed at 419-420) said: 'A client who uses an affidavit of a solicitor for a particular purpose must be taken to admit statements in the affidavit which are pertinent to the purpose for which the affidavit is prepared. But if there are statements in it that are irrelevant to the purpose for which it is prepared, the client is not bound by those statements.'


case_text: Allphones gave Hoy Mobile a notice of its intention to terminate the franchise agreement in late August 2006. Before that occurred, but after Allphones became aware of the allegation of unlocking of the telephones, Hoy Mobile alleges that Allphones acted in a way which affirmed the franchise agreement. Hoy Mobile alleges that Allphones required it to do certain things in accordance with the franchise agreement. Hoy Mobile relies on this affirmation, or election, to deny that Allphones was entitled to terminate the franchise agreement. It claimed that when Allphones sought to require Hoy Mobile to comply with requirements made by it earlier in June and July 2006 that conduct was inconsistent with Allphones' subsequent attempt to exercise a right to terminate: see Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 esp at 642 per Stephen J. 7 The issue here is whether Allphones knew in June or July 2006 both about the unlocking of the phones and the failure to account, on which it relied, to uphold its exercise of a right to terminate. It gave notice of its intention to exercise the right to terminate in late August 2006. 8 This matter has had a long history of interlocutory case management. During early 2007, a question arose as to whether some documents produced on discovery by Allphones were entitled to be withheld from production on the ground of legal professional privilege. An interlocutory hearing took place before Tamberlin J on 1 June 2007. At that hearing, Allphones read and relied upon a sworn affidavit by Mr Lloyd on 5 April 2007. He was a solicitor employed by its solicitors on the record. Mr Lloyd said that he deposed to the matters in the affidavit based on information and belief unless otherwise stated. But, relevantly, he did not identify the sources of the information and belief. Nonetheless, the affidavit was read in full before Tamberlin J.


case_title: Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647


case_title: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, Lindgren J, 24 May 1996)

case_text: The observation by Sackville J in Quanta Software 175 ALR at 543 was made in the context of dismissing the clearly untenable proposition that "documents relating only to quantum are necessarily irrelevant in determining whether an applicant has satisfied O 15A r 6(b)." This does not mean that the extent of the alleged infringement must always be relevant to every preliminary discovery application in which the applicant hopes for a greater or more wide-ranging form of relief. The notion of "reasonable sufficiency" articulated by Lindgren J in Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996) at 24 requires only that uncertainty about the available type and extent of relief be taken into account as one of the considerations relevant to the test in O 15A r 6(b), and that it not be treated as decisive.


case_text: It is settled law that the purpose of preliminary discovery is not to procure documents that will strengthen an applicant's decision to commence proceedings, but rather to furnish it with information which is reasonably necessary to enable that decision to be made: see Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [19] . In other words, once a prospective applicant has enough information to meet the threshold of "a bare pleadable case" ( C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [44] ), an order under O 15A r 6 is no longer appropriate. Simply because it may be difficult to ascertain the finer detail of those pleadings and assess with accuracy the likelihood of success does not mean the prospects of success in the litigation should be amplified for the prospective applicant through the effects of an invasive order for preliminary discovery. An applicant which is unsuccessful in its preliminary discovery application can always plead its case as best it can, acquire further information and documentation through the ordinary processes of discovery and issue of subpoenas, and then, if necessary, amend its pleadings to assert further or different breaches of its rights or abandon any grounds or causes of action no longer considered tenable.


case_text: A second consideration in relation to the Court's discretion is that Tibra could suffer undue prejudice in respect of the conduct of the anticipated proceedings. Preliminary discovery is an invasive process, and can be granted only where the three limbs of O 15A r 6 are made out. One reason for this is that the grant of preliminary discovery, particularly if the application is as broadly drawn as it is in this case, can place the prospective defendant in a position of disadvantage in respect of the conduct of future negotiations and proceedings: see C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1266 at [7] . Unlike full discovery, where both parties can ascertain and test the strength of the case put against them, preliminary discovery is unilateral, and the Court should be wary of creating an imbalance between the parties, since the purpose of preliminary discovery is not to furnish an applicant with information of such breadth or significance as to prejudice or unnecessarily curtail the respondent's prospects in the proceedings, but rather to ensure an applicant is able to identify and consider the documents and information necessary to commence proceedings. 40 I am of the view that the disclosure at this early stage of Tibra's source code, particularly in circumstances where Optiver already has sufficient information to decide whether to start litigation, would not be consistent with the purposes of O 15A r 6 and would create an inappropriate imbalance between Optiver and Tibra in respect of any litigation. 41 For the above reasons, I dismiss the application with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 December 2007 Counsel for the Applicant: Mr R Cobden SC and Mr P Flynn Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: Mr A Bannon SC and Mr A Fox Solicitor for the Respondent: McCabe Terrill Lawyers Date of Hearing: 30 November 2007 Date of Judgment: 21 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2065.html


case_text: I am not satisfied that information of such sensitivity to Tibra should be disclosed at this early stage. The authorities, taken together, stress that the confidentiality of the information sought in a preliminary discovery application is a relevant consideration in the discretion of the Court to grant the relief, but not an overriding consideration: Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241 at [110] ; Telstra Corporation Limited v Minister for Communications, Information, Technology and the Arts [2007] FCA 1331 at [31] - [32] . The Court has tended to permit applicants to erect suitable regimes to ensure the confidentiality of any material acquired by way of preliminary discovery. In this case, however, despite Optiver's proposal of a confidentiality regime, the exercise of the general discretion to refuse preliminary discovery is supported by two other considerations.


case_title: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591


case_text: Optiver stressed that the question for it to decide pursuant to O 15A r 6(b) is whether it should commence proceedings against Tibra to obtain the relief to which it asserts an entitlement , that is, relief for breach of confidence and copyright. Optiver also referred to the observation by Sackville J in Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 543 to the effect that an order under O 15A r 6 may be available to assess the extent of any alleged infringement of an applicant's rights. While these are correct statements of principle, I do not believe they are decisive in this case. 33 The observation by Sackville J in Quanta Software 175 ALR at 543 was made in the context of dismissing the clearly untenable proposition that "documents relating only to quantum are necessarily irrelevant in determining whether an applicant has satisfied O 15A r 6(b)." This does not mean that the extent of the alleged infringement must always be relevant to every preliminary discovery application in which the applicant hopes for a greater or more wide-ranging form of relief. The notion of "reasonable sufficiency" articulated by Lindgren J in Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996) at 24 requires only that uncertainty about the available type and extent of relief be taken into account as one of the considerations relevant to the test in O 15A r 6(b), and that it not be treated as decisive.


case_text: It follows that an applicant, upon obtaining enough information to plead its case, is no longer entitled to preliminary discovery. Delay may also be important: see Western Bulk Carriers (Aust) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520 at [25] . Once an applicant has obtained information sufficient to plead its case, or has unnecessarily delayed that acquisition, preliminary discovery will not be ordered, and the proceedings must commence. The threshold, once crossed, arrests the preliminary discovery process: see Ricegrowers Co-Operative Ltd & Seatide Pty Ltd v ABC Containerline NV & MED Containerline Antwerp NV (1996) 138 ALR 480 at 484.


case_text: The principles concerning whether an applicant for preliminary discovery has a "reasonable cause to believe" are well established, and are summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153-154. I do not propose to repeat those principles here. 23 In this case, Optiver has reasonable cause to believe that it may have a right to obtain relief from Tibra. The circumstances outlined above, when taken together, provide sufficient objective basis on which that belief is grounded. I am persuaded that Optiver's belief goes beyond mere conjecture or supposition; rather, Optiver has reasonably formed a conclusion that the circumstances surrounding the departure of its employees and the success of their subsequent business may depend to some degree on a breach of a duty of confidence owed to Optiver or a breach of its copyright. 24 It is important to stress that the above view does not mean that Optiver's belief is correctly held, in the sense that it is likely to be vindicated in the proceedings. The evidence presently before the Court does not, and need not, go so far as to establish a prima facie case or crystallise a successful cause of action. Under O 15A r 6(a), Optiver's evidence need only establish a tenable objective basis for its belief, which it has done. Accordingly, while Tibra's submissions regarding the shortcomings in Optiver's evidence are important, they are not sufficient to weaken the objective grounds on which Optiver asserts its belief to the extent that O 15A r 6(a) is not satisfied. Shortcomings will be relevant if and when the dispute progresses to hearing, at which stage detailed evidence can be fully adduced and weighed. 25 Although the parties disagreed whether Optiver had made all reasonable inquiries before bringing this application, in my view, O 15A r 6(b) is determinative in this case because it prohibits the Court exercising its discretion to grant preliminary discovery where the applicant has sufficient information to enable it to decide whether to commence proceedings to obtain the relief referred to in O 15A r 6(a). 26 I am persuaded that Optiver is equipped with sufficient information to decide whether to commence proceedings to obtain at least some of the relief which it submits may be available to it.


case_title: Telstra Corporation Limited v Minister for Communications, Information, Technology and the Arts [2007] FCA 1331


case_title: Western Bulk Carriers (Aust) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520


case_text: The federal magistrate conveniently set out the relevant legislation in his reasons: see Xin v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1925 at [7] . For present purposes, the essential criterion for entitlement to the business visa is that set out in cl 845.215 of the Migration Regulations 1994 (Cth) ('the Regulations'), which provides: The total value of the net assets owned by the applicant, or by the applicant and the applicant's spouse together, in the main business or main businesses in Australia: (a) is; and (b) has been throughout the period of 12 months immediately preceding the making of the application; at least AUD100,000. 5 On the basis of the application for a business visa, the appellant nominated Quincy Development Pty Limited ('Quincy'), as the main business. 6 The Tribunal was satisfied that Quincy was a main business, and the first appellant had an "ownership interest" in Quincy. However the Tribunal found that the first appellant did not satisfy the criterion in cl 845.215. In applying the criterion in cl 845.215 the Tribunal identified the relevant period as being from 27 February 2002 to 27 February 2003, this being the "period of 12 months immediately preceding the making of the application".


case_outcome: related

case_title: Nelson v Comcare [2008] AATA 214

case_text: 19 March 2008, the Tribunal affirmed the two decisions made by the respondent dated 27 September 2006 and 2 May 2007 ( Nelson v Comcare [2008] AATA 214). The applicant appeals to this Court from that decision of the Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). An appeal under that section must be on a question of law. The applicant's Notice of Appeal raises four questions of law and advances several grounds in support of his contentions in respect of those questions of law. Despite the length of the Notice of Appeal, the applicant's appeal raises only one issue, namely, whether the Tribunal failed to address and make a determination concerning the applicant's contention that his underlying psychiatric condition was " aggravated " within the meaning of the definition of " disease " in s 4(1) of the Act by his employment with Centrelink. The applicant accepted that the above formulation of the matters which the applicant seeks to raise on appeal from the Tribunal captures the essence of the applicant's case on appeal. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.


case_text: applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).


case_text: was submitted on behalf of the applicant that an ailment will be aggravated within the meaning of those expressions in the definitions contained in s 4 of the Act if it becomes more severe or is hastened in some way. The terms aggravation and acceleration in the present context have been given their normal English meanings in judgments of this Court (see Casarotto v Australian Postal Commission [1989] FCA 116 ; (1989) 86 ALR 399 at 404 405 and Martin v Australian Postal Corporation [1999] FCA 655 at [22] [28]).


case_text: Tribunal then returned to the concept of " material contribution ". At this point in its reasons, it referred to and discussed the judgment of Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. The Tribunal then concluded its Reasons with the following (at [60]): After considering all the evidence, in particular the possible factors that may have contributed to the onset or aggravation of the Applicant's psychiatric condition, we find that the circumstances of the Applicant's employment with Centrelink did not substantially contribute to his disease. Mr Nelson is not entitled to compensation pursuant to section 14 of the Act. It follows that he is not entitled to compensation in respect of medical expenses under section 16, nor is he entitled to compensation for incapacity under sections 19 , 20 , 21 or 21A of the Act. The only places that the concept of " aggravation of an ailment " were mentioned at all in the Tribunal's Reasons was at [5] (when s 4 of the Act was extracted) and at [60]. In the present case, in order to make good the contention concerning aggravation of an existing ailment which the applicant submits was advanced to the Tribunal, the applicant would need to demonstrate that, at the time he commenced his employment with Centrelink, he was suffering an ailment within the relevant definition and that that ailment was aggravated (ie made more severe) by his employment by Centrelink or that the aggravation was contributed to in a material degree by his employment by Centrelink. The notion of material contribution was explained by Finn J in Sahu-Khan [2007] FCA 15 ; 156 FCR 536. In that case, his Honour concluded that, in order to assess whether the aggravation of an ailment was contributed to in a material degree by the employee's employment, the Court was obliged to evaluate all relevant contributing factors in order to determine whether the employment made a contribution which was more than a mere contributing factor. His Honour described the exercise as a matter of fact and degree ( Sahu-Khan [2007] FCA 15 ; 156 FCR 536 at [16] (p 542 543)). The fundamental premise of the applicant's argument is that the Tribunal simply failed to address his case based upon alleged aggravation of an existing ailment (viz his underlying psychiatric condition). The Tribunal described the applicant's complaint at [1] of its Reasons as a complaint to the effect that his psychological condition was sustained because of his employment. That language tends to suggest that the Tribunal regarded the applicant's case as being confined to a case based upon the contention that he sustained an ailment as an employee of Centrelink, being an ailment that was contributed to in a material degree by Centrelink. The terms of the general formulation of the issue in [1] of the Tribunal's Reasons tend to suggest that the Tribunal did not regard aggravation of an existing ailment as being an alternative basis for the applicant's claims before it.