case_text: There is no doubt that in most areas of the law, where rights or liabilities depend on something having been caused by a particular event or circumstance, it is sufficient if the latter is a cause of the former, notwithstanding that there may be other, perhaps more important, causes. The case cited by Mr Read, Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410 , a common law negligence case, is one example of this. Other examples are I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 (damages under the Trade Practices Act 1974 (Cth)) and Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 (fraudulent misrepresentation). It may safely be assumed that the same rule would apply to compensation claims under the 1930 Act.


case_outcome: cited

case_text: Whether a question of law is raised by an appeal from the Tribunal is itself a question of law. The leading authority is the judgment of Mason J, with whom Gibbs, Stephen and Aickin JJ agreed, in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7. His Honour there stated the rule in these terms: the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. However, Mason J went on to qualify that statement by pointing out that when a statute uses words according to their "common understanding", and the question is whether the facts as found fall within such words, the question is one of fact. The example his Honour cited was the decision of the House of Lords in Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 where the question raised by the applicable statute was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that the behaviour was insulting the question was one of fact.


case_title: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109


case_text: The arguments must be considered in the light of a long line of cases, endorsed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, which make it clear that the reasons of an administrative decision-maker such as the Tribunal in the present case are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 50 Mr Read argued, with particular reference to the passage in the Tribunal's reasons at [175] commencing "any continuing symptoms...", that the Tribunal only considered Mr Farnaby's symptoms at the time of the hearing and failed to consider his symptoms, and whether or not those symptoms indicated he suffered the mental injury PTSD, as at the time of his claim in January 2002. 51 The Tribunal plainly adverted to the fact that Mr Farnaby lodged his claim on or about 24 January 2002; see reasons at [25]. There is no ground for thinking that thereafter the Tribunal somehow overlooked or forgot that fact. The circumstances in which Mr Farnaby came to lodge his claim assumed some importance in the narrative of events. Shortly before the lodgement he meets Ms Nalder by chance and it is then that he "first gained knowledge that he may be suffering an injury or disease as a result of his employment": at [24]. This also prompts his first medical consultation about the matter, with Dr Welch.


case_title: Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410


case_outcome: followed

case_text: The operation of O 35A r 3(2)(c) was considered by Kiefel J in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427. Her Honour, at [44], held that the rule deems a respondent to have admitted the facts alleged in a statement of claim, but not to have conceded the entitlement to the relief sought. Order 11 r 13 of the Rules also has the effect of the owner and the vessel being deemed to have admitted the facts alleged in the statement of claim. 9 The power under O 35A r 3(2) is discretionary. In this instance, I have no hesitation in exercising that power in respect of the claim for judgment for a liquidated sum. The owner and the vessel have never disputed that the claimed sums were advanced and have not been repaid. There is now nothing to suggest that the owner or the vessel has any defence to the claim. Indeed, the owner at material times acknowledged its indebtedness to the plaintiff and to others. The calculation of interest to date has been made in accordance with the pleaded terms of the agreement and the mortgage (and which are both in evidence), and has been verified by affidavit. 11 Kiefel J in Dataline [2006] FCA 1427 expressed the issue pithily in the following terms at [57]: The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has. 12 Dataline [2006] FCA 1427 concerned alleged unconscionable conduct by a supplier of internet-related services contrary to s 51AC of the Trade Practices Act 1974 (Cth), and of misleading and deceptive conduct contrary to s 52 of that Act. Justice Kiefel made declaratory and injunctive orders, and imposed pecuniary penalties, under O 35A r 3(2)(c) of the Rules. The respondents had failed to comply with various interlocutory orders and their defence was struck out. 13 Justice Kiefel at [35]-[51] discussed the terms of O 35A of the Rules and their analogues in the various Supreme Court Rules for judgment in default of appearance or defence. I respectfully adopt her Honour's comments and conclusions. I do not need to repeat them. Her Honour concluded that O 35A r 3(2)(c) operates so that the allegations of fact in the statement of claim are taken to be admitted, so that the Court then has the power to grant such relief as it considers appropriate on the basis of those deemed admissions. Fairness in the conduct of litigation may require a defaulting respondent to be informed if the relief sought differs materially from that sought in the application, and for the respondent to be given an opportunity to respond to the claim for that more extensive or different relief. No such problem arises in this matter: the relief sought is that claimed in the application. Moreover, although the deemed admissions provide the basis for the relief proposed, her Honour considered that further affidavit evidence may be adduced to support the relief claimed, but not so as to alter the pleaded case: at [50]. 14 As the power in O 35 r 3(2)(c) is discretionary as to whether relief as sought should be granted, additional affidavit evidence to support the exercise of the discretion is in my view clearly admissible, subject to her Honour's qualification that it does not alter the pleaded case. 15 Considerations particular to granting declaratory relief under O 35 r 3(2)(c) were discussed by Kiefel J at [52]-[59]. Again, I respectfully adopt and agree with her Honour's views. In that case, her Honour at [59] said: It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 where justice to the plaintiff required it. The order however operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes (sic, constitutes) a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made ' upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court '. (original emphasis) 16 I have reached the view that I should make the declaratory order sought on the basis of the deemed admissions, and in the light of the additional material relied on by the plaintiff. I have had regard to the background to the action, the nature of the claim (as deemed to be admitted), the apparent strength of the plaintiff's claim, the opportunity of others who may be directly affected by the declaration to have participated in the action, and the interests of fairness to the plaintiff and to others. 17 I shall briefly explain my consideration of those matters.


case_text: The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.


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


case_title: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401


case_title: Termijtelen v Van Arkel [1974] 1 NSWLR 525


case_title: Myer Queenstown Garden Plaza Pty Ltd v City of Adelaide Port Adelaide (1975) 33 LGRA 70


case_title: Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955


case_text: If the applicant succeeds in this proceeding the applicant will not thereby be entitled to resume his employment. He will succeed only to the extent that he is entitled to have the impugned decision quashed and to have the matter remitted to the decision-maker to make a decision according to law. He cannot expect the Court to make the decision as to whether his employment should have been terminated. The purpose of judicial review is to require the decision-maker to make his or her decision in accordance with the law: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36. The merits of the decision are for the person in whom the power to make the decision reposes: Attorney-General v Quin [1990] HCA 21 ; 170 CLR 1 at 36; Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 579-580. Therefore, even if the applicant is successful, no property rights will accrue to the applicant and therefore to his estate. If he succeeds he will be given the right to have a decision which affects him made according to law.


case_title: Affleck v Hammond [1912] 3 KB 162

case_text: Even so however, in Affleck v Hammond [1912] 3 KB 162 at 165, Vaughan Williams referred to these earnings as personal earnings. In that case, the Court of Appeal held that a bankrupt was not obliged to give security for costs in a suit for unpaid commission because the bankrupt was not a mere nominal plaintiff. The commission earnings were his "personal earnings" and did not pass to his trustee in bankruptcy. 81 In Geia v Palm Island Aboriginal Council 152 FLR 135 the bankrupt sued for damages for breach of contract or for moneys due and payable under a contract of employment. The bankrupt sought $109,692.30 in relation to a contract of employment which was for three years but which was terminated by the employer some weeks before the bankruptcy. The argument before the lower Court was whether the action was one falling within s 116(2)(g). That was rejected by the District Court Judge and not pursued in the Court of Appeal. In that court, the bankrupt argued that the cause of action was exempt under the "common law of bankruptcy". The critical issue in Geia v Palm Island Aboriginal Council 152 FLR 135 was explained (at 137): We were referred to Affleck v Hammond [1912] 3 KB 162 and to Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700 , in both of which Bailey v Thurston & Co Ltd was relied on; but each of those cases concerned a different point, which was whether the bankrupt could sue for "moneys which, by his personal effort, he had earned": see Thistlethwayte (at 702). We have mentioned above that it is conceded that no such moneys are in issue in this case, where the plaintiff says he has a right to damages, or to be paid at the agreed rate past the date when his employment was terminated.


case_title: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1


case_text: That would establish that he is impecunious but, as I have said, impecuniosity itself is not a bar to bringing a proceeding: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 ; James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 ; Knight v Beyond Properties Pty Ltd [2005] FCA 764.


case_outcome: applied

case_text: What is important for the purpose of this application is that the Act continues to recognise, as s 131 previously did, that the bankrupt's income is not part of the bankrupt's property except to the extent that a contribution is made. If it were otherwise, there would be no need for the Division 4B machinery because the trustee would be entitled to the bankrupt's income and wages. The Act continues to recognise the principle enunciated by Dixon J in Nette v Howarth [1935] HCA 22 ; 53 CLR 55 and recognises, as the law has since 1785, that income and earnings do not form part of the bankrupt's estate: Chippendall v Tomlinson (1785) L Co Bank L 428 per Lord Mansfield at 432; and 99 ER 900 at 902. 76 The right to seek a review of the respondent's decision to terminate the applicant's employment remains with the applicant. The trustee has no interest in seeking a review of that decision. The trustee, for example, could not ensure that if the decision were reversed that the applicant would resume employment. If the trustee was interested in the proceeding and brought the proceeding and the decision was quashed as the applicant seeks in this proceeding, there would be no property in the result which would be divisible among the applicant's creditors. The right to seek an order quashing the decision of the respondent to terminate the applicant's employment is not a right which can be exercised beneficially for the creditors, even in circumstances where the applicant seeks the further orders which may result in a sum of money being paid to him by way of compensation. Whether if the bankrupt received compensation that money would become after-acquired property for which he would have to account to his trustee does not need to be determined on this application: see Chippendall v Tomlinson (1785) L Co Bank L 428; 99 ER 900.


case_text: The respondents argued that the concept of property is a very broad one and has to be understood in light of the principle that the creditors are to have the benefit of "every beneficial interest which the bankrupt has, every species of right or which by any possibility of profit can be made": Cirillo v City Corp Australia [2004] SASC 293 at [78] (citing re Buckle (1969) 15 FLR 460 at 466). 24 The respondents contended that the applicant's proceeding falls within s 116(1)(b) and thus s 58 because the proceeding involves the capacity to exercise powers in respect of property as might have been exercised by the bankrupt for his own benefit. Thus it is that the proceeding, the respondents contended, vests in the trustee.


case_text: The purpose of the Bankruptcy Act is to ensure that all of the bankrupt's property, both real and personal at the time of the sequestration order and any property acquired by the bankrupt after the sequestration order, vests in the bankrupt's trustee in order that it is available to be divided among the bankrupt's creditors. At the same time as the property vests the bankrupt's creditors lose the right to recover their debts from the bankrupt in exchange for a right to prove their debts in the administration of the bankrupt's estate: s 58(3) ; Clyne v Deputy Commissioner of Taxation [1984] HCA 44 ; (1984) 154 CLR 589 at 594. The scheme is that the bankrupt's property will be distributed equally or rateably among the bankrupt's creditors: Cummings [1996] HCA 19 ; 185 CLR 124.


case_text: Section 60(4) is part of the scheme of the Act which excises from the bankrupt's property at the time of the sequestration order property that would otherwise be divisible among the bankrupt's creditors being any action for personal injury or wrong done to the bankrupt, the bankrupt's spouse or member of the family, or any action for the death of the bankrupt's spouse or member of the family by allowing the bankrupt to continue the action notwithstanding the sequestration order. An action of that kind must be an action in which the damages claimed are assessed by reference "to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property": Cox v Journeaux [1935] HCA 48 ; (1935) 52 CLR 713 at 721. 39 Section 116(2)(g) completes the excision from the bankrupt's estate by excluding from property divisible among the bankrupt's creditors the right to recover damages or compensation for actions of the kind in s 60(4) and specifically excludes any damages or compensation recovered for proceedings of that kind from the property of the bankrupt divisible among the bankrupt's creditors. 40 Section 60(4) and s 116(2)(g) must be understood as allowing the bankrupt to retain a right to bring action and a right to retain damages of property that would be otherwise property divisible among the bankrupt's creditors. In other words, but for s 60(4) and s 116(2)(g), an action to recover damages for personal injury or wrong done to the bankrupt or his or her family and for damages or compensation recovered would be property divisible among the bankrupt's creditors.


case_outcome: referred to

case_text: The applicant contended that in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 , the majority of the High Court held that the right to appeal against a money judgment was not property within the meaning of the definition in the Bankruptcy Act . At p 133 Brennan CJ, Gaudron and McHugh JJ said: A right to appeal may be a substantive right, but it is another question whether such a right has the character of property. Some rights created by statute can constitute property, but a right to appeal does not have the character of properly merely because it is the creature of statute. A chose in action may be the property of the person entitled to enforce it, but a liability to satisfy a judgment enforcing a chose in action is not property of the person against whom the judgment is entered. A liability is not property of the person liable. Nor is a right to appeal against a money judgment property of the judgment debtor. Nor does such a right to appeal answer the description of property divisible among creditors defined by s 116(1)(b) , namely, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit". (Footnotes omitted.) 30 The applicant submitted that the question on this application is whether the right to bring an application for judicial review and consequential relief in relation to a decision to terminate a bankrupt's employment is property within the meaning of s 5 of the Bankruptcy Act and, more particularly, is property divisible among the bankrupt's creditors within the meaning of s 116(1)(b) of that Act. 31 The applicant relied upon Cummings [1996] HCA 19 ; 185 CLR 124 and Griffiths v Civil Aviation Authority (1996) 67 FCR 301 , being a decision of the Full Court of this Court in which the Court held that a proceeding in the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act to challenge a decision of the Administrative Appeals Tribunal was not property divisible among the creditors of the appellant's estate vesting in the trustee of that estate. 35 The purpose of the Bankruptcy Act is to ensure that all of the bankrupt's property, both real and personal at the time of the sequestration order and any property acquired by the bankrupt after the sequestration order, vests in the bankrupt's trustee in order that it is available to be divided among the bankrupt's creditors. At the same time as the property vests the bankrupt's creditors lose the right to recover their debts from the bankrupt in exchange for a right to prove their debts in the administration of the bankrupt's estate: s 58(3) ; Clyne v Deputy Commissioner of Taxation [1984] HCA 44 ; (1984) 154 CLR 589 at 594. The scheme is that the bankrupt's property will be distributed equally or rateably among the bankrupt's creditors: Cummings [1996] HCA 19 ; 185 CLR 124.


case_text: They contended that the exceptions in s 116(2), and in particular s 116(2)(g), do not apply. That exception, it is contended, only applies where damages are to be assessed by reference to "the pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property": Fitzpatrick v Keelty [2008] FCA 35 at [39] - [47] and Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45.


case_text: The policy underlying the provision was explained by the Court of Appeal in Ex parte Vine; Re Wilson (1878) 8 Ch D 364 at 366-367 where James LJ (Cotton and Thesiger LJJ agreeing) said: The general principle always has been that, until a bankrupt has obtained his discharge, all his property is divisible among his creditors. But an exception was absolutely necessary in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his own living. On that principle the trustee could not sue for moneys due to the bankrupt in respect of his personal labour, and, if the bankrupt could sue for them only for the benefit of his trustee, he would really be without remedy. 43 In those circumstances, the kinds of action contemplated by s 60(4) and s 116(2)(g) do not assist in determining whether the right to bring this proceeding is property divisible among the bankrupt's creditors. This is not a proceeding of the kind contemplated by s 60(4) or s 116(2)(g). The question must be answered by reference to whether a proceeding of the kind brought by the applicant is property divisible among the bankrupt's creditors. That question must be addressed by reference to s 116(1). 44 This proceeding is for an order quashing the respondents' decision to terminate the applicant's employment by reason of a failure by the second respondent to accord the applicant procedural fairness and by the improper exercise of power.


case_outcome: discussed

case_text: In Federal Commissioner of Taxation v The Official Receiver [1956] HCA 24 ; (1956) 95 CLR 300 , the High Court was concerned with the precursor to s 131 of the Bankruptcy Act 1966 , viz s 101 of the Bankruptcy Act 1924-1950 (Cth) (the 1924 Bankruptcy Act ). In that case, the bankrupt was entitled to a sum of money from the Federal Commissioner of Taxation which represented an income refund for overpayment of taxation on income earned by the bankrupt. The income had been paid by the bankrupt's employer to the Federal Commissioner of Taxation under the Income Tax and Social Services Contribution Assessment Act 1936-1953 (Cth). The Official Receiver claimed to be entitled to the refund. 63 Section 91 of the 1924 Bankruptcy Act relevantly provided: the property of the bankrupt divisible among his creditors, and in this Act referred to as "the property of the bankrupt" shall ... subject to this Act ... include--(i) all property which belongs to or is vested in the bankrupt at the commencement of bankruptcy, or is acquired by or devolves on him before his discharge. 64 Section 101 relevantly provided: Subject to this Act, where a bankrupt is in receipt of pay, pension, salary, emoluments, profits, wages, earnings or income, the trustee shall receive for distribution amongst the creditors so much thereof as the Court, on the application of the trustee directs: Provided that this section shall not apply to any pay, pension, salary or wages which by any Act or State Act is made exempt from attachment or incapable of being assigned or charged.


case_title: Fitzpatrick v Keelty [2008] FCA 35


case_outcome: distinguished

case_text: In particular, the respondents relied upon a decision of the Court of Appeal in Queensland in Geia v Palm Island Aboriginal Council (1999) 152 FLR 135. In that case, the appellant, who was a bankrupt, sued the respondent for money said to be due under a contract of employment or for damages for breach of contract arising out of wrongful dismissal. The District Court Judge dismissed the proceeding on the ground that the cause of action had vested in the Official Trustee. The bankrupt appealed but the appeal was dismissed on the ground that an action for damages for wrongful dismissal (not including services actually rendered) vests in the Official Trustee. The Court of Appeal distinguished such claims from contracts for personal service which do not vest in the Official Trustee. 33 The applicant contended that the decision in Geia 152 FLR 135 was an action claiming damages on the basis of wrongful dismissal. The issue before the Court of Appeal, it was said, was not whether such an action was property within the meaning of the Act but whether the action could be said to be impliedly exempt by reason of "the common law of bankruptcy". 79 I also agree, with respect, with the decision of the Full Bench of the New South Wales Industrial Relations Commission in Perfection Dairies Pty Ltd v Finn [2006] NSW IR Comm 137. In that case, the appellant before the Commission had summarily dismissed the respondent from employment for wilful misconduct. A Commissioner had ordered the respondent be reinstated and that the appellant pay the respondent an amount which equated to the remuneration he would have received but for the dismissal. One of the issues raised on that appeal was whether the respondent, as an undischarged bankrupt, had standing to bring the application for reinstatement. The Commission, after referring to the sections of the Bankruptcy Act to which reference has been made in these reasons and after referring to the dicta of Cooper J in Griffiths v Civil Aviation Authority 67 FCR 301 , to which I have also made reference, and the judgment of the Queensland Court of Appeal in Geia v Palm Island Aboriginal Council 152 FLR 135, said at [38]-[39]: Employment is not usually referred to, or known as, property. Whatever legal "interest" an employee has in his or her employment, it is not a property interest. In any event, it seems clear from reference to the relevant statutory provisions and the case law that, although the expression "property", and cognate expressions such as "the property of the bankrupt" and "after acquired property", are to be construed in a very wide sense, the bankrupt's employment is not considered "property" for the purposes of the Bankruptcy Act . Indeed, all the pertinent indications in the statute and the case law are to the opposite effect. For example, there are a number of references in the Bankruptcy Act to "property divisible among the bankrupt's creditors" (see, for example, s 58(6) and the definition of "the property of the bankrupt" in s 5) ; it could not seriously be suggested that the bankrupt's employment, or the bankrupt's rights as to his or her employment could be divisible among the creditors. Indeed, the statute recognises that it is most desirable that the bankrupt be able to earn income during the course of the bankruptcy and also contemplates the likelihood that a bankrupt who was an employee prior to the bankruptcy would continue to be in employment. The references we have cited from division 4B of the statute, including the references to ss 139L and 139U are also in point. In particular, we do not detect in the scheme of the Australian statute any provision which would be at odds with the observation in the judgment of the English Court of Appeal in Ex part Vine ; re Wilson, where reference was made to the necessary exception to the property of the bankrupt being divisible amongst his creditors, "in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his living". 81 In Geia v Palm Island Aboriginal Council 152 FLR 135 the bankrupt sued for damages for breach of contract or for moneys due and payable under a contract of employment. The bankrupt sought $109,692.30 in relation to a contract of employment which was for three years but which was terminated by the employer some weeks before the bankruptcy. The argument before the lower Court was whether the action was one falling within s 116(2)(g). That was rejected by the District Court Judge and not pursued in the Court of Appeal. In that court, the bankrupt argued that the cause of action was exempt under the "common law of bankruptcy". The critical issue in Geia v Palm Island Aboriginal Council 152 FLR 135 was explained (at 137): We were referred to Affleck v Hammond [1912] 3 KB 162 and to Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700 , in both of which Bailey v Thurston & Co Ltd was relied on; but each of those cases concerned a different point, which was whether the bankrupt could sue for "moneys which, by his personal effort, he had earned": see Thistlethwayte (at 702). We have mentioned above that it is conceded that no such moneys are in issue in this case, where the plaintiff says he has a right to damages, or to be paid at the agreed rate past the date when his employment was terminated. 83 Geia v Palm Island Aboriginal Council 152 FLR 135 was a case about a claim for damages, not a case about a claim for loss of wages. As such, it does not address the issues raised in these reasons. 84 The application to dismiss or stay the applicant's proceeding on the ground that the applicant lacked standing is dismissed. 85 The respondents sought, if their first application was dismissed, security for costs.


case_text: The applicant relied upon Cummings [1996] HCA 19 ; 185 CLR 124 and Griffiths v Civil Aviation Authority (1996) 67 FCR 301 , being a decision of the Full Court of this Court in which the Court held that a proceeding in the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act to challenge a decision of the Administrative Appeals Tribunal was not property divisible among the creditors of the appellant's estate vesting in the trustee of that estate. 77 The holding that an application of this kind is not property of the bankrupt which vests in the trustee is consistent with the decision of the Full Court of this Court in Griffiths v Civil Aviation Authority 67 FCR 301 where the Full Court held that an appeal to the Federal Court on a question of law from the decision of the Administrative Appeals Tribunal in relation to conditions imposed upon a bankrupt on aviation licences was not property of the bankrupt which vested in the trustee. Cooper J said in that case at 325-326: There is a unity of object and purpose in the operation of ss 58, 60 and 116 of the Act if it is recognised that the consistent focus of attention is upon rights which the trustee can turn to advantage for the benefit of creditors or upon rights the exercise of which will adversely affect or delay the administration of the estate. It is these rights which fall within the definition of "property" in s 5 and the enforcement of which by action are stayed by s 60(2) upon a person becoming bankrupt. To interpret "property" for the purposes of s 5 in this way avoids the injustice of denying to the bankrupt the power to exercise a right in which the trustee has no interest and the exercise of which cannot operate adversely on the property of the bankrupt or the administration of the bankrupt's estate. The right of Mr Griffiths to appeal to this Court from the decision of the Tribunal and his right to appeal from the judgment of Kiefel J are such rights and did not vest in the Official Trustee upon acquisition by Mr Griffiths. Neither Mr Griffiths' appeal from the Tribunal to the original jurisdiction of this Court, nor his appeal from the order of Kiefel J to the Full Court is incompetent in consequence of his bankruptcy. 78 The right to sue for the bankrupt's earnings, wages or income does not vest in the trustee and therefore the right is exercisable by the applicant. 79 I also agree, with respect, with the decision of the Full Bench of the New South Wales Industrial Relations Commission in Perfection Dairies Pty Ltd v Finn [2006] NSW IR Comm 137. In that case, the appellant before the Commission had summarily dismissed the respondent from employment for wilful misconduct. A Commissioner had ordered the respondent be reinstated and that the appellant pay the respondent an amount which equated to the remuneration he would have received but for the dismissal. One of the issues raised on that appeal was whether the respondent, as an undischarged bankrupt, had standing to bring the application for reinstatement. The Commission, after referring to the sections of the Bankruptcy Act to which reference has been made in these reasons and after referring to the dicta of Cooper J in Griffiths v Civil Aviation Authority 67 FCR 301 , to which I have also made reference, and the judgment of the Queensland Court of Appeal in Geia v Palm Island Aboriginal Council 152 FLR 135, said at [38]-[39]: Employment is not usually referred to, or known as, property. Whatever legal "interest" an employee has in his or her employment, it is not a property interest. In any event, it seems clear from reference to the relevant statutory provisions and the case law that, although the expression "property", and cognate expressions such as "the property of the bankrupt" and "after acquired property", are to be construed in a very wide sense, the bankrupt's employment is not considered "property" for the purposes of the Bankruptcy Act . Indeed, all the pertinent indications in the statute and the case law are to the opposite effect. For example, there are a number of references in the Bankruptcy Act to "property divisible among the bankrupt's creditors" (see, for example, s 58(6) and the definition of "the property of the bankrupt" in s 5) ; it could not seriously be suggested that the bankrupt's employment, or the bankrupt's rights as to his or her employment could be divisible among the creditors. Indeed, the statute recognises that it is most desirable that the bankrupt be able to earn income during the course of the bankruptcy and also contemplates the likelihood that a bankrupt who was an employee prior to the bankruptcy would continue to be in employment. The references we have cited from division 4B of the statute, including the references to ss 139L and 139U are also in point. In particular, we do not detect in the scheme of the Australian statute any provision which would be at odds with the observation in the judgment of the English Court of Appeal in Ex part Vine ; re Wilson, where reference was made to the necessary exception to the property of the bankrupt being divisible amongst his creditors, "in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his living".


case_title: In re Roberts [1900] 1 QB 122

case_text: The English authorities and Australian authorities diverge in that the English authorities adopted the view that the bankrupt's earnings did form part of his estate "save only what is necessary for his support": In re Roberts [1900] 1 QB 122 at 129.


case_title: James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442


case_title: Knight v Beyond Properties Pty Ltd [2005] FCA 764


case_text: A bankrupt's personal earnings after bankruptcy or income do not vest in the bankrupt's trustee. They are not property of the bankrupt. In Nette v Howarth [1935] HCA 22 ; (1935) 53 CLR 55 at 65, Dixon J said, after referring to authorities in England and Australia: ... the rule long established in bankruptcy, [is] that the personal earnings of a bankrupt do not pass to his trustee except to the extent that they are not required for the support of himself and his family. 51 Prior to the enactment, the Bankruptcy Amendment Act 1991 (Cth) (which was assented to on 17 January 1992), s 131(1) and (2) of the Bankruptcy Act provided: 131. (1) Subject to this section, a bankrupt who is in receipt of income is entitled to retain it for his own benefit. (2) The Court may, upon the application of the trustee, order that all, or such part as the Court thinks fit, of the income of the bankrupt shall be paid to the trustee for the benefit of the bankrupt's creditors. 52 The scheme of the Act was to allow bankrupts to retain their income, after bankruptcy, for their own benefit unless the Court in the exercise of its discretion ordered that all or part be paid to the bankrupt's trustee. In those circumstances, unless an order were made under s 131(2) the bankrupt's income was not property of the bankrupt and not divisible among the bankrupt's creditors. 57 What is important for the purpose of this application is that the Act continues to recognise, as s 131 previously did, that the bankrupt's income is not part of the bankrupt's property except to the extent that a contribution is made. If it were otherwise, there would be no need for the Division 4B machinery because the trustee would be entitled to the bankrupt's income and wages. The Act continues to recognise the principle enunciated by Dixon J in Nette v Howarth [1935] HCA 22 ; 53 CLR 55 and recognises, as the law has since 1785, that income and earnings do not form part of the bankrupt's estate: Chippendall v Tomlinson (1785) L Co Bank L 428 per Lord Mansfield at 432; and 99 ER 900 at 902. 67 Williams J then referred to Dixon J's dicta in Nette v Howarth [1935] HCA 22 ; 53 CLR 55 cited above and said (at 315): These and other cases cited to us establish that the question whether any part and if so what part of the personal earnings of a bankrupt vests in the official receiver as after-acquired property is really academic. If the official receiver claims any part of these earnings, he must apply to the Bankruptcy Court for an order. He must intervene in this specific manner. In the absence of such an order the bankrupt is free to dispose of the whole of these earnings. 68 Fullagar J said (at 320): In the case of personal earnings after bankruptcy, I am of opinion that, whatever may be the position under the English Act, under the Australian Act the only way in which the trustee can effectively "intervene" is by making an application for an order under s. 101. 69 He then discussed the manner in which the Commissioner of Taxation received the sum and how the Commission became obliged to pay that sum to the bankrupt. He said (at 322): The right to receive this sum of ₤44 6s. 3d. really is a right to receive money which the bankrupt earned. How else did he acquire the right to payment of that sum? It is not the price of an article sold by him, or an instalment of the rent of a house let by him, or a dividend on shares owned by him. His right to payment arises because, and only because, he worked for a remuneration which is found, on a contingency which was contemplated throughout, not to have been paid to him in full. For these reasons I am of opinion that the sum in question does represent personal earnings of the bankrupt, and that the respondent has no right in respect of that sum unless he can obtain an order under s. 101 of the Bankruptcy Act .


case_title: Pearson v Naydler [1977] 3 All ER 531

case_text: The general rule is that where the applicant is a natural person he or she will not be required to provide security for costs merely because he or she is impecunious: Pearson v Naydler [1977] 3 All ER 531 at 533 per Megarrey VC. That said, however, it is necessary to have regard to the circumstances of the case generally to determine whether the case is an appropriate one for an order for security for costs. 88 The applicant is a bankrupt. After his bankruptcy he obtained employment with the first respondent and during the course of his bankruptcy his employment with the first respondent was terminated. 89 Although there is no direct evidence, having regard to the proceeding itself, it may be inferred that the applicant has not been employed since his employment was terminated on 16 May 2008.


case_text: The respondents also relied upon a decision of Madgwick J in Pelechowski v NSW Land and Housing Commission [2000] FCA 233. In that case, the applicant, who was a bankrupt, applied to the Industrial Relations Court for reinstatement as a result of unlawful termination of his employment by the first respondent. Madgwick J found that the trustee had not elected to prosecute the action (s 60(2)) and so the action was deemed to have been abandoned (s 60(3)). 28 The applicant contended that the question is whether the proceeding is after-acquired property within the meaning of s 58(6). Section 58(6) provides: 58(6) In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt. 34 The applicant contended that insofar as the respondents relied on Pelechowski v New South Wales Land and Housing Commission [2000] FCA 233 , that proceeding had been commenced before the making of the sequestration order which meant that the action was caught by s 60(2) of the Act. To that extent, it was contended it was not in point. 80 Madgwick J's decision in Pelechowski v NSW Land and Housing Commission [2000] FCA 233 addressed only the question whether the action was for a personal injury which was the only live issue because of the provisions of s 60(2). The action in that case was commenced before the sequestration order was made and was caught by s 60(2). Section 60(2) catches all actions not excepted by s 60(4). There was no question in that proceeding whether income, wages or earnings payable to the bankrupt after bankruptcy was property of the bankrupt or property divisible among the bankrupt's creditors.


case_text: The applicant also relied upon a decision of the Industrial Relations Commission of New South Wales in Perfection Dairies Pty Ltd v Finn [2006] NSW IR Comm 137 in which the Commission comprising Wright J, Staff J and Stanton C held that employment is not property for the purpose of the Bankruptcy Act . 79 I also agree, with respect, with the decision of the Full Bench of the New South Wales Industrial Relations Commission in Perfection Dairies Pty Ltd v Finn [2006] NSW IR Comm 137. In that case, the appellant before the Commission had summarily dismissed the respondent from employment for wilful misconduct. A Commissioner had ordered the respondent be reinstated and that the appellant pay the respondent an amount which equated to the remuneration he would have received but for the dismissal. One of the issues raised on that appeal was whether the respondent, as an undischarged bankrupt, had standing to bring the application for reinstatement. The Commission, after referring to the sections of the Bankruptcy Act to which reference has been made in these reasons and after referring to the dicta of Cooper J in Griffiths v Civil Aviation Authority 67 FCR 301 , to which I have also made reference, and the judgment of the Queensland Court of Appeal in Geia v Palm Island Aboriginal Council 152 FLR 135, said at [38]-[39]: Employment is not usually referred to, or known as, property. Whatever legal "interest" an employee has in his or her employment, it is not a property interest. In any event, it seems clear from reference to the relevant statutory provisions and the case law that, although the expression "property", and cognate expressions such as "the property of the bankrupt" and "after acquired property", are to be construed in a very wide sense, the bankrupt's employment is not considered "property" for the purposes of the Bankruptcy Act . Indeed, all the pertinent indications in the statute and the case law are to the opposite effect. For example, there are a number of references in the Bankruptcy Act to "property divisible among the bankrupt's creditors" (see, for example, s 58(6) and the definition of "the property of the bankrupt" in s 5) ; it could not seriously be suggested that the bankrupt's employment, or the bankrupt's rights as to his or her employment could be divisible among the creditors. Indeed, the statute recognises that it is most desirable that the bankrupt be able to earn income during the course of the bankruptcy and also contemplates the likelihood that a bankrupt who was an employee prior to the bankruptcy would continue to be in employment. The references we have cited from division 4B of the statute, including the references to ss 139L and 139U are also in point. In particular, we do not detect in the scheme of the Australian statute any provision which would be at odds with the observation in the judgment of the English Court of Appeal in Ex part Vine ; re Wilson, where reference was made to the necessary exception to the property of the bankrupt being divisible amongst his creditors, "in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his living".


case_text: Section 131 has been repealed. However, the Bankruptcy Act still contemplates that income earned after the bankrupt's bankruptcy does not vest in the bankrupt's trustee: Re Gillies [1993] FCA 289 ; (1993) 115 ALR 631 at 636-637. Whilst the trustee may require the bankrupt to make contributions out of the bankrupt's income, the Bankruptcy Act contemplates that those contributions will be made out of income in the hands of the bankrupt not the trustee. 73 The position therefore is no different from the position when s 131 was part of the Bankruptcy Act or s 101 part of the 1924 Bankruptcy Act . The bankrupt's income, after bankruptcy, does not vest in the bankrupt's trustee. 74 If the bankrupt's income does not vest in the trustee, it must be because it is not property or at least property divisible among the bankrupt's creditors. 82 The Court went on to say: A convenient summary of these provisions is to be found in the reasons of French J in Re Gillies; Ex parte Official Receiver in Bankruptcy [1993] FCA 289 ; (1993) 42 FCR 571. In that case his Honour held that although s 131(1) which had entitled "a bankrupt who is in receipt of income" to retain it for his own benefit had been repealed, Div 4B "rests upon the continuing assumption that the income of the bankrupt does not vest in the trustee". We are in respectful agreement with that view; but it does not, of course, bear upon the question whether a cause of action for breach of a contract which would, if carried out, have produced income for the bankrupt vests in the trustee.


case_title: Williams v Chambers (1847) 10 QB 335

case_text: In those circumstances, the trustee cannot sue for wages or income due to the bankrupt because those wages or that income have not vested in the trustee: Williams v Chambers [1847] EngR 300 ; (1847) 10 QB 335; 116 ER 130. Indeed, even if the Court ordered (under the repealed s 131) or the trustee assessed contributions payable by the bankrupt to the trustee, no right to recover that sum or those sums vests in the trustee against the employer. The liability to pay that sum or those sums is imposed upon the bankrupt.


case_text: The basic principles are reflected in an observation by Barrett J in Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [10] . His Honour there observed that the function of the Court on an application under s 439A is to strike an appropriate balance between the expectation that the administration would be a relatively speedy and summary matter, and the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders. This statement also reflects the object of Pt 5.3A which is stated in s 435A of the Act. A further principle which is relevant is that the impact of the prolongation of the administration may have on persons whose claims are affected by the statutory moratorium arising from Pt 5.3A of the Act. 10 Although the present application is not made under s 439A, but under s 447A, it seems to me that the principles which I have stated above should also inform the exercise of the discretion to further extend the time for convening a meeting. I am satisfied in accordance with those principles that the proper exercise of my discretion is to grant the further extension of time which is sought. I will therefore make orders in terms of [1] to [4] of the draft orders which I will sign and date, and place with the Court papers. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 27 January 2009 Solicitor for the Plaintiff: K P Farmer & Associates Date of Hearing: 14 January 2009 Date of Judgment: 14 January 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/25.html


case_text: An application has now been made to the Court for a further extension of time to hold a meeting of creditors. The application is made under s 447A(1) of the Act rather than under s 439A(6). This is because there is ample authority for the proposition that the power to order an extension of time for convening a meeting under s 439A does not extend to authorising a subsequent extension under that section: see for example Henry Walker Eltin Group Ltd (Administrator Appointed) (2005) 54 ACSR 383 at [1] per Hely J. However, the decision of Hely J in Henry Walker Eltin is also authority for the proposition that there is power under s 447A of the Act to further extend the convening period, notwithstanding that an earlier extension has already been granted. 3 The reasons why the furthered extension is sought are recorded in an affidavit of Mr Chamberlain sworn on 13 January 2009. In short, the affidavit discloses that the steps required by the Registered Clubs Act 1976 (NSW) and the Registered Clubs Regulation 1996 (NSW) were duly taken, but that when the period for expressions of interest expired on 15 December 2008, only one club had contacted Mr Chamberlain in relation to the proposal. Mr Chamberlain has been advised that the club which approached him is now considering various options which require a little time for consideration. 4 Perhaps more importantly for the purposes of the present application, Mr Chamberlain has now received a number of inquiries from other sporting clubs which may lead to other options for the Club to amalgamate. Because the convening period ordered by the Court was due to expire tomorrow, Mr Chamberlain does not consider that he and the Committee of Inspection will have sufficient time to consider and respond to the various inquiries made by the relevant sporting clubs.


case_text: The authorities which deal with the principles applicable to an extension of time to convene and hold a second meeting of creditors have been considered in a number of cases, commencing with the decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612.


case_outcome: related

case_title: Adams v Lambert [2004] FCA 928

case_text: On 1 July 2004 I made the following orders in this proceeding ( Adams v Lambert [2004] FCA 928): '(1) The petition be dismissed. (2) The applicant petitioner is to pay the respondent debtor's costs (including any reserved costs).'


case_title: Adams v Lambert [2006] HCA 10

case_text: On 4 April 2006 the High Court, inter alia, made the following orders ( Adams v Lambert [2006] HCA 10): '2. ... (b) the orders of Gyles J made on 1 July 2004 be set aside. 3. Remit the matter to a Judge of the Federal Court of Australia for further hearing in accordance with the reasons of this Court.'


case_text: It is submitted by counsel for the applicant creditor that the case falls squarely within the proviso to s 52(4) as the petition was dismissed. It is submitted that the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156, particularly per Toohey and Wilcox JJ at 158, confirms that conclusion. 8 The orders of the High Court and the passage of the judgment which relates to them contemplate that the matter will proceed to a hearing of the case, although there is no indication that the present issue was present to the minds of the Court. As pointed out in the passage from the judgment of Toohey and Wilcox JJ in Deputy Commissioner of Taxation v Clyne (above) somewhat anomalous results occur whichever view is taken where a petition comes on for hearing nearly two years from its date. In Rangott v Marshall [2004] FCA 961 ; (2004) 139 FCR 14 at [24] I said: 'It seems that the Act does not expressly address the imposition of an appellate regime upon the provisions in relation to sequestration and bankruptcy. That may be an accident of history.' However, as I held in that case, there is an appellate regime which applies to sequestration orders, the critical provision of which is s 28 of the Federal Court of Australia Act 1976 (Cth). 10 In my opinion, the section should not be read in that fashion as it would, in many cases, frustrate the appeal provisions. As this case illustrates, it takes time to dispose of appeals. An order extending a petition which has been dismissed could hardly be made in the meantime. It is, no doubt, for this reason that that point was not taken up either by the Full Court of this Court or by the High Court, notwithstanding invitations to do so by counsel for the applicant creditor. That conclusion is consistent with the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne . In other words, in my opinion, 'dismissal' in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 ; (2000) 100 FCR 495).


case_text: It is submitted on behalf of the debtor that, as no order has been made pursuant to subsection (5), the petition lapsed at the expiration of the period of 12 months commencing on the date of the presentation of the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261.


case_text: In my opinion, an amendment should be allowed having in mind authorities such as MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 and Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64. The amendments are to deal with the debateable result of the effect of the Regulations upon undisputed primary facts as to service. The amended petition would plainly refer to precisely the same set of events as did the original petition. There is no room for misunderstanding or misleading the respondent debtor. There is no evidence led on behalf of the respondent debtor or any suggestion made on his behalf that any prejudice flows from the amendment. The amendment, however, should not include the words in parenthesis starting with 'or on' down to 'in this paragraph'. There being no prejudice, I would order that the amended petition need not be served again.


case_text: The orders of the High Court and the passage of the judgment which relates to them contemplate that the matter will proceed to a hearing of the case, although there is no indication that the present issue was present to the minds of the Court. As pointed out in the passage from the judgment of Toohey and Wilcox JJ in Deputy Commissioner of Taxation v Clyne (above) somewhat anomalous results occur whichever view is taken where a petition comes on for hearing nearly two years from its date. In Rangott v Marshall [2004] FCA 961 ; (2004) 139 FCR 14 at [24] I said: 'It seems that the Act does not expressly address the imposition of an appellate regime upon the provisions in relation to sequestration and bankruptcy. That may be an accident of history.' However, as I held in that case, there is an appellate regime which applies to sequestration orders, the critical provision of which is s 28 of the Federal Court of Australia Act 1976 (Cth). 9 I have no difficulty in agreeing with the submission of counsel for the applicant creditor that the decision of the Full Court in Re Young; Ex parte Smith (above) is not in point. It did not deal with the problem occasioned by the dismissal of a petition, when that dismissal is subsequently set aside on appeal. Nonetheless, the question remains as to the effect of the order of the High Court setting aside the dismissal. On one view, it is as if the dismissal had never occurred (cf Rangott v Marshall (above) at [29]). Thus, there is an argument that, as the dismissal never occurred, the proviso to s 52(4) was not met and the petition has lapsed.


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


case_text: It is submitted on behalf of the debtor that, as no order has been made pursuant to subsection (5), the petition lapsed at the expiration of the period of 12 months commencing on the date of the presentation of the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261. 9 I have no difficulty in agreeing with the submission of counsel for the applicant creditor that the decision of the Full Court in Re Young; Ex parte Smith (above) is not in point. It did not deal with the problem occasioned by the dismissal of a petition, when that dismissal is subsequently set aside on appeal. Nonetheless, the question remains as to the effect of the order of the High Court setting aside the dismissal. On one view, it is as if the dismissal had never occurred (cf Rangott v Marshall (above) at [29]). Thus, there is an argument that, as the dismissal never occurred, the proviso to s 52(4) was not met and the petition has lapsed.


case_title: Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64


case_text: In my opinion, the section should not be read in that fashion as it would, in many cases, frustrate the appeal provisions. As this case illustrates, it takes time to dispose of appeals. An order extending a petition which has been dismissed could hardly be made in the meantime. It is, no doubt, for this reason that that point was not taken up either by the Full Court of this Court or by the High Court, notwithstanding invitations to do so by counsel for the applicant creditor. That conclusion is consistent with the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne . In other words, in my opinion, 'dismissal' in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 ; (2000) 100 FCR 495).


case_text: In Patrick Stevedores No 2 Pty Ltd v The Proceeds of Sale of the Vessel MV Skulptor Konenkov (1997) 75 FCR 47 at 50 51, Sheppard J said: Neither the provisions of the Admiralty Act nor those of the Admiralty Rules deal generally with the priority of claims against the proceeds of sale of a vessel arrested and sold by the Court. The English practice should be followed in Australia. There was no submission that I should do otherwise. The order of priorities is stated in Meeson N, Admiralty Jurisdiction and Practice (1993). It is there said (at 159-161) that, although there is a well-settled order of priorities which is regularly applied by the Court, this order is only a prima facie ranking. The determination of priorities is an equitable jurisdiction and in theory the Court exercises its discretion afresh in the circumstances of each case. In practice, the court follows the well-settled order of priorities and then considers whether there are any particular circumstances where justice requires it to disturb that prima facie order. The overall framework of priorities is said to be straightforward. It is as follows: (i) The Admiralty marshal's charges and expenses are a first charge on the proceeds of sale and will be paid out in priority to any other claim. The marshal's charges and expenses will include the expenses incurred in effecting the arrest, in maintaining the arrest, for example in paying port dues or for the cost of a shipkeeper and supplies required to maintain the ship whilst under arrest. Also included will be any other expenses authorised by the Court to enable the ship to be sold for the best possible price. (ii) After the expenses of the marshal have been satisfied, priority is granted to the original arresting party in respect of the costs of his action up to and including the arrest and the costs of the party who obtained the order for appraisement and sale up to and including the date of the making of that order. All these costs were incurred by the original plaintiffs. (iii) A claim with a maritime lien ranks first and has priority over all other types of claim. There are no maritime liens involved in the present case. (iv) Claims by mortgagees; there is no such claim in the present case. (v) Claims of others entitled to proceed in Admiralty in rem will be subject to maritime liens and mortgages but will have priority over general creditors of the shipowner, except those who have perfected their execution prior to the issue of the writ in rem. (vi) The claims of in personam creditors of the owner and of the res will be last, having no priority. (vii) The owner of the res is entitled to the balance remaining, if any. 7 Although the determination of priorities is an exercise of the Court's equitable jurisdiction, theoretically it exercises its discretion afresh in the circumstances of each case. As all the potentially affected parties have had an opportunity to make submissions as to whether the normal priority rules should apply, and some including the Bank of Kuwait and the Middle East have accepted that they should apply, and none has submitted that they should not apply, in the exercise of my discretion, I determine that those principles should apply. 8 In accordance with those principles, those who have a judgment against the ship have agreed to the Admiralty Marshal's charges and expenses having been paid as a first charge on the proceeds of sale and in priority to any other claim. The charges and expenses include the Marshal's expenses incurred in effecting the arrest, in maintaining the arrest, and in supplies to maintain the ship whilst under arrest and to secure its sale for the best possible price. There is no dispute as to the amounts paid to the Marshal having properly been treated as a first charge on the proceeds of sale held in the ship account. Hence, the Admiralty Marshal has been paid either directly or in reimbursement to the plaintiff for advances made to the Marshal's account by the plaintiff on account of expenses to be paid by the Marshal the sum of US$547,484.20. There were six separate orders made for payment of, or reimbursement of, the Marshal's expenses. They were, as necessary, converted into US$ at the time of payment as the ship account and the bunker account were established in US$. Those amounts were paid from the ship account. 12 As the above observations of Sheppard J indicate, the fourth priority of claims, ahead of other in rem claims, will be claims by the mortgagee. As noted, I have determined that the Bank of Kuwait and the Middle East does have a mortgage over the ship securing the advances made to the ship and its owners by the Bank of Kuwait and the Middle East. Its mortgage, although its validity was determined by the law of Kuwait (see The "Angel Bell" [1979] 2 Lloyd's Rep 491 at 495), is treated in the priority sequence on the same basis as a domestic mortgage. See Jackson DC, Enforcement of Maritime Claims (4th ed, LLP London, 2005) p 581. There has been no submission that I should not follow that principle.


case_text: As the above observations of Sheppard J indicate, the fourth priority of claims, ahead of other in rem claims, will be claims by the mortgagee. As noted, I have determined that the Bank of Kuwait and the Middle East does have a mortgage over the ship securing the advances made to the ship and its owners by the Bank of Kuwait and the Middle East. Its mortgage, although its validity was determined by the law of Kuwait (see The "Angel Bell" [1979] 2 Lloyd's Rep 491 at 495), is treated in the priority sequence on the same basis as a domestic mortgage. See Jackson DC, Enforcement of Maritime Claims (4th ed, LLP London, 2005) p 581. There has been no submission that I should not follow that principle.


case_title: Coltman v Chamberlain (1890) 25 QBD 328

case_text: In Meeson N, Admiralty Jurisdiction and Practice (3rd ed, LLP, London 2003, at [10.68] the author quotes from Coltman v Chamberlain (1890) 25 QBD 328 in support of the proposition that a mortgage of a ship passed to the mortgagee under the word "ship" will cover: ... all articles necessary to the navigation of the ship or to the prosecution of the adventure, and without which no prudent person would sail, which were on board at the date of the mortgage and articles brought on board in substitution for them subsequently to the mortgage. The Bank of Kuwait and the Middle East relies upon that text to support its claim, as well as upon Coltman 25 QBD 328. The mortgage of a "ship" included such articles, without needing to have regard to its "appurtenances" also mortgaged under the instrument in question.


case_text: On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions. 20 In The "Eurosun" and "Eurostar" [1993] 1 Lloyd's Rep 106 at 111, Sheen J said: The question whether the fuel oil was mortgaged as security for the loan is to be answered by construing the words of the mortgage. Nevertheless I cannot refrain from observing that there is something unreal in the concept of a bank manager being willing to accept an unspecified and variable amount of fuel oil as security for a loan, particularly when that fuel oil may be sold by the shipowners to charterers. If the lenders intended to accept fuel oil as part of their security, prudence would have dictated that the wording of the mortgage would include a reference specifically to fuel oil and that the deed of covenant would include a covenant not to sell the oil to a charterer. I respectfully agree with his Lordship and adopt his approach. 21 The mortgage provides that the security given over certain vessels (including the ship) would include: ... all parts of the said vessels, licences and components including the engine with all the alterations and repairs that are made to it, safety equipment, and all appendages and annexes that may be found after the conclusion of the mortgage, in addition to the wreckage of the vessels in the event of their destruction. 22 Within that description, the Bank of Kuwait and the Middle East contends that the ordinary meaning of the words "component" as part or element of a larger whole, especially a part of a machine or vehicle; "appendage" as a thing that is attached or added to something larger or more important; and "annexe" as an extra or subordinate part of a building jointed to or associated with the main building, providing additional space or accommodation all provide a means by which its mortgage included the bunkers of the ship. Whilst it is correct to say that those terms distinguish its mortgage from those considered in The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106, I do not consider that the distinction enhances the contention.


case_text: On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions.


case_outcome: considered

case_title: The "Pan Oak" [1992] 2 Lloyd's Rep 36

case_text: On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions. 23 The words "component", "appendage", and "annexe" do not in their natural meaning extend to the bunkers, because each has the feature of being a physical part of or of being physically attached to or a functioning feature of the ship. It is not necessary, nor usual, that the bunkers to be part of the property of the ship owners. They are commonly the property of the charterers. In The "Pan Oak" [1992] 2 Lloyd's Rep 36 at 39, Sheen J said: The problem which has arisen in this case can only arise when the lender lends more than the value of the ship. Most lenders do not contemplate lending more than the value of their security and would not want to look to variable security which would depend upon the quantity of oil in a ship when the ship is arrested, and upon whether the ship is on charter. For these, and perhaps many other reasons the bunkers are not usually part of the security for a mortgage. 24 In my judgment, therefore, the funds remaining in the bunker account should be distributed pro rata between those entities with an outstanding in rem judgment against the ship. The Bank of Kuwait and the Middle East is entitled to participate in that distribution to the extent that its judgment remains unsatisfied after it has received as a priority payment on the balance of the funds remaining in the ship account secured by its mortgage. 25 The amounts to be paid out proportionately cannot presently be calculated with exactitude. That is because, firstly, the amount of the claim of the Bank of Kuwait and the Middle East upon which its proportion of the balance of the bunker account cannot be precisely known until the amount it receives from the ship account is known, and, secondly, because the precise amount available in the bunker account for distribution will only be known when a final date for payment is determined.


case_title: Comcare v Eames (2008) 101 ALD 90

case_text: morning the parties were in agreement that the conclusion by the Tribunal that the disciplinary process commenced on 30 May 2002 was in error because of this Court's decision in Comcare v Eames (2008) 101 ALD 90. In Eames, Madgwick J concluded that the Tribunal had erred in law by considering that the disciplinary process did not include the investigation process giving rise to it. The application of Eames to the present case leads to the conclusion that the Tribunal erred in concluding that the disciplinary process did not begin until Mr Caldwell received the formal letter on 30 May 2002. Eames was decided on 1 April 2002. The last day of the hearing of this matter in the Tribunal took place on 4 April 2002. The evidence as to what was actually submitted to the Tribunal on that day is not entirely clear. What is clear, though, is that the Tribunal was aware of Eames . So much appears from paragraph 67 of its reasons for judgment which makes explicit reference to it. It is then necessary to deal with the application for leave to amend. The grant of leave was formally opposed. Ordinarily, on such an application, there would be two relevant matters. First, it would be necessary to ask whether the proposed amendment is one which has reasonable prospects of success. Secondly, it is to be asked whether the granting of the amendment would, or might, cause irremediable prejudice to the other party. Here, in light of Eames , there can be no question that the proposed amendment is arguable. That, of course, is reinforced by the fact that the proposed amendment has already appeared in the proceeding in the notice of contention filed by the respondent. Returning to the question of prejudice, the parties are in agreement that if the amendment is allowed then, in one shape or another, the proceeding will have to be remitted to the Tribunal. They are in disagreement as to what the nature of any re-hearing before the Tribunal should be. The appellant argues that the matter should be remitted to the Tribunal differently constituted. During argument, it became apparent that the basis for that argument was a suggestion that there would otherwise arise a reasonable apprehension of bias by way of prejudgment. On the other hand, the respondent submitted that all that needed to be done was for the Tribunal now to tailor its reasons for judgment with more care. It is difficult to be precisely sure how the hearing before the Tribunal will proceed. It may be that there is force in the submission that what has already taken place before the Tribunal, and what appears in its reasons for judgment, may bespeak a reasonable apprehension of bias by way of prejudgment. However, I explicitly make no finding about that matter. A proper consideration of that submission would, of course, require not only an analysis of the reasons of the Tribunal, but also of the transcript and of the various submissions which were made to it. One further matter which is relevant to the exercise of the discretion to grant leave to amend, and which was particularly pressed by Mr Caldwell, is the position of the appellant in these proceedings. The appellant was the successful party in Eames . The point was made by Mr Whybrow, who appeared for Mr Caldwell, that at the very time that Comcare was in this proceeding seeking to argue that the disciplinary action commenced with the formal letter of 30 May 2002, it had already argued before this Court in Eames that disciplinary action could include the investigation leading to that disciplinary action. Mr Caldwell had, therefore, been caused prejudice by Comcare's inconsistent positions, a matter said to justify a refusal to grant leave. If there were no identity of the parties at all this would obviously be irrelevant. There may be some force in the proposition that, generally speaking, it is undesirable for emanations of the executive to adopt inconsistent positions in civil litigation. However, not enough is known of the facts surrounding how the various positions in the two cases came to be adopted. I do not think, in those circumstances, it can be said that the unreasonableness of that is such that leave should not be granted. In those circumstances, I am prepared to grant Comcare's application to amend its notice of appeal to raise the proposed ground 2.3. One then needs to turn to the disposition of this morning's proceedings. It is convenient, first, to deal with ground 2.3 of the amended notice of appeal. Ground 2.3 is as follows: Whether the Tribunal erred in law by finding that the disciplinary action taken against Mr Caldwell did not commence until 30 May 2002. Setting aside a determination of the Tribunal by consent and remitting it to be determined according to law can be unhelpful if this Court does not provide reasons itself. In such cases the Tribunal is left with no guidance as to what it is that "according to law" means. For that reason I propose to say a few words in relation to the Eames ground. The Tribunal said at [55]-[57]: 55. During the period Mr Caldwell was on sick leave recovering from the effects of the flash-over he was advised by Mr Maher that he had arranged a number of meetings for Mr Caldwell to attend. Mr Caldwell was informed that one of these meetings was with the Switching Review Committee. By reason of his ill-health Mr Caldwell was unable to attend this meeting. 56. Mr Caldwell did attend a meeting with Mr Maher and Mr Winchester on 18 April 2002 when they interviewed him as to the circumstances in which he was injured. Also at this meeting Mr Maher requested Mr Caldwell to provide a written statement for consideration by the Switching Review Committee the following day. 57. On or shortly after 20 April 2002 Mr Caldwell received a copy of a report by the Committee. This report erroneously stated that Mr Caldwell was not wearing the correct gloves at the time of the incident. At [59] the Tribunal said: 59. On 2 May 2002 Mr Caldwell provided Mr Maher with a handwritten statement and a response to the report. On 13 May 2002 the Switching Review Committee issued an amended report in which it deleted the reference to Mr Caldwell not wearing protective gloves at the time of the incident. There was also a change as to the circumstances of Mr Caldwell's not having attended a meeting of the committee. Otherwise the report was the same as had been previously issued. On 30 May 2002 Mr Caldwell received the letter from his employer advising him of the action to be taken against him. In light of Eames these steps were aspects of the disciplinary action which occurred prior to 30 May 2002. It follows from that that the Tribunal's determination that the disciplinary process commenced on the 30 May 2002 is incorrect, and on that ground at least, the appeal must be allowed. As Madgwick J held in Eames , this is a question of law. In Comcare's appeal, there were two other sets of grounds. One related to the adequacy of the Tribunal's reasons insofar as it dealt with the interrelation between the medical evidence and the question of disciplinary action. The other was a question of unreasonableness in fact finding. Both of those debates are moot in light of a conclusion that the decision needs to be set aside because of the disciplinary action determination. In those circumstances, the appropriate orders are that the appeal be allowed, that the orders of the Tribunal formally entered on 30 May 2008 be set aside, that the matter be remitted to the Tribunal as originally constituted, and that the procedure to be adopted by the Tribunal is for it to determine. I should say in relation to that that there are procedural questions as to how the issue of the disciplinary action in the matter is now to be determined. This may require close consideration of the evidence which has already been led. These are matters for the Tribunal to determine. It is also for the Tribunal to determine any application made by Comcare for disqualification on the basis of prejudgment. I now turn to the question of costs. The Eames point was raised in the respondent's notice of contention on 17 July 2008. In my opinion, the appellant should have detected the Eames problem at that time, or shortly thereafter that time, but certainly before last Friday. It follows from that that between 17 July 2008 and very recently the parties have been engaged in litigation which would not have occurred if Comcare had fully appreciated the significance of the notice of contention. On the other hand, today's hearing would have undoubtedly taken place once the Eames point was discerned. In those circumstances, it is appropriate to order that each party pay their own costs prior to 17 July 2008. From 17 July 2008 to 14 December 2008 the appellant is to pay the respondent's costs. In relation to the costs of today, each party is to pay their own. I have considered whether to impose a costs condition on the grant of leave to appeal of the kind explored during argument but I have concluded that that is inappropriate. The reasons for that are, first, what exactly is going to happen in the Tribunal is presently unclear. It may disqualify itself; it may conduct a hearing at which only submissions are made; it may conduct a hearing at which further evidence is taken. It is not possible in that circumstance to fashion an appropriate costs order which would be fair. Secondly, the orders of the Tribunal of 24 April 2008 (entered 30 May 2008) having been set aside, the costs of those first proceedings are now undetermined. One of the issues which the Tribunal will have before it on the second hearing is the question of the costs of its first proceedings. The Tribunal will be better placed than I am to deal with that issue. It is for those reasons I do not impose a costs requirement as a condition of the grant of leave. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 27 January 2009 Solicitor appearing for the Appellant: Mr B Dubé Solicitors for the Appellant: DLA Phillips Fox Counsel for the Respondent: Mr S M Whybrow Solicitors for the Respondent: Slater & Gordon Date of Hearing: 15 December 2008 Date of Judgment: 15 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/2015.html


case_text: provision made it forensically desirable for Comcare to seek to prove that Mr Caldwell's psychological issues were caused by disciplinary action rather than the electrical accident. In response, Mr Caldwell contended that the disciplinary process to which he had been subjected had not contributed to his condition in a material way. The necessity for the disciplinary process to contribute to the injury in a material degree in order to be excluded from the definition of "injury" was established by this Court's decision in Weigand v Comcare Australia (No 2) (2007) 94 ALD 154. The medical evidence before the Tribunal on the question of whether the disciplinary action had contributed to his condition in a material degree was varied. That variation was a function, in part, of obscurity in the expert evidence about when precisely it was that the disciplinary action had commenced. The Tribunal concluded that the disciplinary process commenced on 30 May 2002 when the formal letter was sent. It also concluded, however, that it had not contributed to Mr Caldwell's condition in a material degree. Comcare made two complaints about the Tribunal's process of reasoning. First, it claimed that the reasons which were proffered by the Tribunal for this conclusion were inadequate. Secondly, it claimed that the manner in which the Tribunal had dealt with the medical evidence was unreasonable in a Wednesbury sense. In his notice of contention, Mr Caldwell submitted that the Tribunal should not have concluded that the disciplinary action had commenced on 30 May 2002 when the formal letter was sent but, rather, that it had commenced shortly after the accident when the meetings and investigations took place. The respondent also submitted that if the disciplinary action had commenced shortly after the accident it could not be characterised as reasonable disciplinary action.


case_text: The first respondent has submitted that the grounds of appeal before this Court were not raised in the Court below, and that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The respondent has submitted further that these conditions are not satisfied in this case because: 1. The appellant was legally represented by counsel in the Court below. 2. The appellant has not sought to explain why the new grounds were not raised in the Court below. 3. In respect of the new grounds, the law in respect of those grounds was settled and not in a confused or fluid state at the time that the matter was heard by Smith FM in September 2006. 4. The new grounds have little or no prospects of success on appeal; and 5. When these matter are weighed in the balance with the interests of the Court in maintaining the integrity of the appeal process, the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration, it is not expedient and in the interests of justice to allow the new grounds to be argued and determined.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (1004) [2004] HCA 32 ; 207 ALR 12

case_text: The reliance by the appellant's Counsel's on Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 to support this ground was, in the Federal Magistrate's opinion, inappropriate because it was a case where the weight of authority was clearly against the appellant. His Honour noted that this case indicated the need for exceptional circumstances to arise before a duty to investigate arose. The Federal Magistrate found that the appellant's circumstances were completely lacking in features which might support the exceptional duty referred to in Azzi . The Tribunal specifically informed the appellant that it did not intend to initiate any post-hearing approaches and the appellant did not suggest what evidence the particular witness could provide to answer his case. Further, there would have been obvious difficulties in relation to obtaining and giving weight to any evidence obtained from such a witness. 17 Accordingly the Federal Magistrate dismissed the application. 18 The appellant appealed to this Court by notice of appeal filed on 9 October 2006. Six grounds were raised, namely that the Federal Magistrate erred by not finding error in the Tribunal's decision as follows: 1. Jurisdictional error by affirming the decision of the Tribunal that the appellant did not have a well-founded fear of persecution. 2. Lack of procedural fairness in the proceedings of the Tribunal in that it did not give the appellant a reasonable opportunity to respond to independent evidence that Awami League activists were able to live in Bangladesh without being persecuted for involvement in political activities and membership of that party without becoming a victim of violence. 3. The Tribunal and the delegate had not dealt with a key component of the appellant's claims, namely the harassment for his political views. 4. The Tribunal failed to consider: the risk of persecution that forced the appellant to leave Bangladesh; the appellant was a credible witness; failing to judge whether persecution of Awami League members occurs under the existing regime; that the opponent political activists are specific targets of the fundamentalist political party Jamat e-Islam and the BNP who have formed a coalition. 5. Legal error by asserting the appellant did not have a genuine fear of persecution for a Convention reason and did not take into consideration the threat to the appellant's life or liberty that he would experience on return to Bangladesh. 6. The Tribunal fell into error by asserting that the appellant need not maintain his membership of the Awami League. 38 In relation to the balance of the submissions of the appellant, to the extent that they were not subsumed by the grounds of appeal I note: • to the extent that the Tribunal made findings that the appellant's oral evidence and the advice in his letter of 12 February 2006 provided incomplete and vague information with respect to charges against him, such findings were findings of fact and not open for review; and • the appellant's claim that the decision of the Tribunal was not a bona fide attempt to act in the course of the Tribunal's authority is general and vague, however to the extent that the appellant claims that the Tribunal was obliged to make further inquiries with respect to the appellant's claims, the claim cannot be sustained as the Tribunal is under no duty to inquire: Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22. 39 In light of these issues, in my view it is not expedient and in the interests of justice to allow the grounds raised on appeal by the appellant, and not previously raised in the Court below, to be argued and determined by this Court. 40 Accordingly, the appeal should be dismissed with costs. ORDERS 1. The name of the first respondent be amended to Minister for Immigration and Citizenship. 2. The Refugee Review Tribunal be added as a second respondent to these proceedings. 3. The appeal be dismissed. 4. The appellant pay the costs of the first respondent. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 27 March 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Phillips Fox Date of Hearing: 28 February 2007 Date of Judgment: 27 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/424.html


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


case_text: On 21 October 2005 I dealt with one aspect of a motion by Aaron Stephenson for access to subpoenaed documents for the purpose of use in other proceedings and for related relief. I stood over the motion in order to give further consideration to the wider issues involved ( Australian Prudential Regulation Authority v Rural & General Insurance Limited (ACN 000 007 492) (Subject to Deed of Company Arrangement) [2005] FCA 1548). 2 In 2003 and 2004, Australian Prudential Regulation Authority (APRA) was proceeding in this Court seeking to wind up Rural & General Insurance Limited (as it then was) (Rural & General) pursuant to s 462(3) of the Corporations Act 2001 (Cth). Rural & General was represented by solicitors and counsel and actively opposed the winding up. APRA had earlier appointed Peter John McCarthy of the accountancy firm of Ernst & Young to make an investigation in respect of the company under s 52 of the Insurance Act 1973 . In the course of the proceeding several sets of documents were subpoenaed from McCarthy and his firm and a significant volume of documents was produced. Stephenson was the Managing Director of Rural & General and was actively involved in instructing solicitors and counsel. Leave to discontinue the proceeding was granted on 17 March 2004 following the execution by Rural & General of a Deed of Company Arrangement on 15 March 2004. The documents produced on subpoena on behalf of McCarthy and his firm should have been returned promptly. Due to an administrative oversight they were not. 3 Stephenson is the applicant in proceedings in the Administrative Appeals Tribunal (AAT) against APRA appealing against APRA's decision to disqualify him under s 25A of the Insurance Act 1973 . On 15 June 2005 he signed a statement in connection with that proceeding to which were annexed a number of documents, being copies of communications which passed between McCarthy and officers of APRA prior to the disqualification. Stephenson wishes to rely upon those communications to contend that the decision to disqualify him was affected by extraneous considerations. APRA took exception to the use of those documents contending, amongst other things, that they had been obtained as a result of inspection of documents produced to this Court in the course of the winding up proceeding in breach of the implied undertaking as to proper use of such documents.


case_text: It is well established that the implied undertaking can, in appropriate circumstances, be released or modified by the Court. There are many cases discussing the exercise of that power in differing circumstances, a recent example being the decision of the Full Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]. (See also, for example, Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19 ; (1995) 183 CLR 10 per Brennan J at 36 37; and the authorities cited in British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43 ; (2003) 8 VR 571 at [52] .)


case_title: Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19 ; (1995) 183 CLR 10


case_title: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]


case_text: There is no evidence as to how the defendant could continue to trade without the plaintiff's support. Indeed, the inference must be that it could not. There is no evidence that the defendant could pay for any of the stock in advance or at all. I am not therefore persuaded that the creditors would receive a better or earlier dividend by the administration continuing, rather than the company being liquidated: Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456. At the very highest, from the defendant's point of view, the defendant's case is one of speculation rather than of possibilities which is not sufficient to engage section 440A: Deputy Commissioner of Taxation v Yates Security Services Pty Limited (1997) 26 ACSR 629.


case_title: Deputy Commissioner of Taxation v Yates Security Services Pty Limited (1997) 26 ACSR 629


case_text: The appellant applied to the Federal Magistrates Court to quash the RRT's decision on the basis that it was tainted with jurisdictional error: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. On 30 June 2006 that application was dismissed. This is an appeal from that decision.


case_text: The appellant appeared in person before the Federal Magistrate and on this appeal. Clearly, he was at some disadvantage in identifying precisely the jurisdictional error which he claimed the RRT had committed. His contentions lapsed at times into an attempt to re-argue the merits of the case, even though neither the Federal Magistrates Court nor this Court on appeal can inquire into the merits of the case. The Court's jurisdiction is limited to determining whether jurisdictional error is established. Review of the factual merits of the decision of the RRT in order that the Court substitute its view of the facts is not within the jurisdiction of either Court: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.


case_text: In the appellant's submissions to this Court, I discerned two threads of asserted jurisdictional error which, if established, might lead to the appeal being allowed and the RRT decision being set aside so that the protection visa application should be reheard by the RRT differently constituted. Those grounds were: 1. that the RRT had not approached its review with a mind open to persuasion, or at least that it approached its task in a way which gave rise to a reasonable apprehension of bias on its part; 2. that the RRT, although it recited the applicable law correctly, somehow then misapplied the law so that it did not in fact address the question which it was required to address. Either of those matters, if made out, may constitute jurisdictional error: see e.g. per Kirby J in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 ; (2001) 179 ALR 513; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. The first of those matters remains available as a ground of jurisdictional error, notwithstanding s 422B of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214


case_text: The test for apprehended bias in relation to a body such as the RRT is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the RRT might not bring, or might not have brought, an impartial mind to the resolution of the question to be decided: see per Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 434-435, at [27]-[28] and the cases cited at fn 7. 39 There is nothing to suggest the RRT conducted the hearing in a way which might indicate a closed mind on its part. The only evidence as to how it conducted its hearing is from its own recital of those events. They disclose only a firm testing of the claims made by the appellant, in some instances by confronting him with inconsistencies in documentary materials and in the statements of himself and others.