case_text: these reasons, in my view, Mr Nicholls' first proposition set out at [33] above, expressed as generally as it is, is not fairly arguable. It is inconsistent with s 3E of the TAA. The same applies to his second proposition. The cases which are said expressly to establish those propositions do not do so. Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 concerned the question whether Mr Johns, who had provided information to the ASC under compulsion, was entitled to be heard before that information was provided to a Royal Commission. The provision of the information to the Royal Commission was permitted by s 127(4) of the Australian Securities Commission Act 1989 (Cth) (the ASC Act), but it was held that Mr Johns was entitled to have been heard before the provision of that information on an unrestricted basis (see esp per Crennan J at 430-1). Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374 concerned the use to which material seized under a search warrant executed by the AFP and made available to ASIC could then be used by ASIC in the conduct of civil proceedings: see per Austin J at 421-9 [239]-[274] and, in particular, his Honour's conclusion at 429 [274]. That is a different issue to either of the first two propositions of Mr Nicholls. Finally, he referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564. That case addressed the validity of a decision to issue a notice under s 564 of the ITAA where criminal proceedings against the person to whom the notice had been issued had already been commenced. Foster J (who generally agreed with the plurality judgment of Hill and Lindgren JJ) noted at 568 that it was conceded on behalf of the respondent that information so acquired, provided it was acquired for a proper purpose (which his Honour said was the purpose of obtaining information for the collection and protection of the revenue), could be forwarded to the prosecution to assist in a criminal prosecution. The confined nature of that purpose is recognised by the restriction recognised in s 4E(3) and (4) of the TAA referred to above.


case_outcome: discussed

case_title: Commissioner of Taxation v De Vonk (1995) 61 FCR 564


case_outcome: cited

case_text: The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck & Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .


case_title: Flexible Steel Lacing Co v Beltreco (2000) 49 IPR 331

case_text: The essential principles of construction were not in dispute; see generally Sachtler GmbH & Co KG v Re Miller Pty Ltd (2005) 65 IPR 605 at [43]; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39] and Flexible Steel Lacing Company v Beltreco (2000) 49 IPR 331 at 347-350 [70]-[81].


case_text: The essential principles of construction were not in dispute; see generally Sachtler GmbH & Co KG v Re Miller Pty Ltd (2005) 65 IPR 605 at [43]; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39] and Flexible Steel Lacing Company v Beltreco (2000) 49 IPR 331 at 347-350 [70]-[81]. 64 The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck & Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .


case_outcome: referred to

case_title: Hill v Evans (1862) 31 LJ Ch 457

case_text: With a prior paper anticipation as alleged here, and applying the reverse infringement test, with assistance from the words of Lord Westbury LC in Hill v Evans (1862) 31 LJ Ch 457 at 463, the following can be stated: "...The antecedent statement [here the Euro-patent] must be such that a person of ordinary knowledge of the subject would at once perceive, understand and be able practically to apply the discovery [the disclosure in the Euro-patent] without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the careful application of the discovery, that affords sufficient room for another valid patent." 66 Mr Ben-Meir propounded a disclosure analysis of the Euro-patent which saw all the integers of the patent in suit disclosed. Dr Clarke agreed with the "technical substance" of Mr Ben-Meir's disclosure analysis, but he expressed the view that the disclosure was not such as to amount to instruction in that he did not think that the Euro-patent provided a person skilled in the art with sufficient information to implement a system contemplated by the patent in suit. 67 Thus the parties were apart on the degree or quality of the exemplification or disclosure in the Euro-patent. Before turning to that question, it is important to appreciate the significance to this aspect of the case of my view of integer (d)(v) for claim 1 and integer (g) for claim 13. My disagreement with the applicants' construction of the aspect of claims 1 and 13 about the means for processing data operating to apply the promotional program rules to user personal data, means that it is necessary for the Euro-patent to reveal in the relevant sense a system and a method whereby that element is disclosed not merely a system of a card "belonging to" or "identified with" one person or a unique number which has points updated after purchasing pursuant to some algorithm, as in the Sushi Train system. My views on the construction of integer (d)(v) of claim 1 and integer (g) of claim 13 make it possible for me to express my views about the question of anticipation fairly shortly.


case_title: Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476


case_title: Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86


case_title: Merck & Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511


case_text: There was no debate as to the applicable law. The Patents Act 1990 as it existed before the amendments made by the Patents Amendments Act 2001 (Act 160 of 2001) governed the case. It was not in dispute that reverse infringement is the general test for anticipation and want of novelty: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235. See also Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 261.


case_title: Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513


case_title: Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236


case_title: Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1


case_title: R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565


case_title: Sachtler GmbH & Co KG v Re Miller Pty Ltd (2005) 65 IPR 605


case_title: Abeyratne v Trkulja (1998) 90 FCR 253

case_text: There are authorities of this Court to the effect that s 60(3) 'does not expressly provide to the contrary' within s 33(1)(c) of the Act and in those circumstances an application for an extension of time within which to elect under s 60(3) may be made by a trustee in bankruptcy even if the time limit of 28 days has expired: Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109; Abeyratne v Trkulja (1998) 90 FCR 253. For the purposes of this application, I will proceed on the assumption that the time can be extended even if the time for election has expired at the time the application is made.


case_outcome: applied

case_text: The fundamental purpose of s 178 of the Act is to give the court the power in a supervisory role, to review acts, omissions or decisions of a trustee in bankruptcy made in the course of the administration of a bankrupt's estate on the application of any person with appropriate standing. Its operation is to be understood in its historical context ( Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101 ('Macchia') at 119 per French J), and in the context of the broader relationship between the court and the trustee in bankruptcy as an officer of the court ( Macchia at 116). For present purposes it is sufficient to note the following points about the scope of the section: 1. Under the section, the court is fulfilling a supervisory role judicially, rather than an administrative role standing in the shoes of the trustee. As such, grounds for judicial review must be established by an applicant Re Wheeler; Ex parte Wheeler v Halse (1994) 54 FCR 166 (' Wheeler' ) at 170 per Lee J, and the exercise of the court's power is wholly in its discretion. The court has the 'widest possible discretion as to the appropriate order which should be made in the particular case' ( Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 (' Re Tyndall ') at 186 per Deane J). 2. The impugned act, omission or decision of the trustee in bankruptcy need not be absurd, unreasonable, or taken in bad faith before it is subject to review or a resultant order of the court under the section ( Re Tyndall at 186 per Deane J). Indeed, the act, omission or decision of the trustee may be subject to review even though it was commercially sound at the time it was made: Macchia at 116 per French J. At the same time the trustee's opinion will be a relevant factor in the exercise of the court's discretion, and there is no presumption that the court will intervene in a given case. The fact that the court might have taken a different course to the trustee in bankruptcy at the relevant time is not, without more, a basis to disturb the trustee's decision: Re Tyndall at 186 per Deane J; Macchia at 116 per French J. 3. The court is able to take into account information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4. The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 186 per Deane J. 5. The section does not provide an avenue for a bankrupt to pursue his or her personal interests at the expense of creditors ( Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 139 per Brennan CJ, Gaudron and McHugh JJ) nor does it 'create a cause of action which sounds in damages', either in tort or under the general law ( Macchia at 119). Both of these propositions reflect the purpose of the section which is to give the court a supervisory role with respect to a trustee in bankruptcy in the administration of the bankrupt's estate. 6. Ultimately the question is what result would be 'just and equitable' in the circumstances of the case. 49 The bankrupt submitted that the appeals should proceed because he should be given the opportunity to restore his reputation. He referred to the comments Lander J made about him when considering his credibility as a witness. Those comments were certainly adverse to the bankrupt. I am prepared to assume for the purposes of argument and without deciding that restoration of reputation includes reputation damaged as a result of findings as to the credibility of the bankrupt in the proceedings. There is no suggestion in this case of the trustee being asked to assign any rights in relation to the appeals or of an indemnity for the costs of the appeals being offered to the trustee. Even if there were moneys in the estate a court 'would be unlikely to permit the bankrupt to pursue his personal interests in so far as they are not coincident with the due administration of the estate by the trustee, at the expense of the creditors': Cummings v Claremont Petroleum NL (supra) at 139 per Brennan CJ, Gaudron and McHugh JJ. This case is even stronger because there are no undisputed funds to pay for the prosecution of the appeals.


case_title: Faulkner, Re; Ex parte Official Receiver (1981) 52 FLR 109


case_outcome: considered

case_title: Gault, Re , Gault v Law (1981) 57 FLR 165

case_text: Section 179 requires the court to engage in a process which may involve two stages. First, the court must consider whether there is a basis to inquire into the conduct of a trustee in bankruptcy. Secondly, if an inquiry is undertaken, the court must consider what, if any, order should be made as a result of the inquiry. I note the following salient points with respect to the operation of the section in the case of the first stage. It is not necessary for me to consider the second stage because I do not think that there is a basis to inquire into the conduct of the trustee in bankruptcy. 1. The question of whether to order an inquiry is in the broad discretion of the court, and the court should be reluctant to do so unless there are "substantial grounds for believing that the trustee erred in his administration" ( Re Gault , Gault v Law (1981) 57 FLR 165 (' Re Gault ') at 173 per Ellicott J, cited in Macchia at 120 per French J). This requirement has also been put in terms of 'sufficient grounds' ( Re Gault at 173 per Ellicott J), and 'a proper cause to believe that a trustee may have failed to act in relation to a bankruptcy in the manner required by the Act or the general law' ( Wilson v Commonwealth of Australia [1999] FCA 219 at [44] per Branson J). The onus is on the applicant to establish the grounds or case for an inquiry. 2. As with s 178, the exercise of the court's discretion to order an inquiry is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 120 per French J. 3. As with s 178, s 179 is not a vehicle for a bankrupt or other person to seek damages which go beyond the making good of any loss to the bankrupt's estate caused by improper administration by the trustee in bankruptcy: Re Tyndall at 121 per French J.


case_title: Gray v Clout (1990) 27 FCR 141

case_text: The fundamental purpose of s 178 of the Act is to give the court the power in a supervisory role, to review acts, omissions or decisions of a trustee in bankruptcy made in the course of the administration of a bankrupt's estate on the application of any person with appropriate standing. Its operation is to be understood in its historical context ( Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101 ('Macchia') at 119 per French J), and in the context of the broader relationship between the court and the trustee in bankruptcy as an officer of the court ( Macchia at 116). For present purposes it is sufficient to note the following points about the scope of the section: 1. Under the section, the court is fulfilling a supervisory role judicially, rather than an administrative role standing in the shoes of the trustee. As such, grounds for judicial review must be established by an applicant Re Wheeler; Ex parte Wheeler v Halse (1994) 54 FCR 166 (' Wheeler' ) at 170 per Lee J, and the exercise of the court's power is wholly in its discretion. The court has the 'widest possible discretion as to the appropriate order which should be made in the particular case' ( Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 (' Re Tyndall ') at 186 per Deane J). 2. The impugned act, omission or decision of the trustee in bankruptcy need not be absurd, unreasonable, or taken in bad faith before it is subject to review or a resultant order of the court under the section ( Re Tyndall at 186 per Deane J). Indeed, the act, omission or decision of the trustee may be subject to review even though it was commercially sound at the time it was made: Macchia at 116 per French J. At the same time the trustee's opinion will be a relevant factor in the exercise of the court's discretion, and there is no presumption that the court will intervene in a given case. The fact that the court might have taken a different course to the trustee in bankruptcy at the relevant time is not, without more, a basis to disturb the trustee's decision: Re Tyndall at 186 per Deane J; Macchia at 116 per French J. 3. The court is able to take into account information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4. The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 186 per Deane J. 5. The section does not provide an avenue for a bankrupt to pursue his or her personal interests at the expense of creditors ( Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 139 per Brennan CJ, Gaudron and McHugh JJ) nor does it 'create a cause of action which sounds in damages', either in tort or under the general law ( Macchia at 119). Both of these propositions reflect the purpose of the section which is to give the court a supervisory role with respect to a trustee in bankruptcy in the administration of the bankrupt's estate. 6. Ultimately the question is what result would be 'just and equitable' in the circumstances of the case.


case_text: The fundamental purpose of s 178 of the Act is to give the court the power in a supervisory role, to review acts, omissions or decisions of a trustee in bankruptcy made in the course of the administration of a bankrupt's estate on the application of any person with appropriate standing. Its operation is to be understood in its historical context ( Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101 ('Macchia') at 119 per French J), and in the context of the broader relationship between the court and the trustee in bankruptcy as an officer of the court ( Macchia at 116). For present purposes it is sufficient to note the following points about the scope of the section: 1. Under the section, the court is fulfilling a supervisory role judicially, rather than an administrative role standing in the shoes of the trustee. As such, grounds for judicial review must be established by an applicant Re Wheeler; Ex parte Wheeler v Halse (1994) 54 FCR 166 (' Wheeler' ) at 170 per Lee J, and the exercise of the court's power is wholly in its discretion. The court has the 'widest possible discretion as to the appropriate order which should be made in the particular case' ( Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 (' Re Tyndall ') at 186 per Deane J). 2. The impugned act, omission or decision of the trustee in bankruptcy need not be absurd, unreasonable, or taken in bad faith before it is subject to review or a resultant order of the court under the section ( Re Tyndall at 186 per Deane J). Indeed, the act, omission or decision of the trustee may be subject to review even though it was commercially sound at the time it was made: Macchia at 116 per French J. At the same time the trustee's opinion will be a relevant factor in the exercise of the court's discretion, and there is no presumption that the court will intervene in a given case. The fact that the court might have taken a different course to the trustee in bankruptcy at the relevant time is not, without more, a basis to disturb the trustee's decision: Re Tyndall at 186 per Deane J; Macchia at 116 per French J. 3. The court is able to take into account information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4. The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 186 per Deane J. 5. The section does not provide an avenue for a bankrupt to pursue his or her personal interests at the expense of creditors ( Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 139 per Brennan CJ, Gaudron and McHugh JJ) nor does it 'create a cause of action which sounds in damages', either in tort or under the general law ( Macchia at 119). Both of these propositions reflect the purpose of the section which is to give the court a supervisory role with respect to a trustee in bankruptcy in the administration of the bankrupt's estate. 6. Ultimately the question is what result would be 'just and equitable' in the circumstances of the case. 29 Section 179 is governed by similar, but not identical, considerations to those which are relevant to s 178. Unlike s 178, which relates to the review of specific acts, omissions or decisions of a trustee in bankruptcy in the administration of a bankrupt's estate, s 179 reflects the more general aspect of the court's supervisory role and allows it to carry out an inquiry into the 'conduct' of a trustee in relation to a bankrupt's estate or affairs (s 179(1)). As with s 178 the section is to be understood in the context of the role of the trustee in bankruptcy as an officer of the court. The section is typically employed where an allegation of misconduct or error by a trustee in bankruptcy arises ( Macchia at 120 per French J). 30 Section 179 requires the court to engage in a process which may involve two stages. First, the court must consider whether there is a basis to inquire into the conduct of a trustee in bankruptcy. Secondly, if an inquiry is undertaken, the court must consider what, if any, order should be made as a result of the inquiry. I note the following salient points with respect to the operation of the section in the case of the first stage. It is not necessary for me to consider the second stage because I do not think that there is a basis to inquire into the conduct of the trustee in bankruptcy. 1. The question of whether to order an inquiry is in the broad discretion of the court, and the court should be reluctant to do so unless there are "substantial grounds for believing that the trustee erred in his administration" ( Re Gault , Gault v Law (1981) 57 FLR 165 (' Re Gault ') at 173 per Ellicott J, cited in Macchia at 120 per French J). This requirement has also been put in terms of 'sufficient grounds' ( Re Gault at 173 per Ellicott J), and 'a proper cause to believe that a trustee may have failed to act in relation to a bankruptcy in the manner required by the Act or the general law' ( Wilson v Commonwealth of Australia [1999] FCA 219 at [44] per Branson J). The onus is on the applicant to establish the grounds or case for an inquiry. 2. As with s 178, the exercise of the court's discretion to order an inquiry is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 120 per French J. 3. As with s 178, s 179 is not a vehicle for a bankrupt or other person to seek damages which go beyond the making good of any loss to the bankrupt's estate caused by improper administration by the trustee in bankruptcy: Re Tyndall at 121 per French J.


case_title: Moore v Macks [2006] FMCA 594

case_text: As I have said, the Federal Magistrate had before him an application issued by the bankrupt on 16 March 2005 and seeking an order removing the trustee. The Federal Magistrate made a decision on the application insofar as it raised matters not related to the trustee's conduct in relation to the appeals ( Moore v Macks [2006] FMCA 594). On 27 April 2006 he made the following orders: '1. That the application filed on 16 March 2005 for orders pursuant to s 179(1)(a) of the Bankruptcy Act removing the respondent as trustee of the applicant's bankrupt estate and for orders relating to the trustee's conduct, other than his proposed abandonment of appeals instituted by the applicant in SAD175/04 and SAD176/04 in the Federal Court of Australia, be dismissed. 2. That further consideration of the application as it relates to orders sought arising out of the proposed abandonment of the said appeals be adjourned to Wednesday, 17 May 2006 at 9.30 am. 3. That the interim application filed on 10 April 2006 do stand dismissed.' 21 Those orders made by the Magistrate are the subject of an appeal to this Court which has not yet been heard and determined. 22 It seems that because the appeals had been called over before me, the Federal Magistrate considered that it may be appropriate for me to deal with what was then left of the application and on 13 June 2006 he made the following order: '1. Further hearing of these proceedings be transferred to the Federal Court of Australia before His Honour Justice Besanko on 22 June 2006 at 2.15 pm.' 23 The power to transfer a 'proceeding' to this Court is contained in s 39 of the Federal Magistrates Act 1999 (Cth). 24 The application before me relates to the trustee's decision that he will not seek to prosecute the appeals. More accurately, in view of the events which have occurred, the decision is the trustee's decision that he will not seek an extension of time to elect for the purpose of prosecuting the appeals. I have considered the application under both s 179 and s 178 of the Act and I have concluded that there are no grounds under either section to impugn the trustee's decision.


case_title: Moore v Wilson [2006] FCA 79

case_text: The bankrupt challenged the sequestration order which had been made by a Registrar of the Federal Magistrates Court. On 1 July 2005 a Federal Magistrate dismissed the bankrupt's application for review ( Moore v Wilson [2005] FMCA 870). The bankrupt appealed to this Court against the Federal Magistrate's order. On 10 February 2006 a Judge of this Court, exercising the appellate jurisdiction of the Court, dismissed the bankrupt's appeal ( Moore v Wilson [2006] FCA 79). The bankrupt then applied to the High Court for special leave to appeal from the Judge's decision. It seems that the bankrupt did not comply with those rules of the High Court which require documents to be filed by a certain date and, as a result, his application was deemed to be abandoned. At a prior hearing before me, the bankrupt told me that there were good reasons why he did not file the necessary documents and that they related to his health. He told me that he would be applying for a reinstatement of his application for special leave to appeal. Whether he has done so, or will do so, is not relevant to the issues raised by the application before me.


case_title: Moore v Wilson [2005] FMCA 870


case_title: Tyndall, Re; Ex parte Official Receiver (1977) 17 ALR 182


case_title: Wheeler, Re; Ex parte Wheeler v Halse (1994) 54 FCR 166


case_title: Wilson v Commonwealth of Australia [1999] FCA 219


case_text: Mr Wilson and Ms Lawton instituted proceedings in this Court against Manna Hill Mining Company Pty Ltd ('Manna Hill Mining Company'), the bankrupt and six other parties. The proceedings came on for hearing before Lander J in February and April 2004. It is not necessary to describe the nature of the proceedings in detail. The following description of the three issues in the proceedings taken from the reasons for judgment of Lander J ( Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912 at [1] - [6] ) will suffice: 'The applicants were directors of the first respondent, Manna Hill Mining Company Pty Ltd (Manna Hill Mining). The first question in these proceedings is to determine whether they are still directors of Manna Hill Mining. The second respondent, Mr Moore, was, and is, a director of Manna Hill Mining and the seventh respondent, Hodgemore Pty Ltd. The third respondent, Mr Hagger, was appointed a director of Manna Hill Mining on 12 June 2003 and resigned as a director of that company on 7 July 2003. He is a director of, and effectively controls, the fourth respondent, East Adelaide Company Pty Ltd. The fifth respondent, Mr Spratt, and the sixth respondent, Mr Ewen, claim to be directors of Manna Hill Mining. They also claim to hold shares in Manna Hill Mining. The second question in this case is to determine whether those shares were validly issued and allotted on 12 June 2003 and 19 January 2004, and whether Mr Ewen and Mr Spratt were validly appointed as directors on 19 and 20 January 2004. Mr Hagger and East Adelaide Company Pty Ltd have advised the Court that they will abide by any decision of the Court. The applicants called Mr Hagger as a witness. Manna Hill Mining may or may not be in administration. That depends on the answers to the first two questions and is the third matter to be determined in these proceedings.' 7 The applicants in the proceedings were successful and a number of orders were made by Lander J on 16 July 2004 and 30 July 2004 respectively. The orders made on 30 July 2004 were orders as to the costs of the proceedings and included an order that the bankrupt pay the applicant's costs on an indemnity basis. His Honour delivered reasons for his costs orders: Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1035. 8 The bankrupt represented himself at the hearing of the proceedings as he did before me. Lander J found that he was an unsatisfactory witness. In his judgment dealing with the substantive issues his Honour said (at [94]-[98]): 'I have had the opportunity of observing Mr Moore whilst he was giving his evidence, cross-examining witnesses and putting his arguments during the trial of these proceedings. Mr Moore is a very determined man. He is consumed by Manna Hill Mining's activities and the activities of two other mining companies, Manna Hill Resources Pty Ltd and Manna Hill Gold Pty Ltd. He is a shareholder and director of all three companies. He worked extremely hard to take Manna Hill Mining out of administration and to resume trading. He is so consumed by the groups' activities that he will allow nothing to stand in his way. He has a strong personality which he uses to dominate others. He is an aggressive and overbearing man. As I have said, he will allow nothing to stand in his way. I assess him as being ruthless and fearless. He is also, unfortunately, unprincipled. For reasons which follow, I am of the opinion that the breakdown of his working relationship with Ms Lawton led him to claim, untruthfully, that Ms Lawton had resigned as a director of Manna Hill Mining on 24 March 2003. Because of the events on 27 May 2003, which I shall address in some detail, he determined to strip Mr Wilson of his control of Manna Hill Mining which he purported to do on 12 June 2003 and 19 January 2004. He then, methodically and ruthlessly, took steps to remove Mr Wilson as a director of Manna Hill Mining culminating in an extraordinary general meeting on 20 January 2004. He then attempted, on 6 February 2004, to put Manna Hill Mining's assets beyond the reach of Mr Wilson, even if Mr Wilson was successful in these proceedings. Lastly, he purported to put Manna Hill Mining into administration on 11 February 2004 to frustrate Mr Wilson's claims. Mr Moore was a very poor witness. He prevaricated. He refused to address questions directly where a direct answer would embarrass his case. He was garrulous when it suited him. He was also untruthful when it suited him so to be. I am not prepared to act on any of his evidence, unless his evidence is corroborated or consistent with the evidence of the applicants and their witnesses. Wherever his evidence is in conflict with the evidence of any other witness, including the evidence of Mr Spratt, I prefer the evidence of those other witnesses. Wherever his evidence is contradicted by any document, I reject his evidence.' 9 I mention these findings of Lander J because the bankrupt told me that one of the reasons he wished to pursue the appeal and the application for leave to appeal was that it would give him an opportunity of restoring his reputation. 10 The bankrupt filed and served an appeal against the substantive orders made by Lander J and an application for leave to appeal against the costs order made against him. For convenience, I will refer to the appeal and the application for leave to appeal as 'the appeals'. The appeals were filed and served on 6 August 2004. 11 The creditor's petition presented by Mr Wilson and Ms Lawton and the sequestration order made on the petition were based on a judgment debt which in turn was based on costs orders made by Lander J in relation to interlocutory applications in the proceedings in March and April 2004. 12 The appeals are actions within s 60(2) and (3) of the Act and upon the making of the sequestration order on 21 January 2005 the prosecution or discontinuance of the appeals was in the hands of the trustee and not the bankrupt. Section 60(2), (3) and (4) of the Act provides as follows: '(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or (b) the death of his or her spouse or of a member of his or her family.' 13 The appeals do not fall within the terms of s 60(4) of the Act. 38 One of the issues before Lander J was whether Ms Lawton had resigned as a director of Manna Hill Mining Company. His Honour found that she had not. The bankrupt asserted that Ms Lawton had completed Centrelink forms in a way which indicated (or would indicate) that she had resigned as a director of Manna Hill Mining Company. The forms were not produced. This issue appears to have been raised at the trial. The issue is not referred to in the reasons for judgment of Lander J. 39 It is difficult to make anything of this because it is not clear precisely what the bankrupt is asserting or what was or can be established by evidence. The trustee was advised that the prospects of success on the appeal were not good and he appears to have adopted that view. The legal advice provided to him dealt with the bankrupt's assertions about the Centrelink forms and their completion by Ms Lawton. Nothing was established before me to suggest that the trustee placed inappropriate weight on this matter. 40 The bankrupt asserted that he was ill during the trial and that in all the circumstances, including the fact that he was not represented, the Judge erred in not adjourning the trial. The legal advice provided to the trustee dealt with this assertion and again, as with the previous matter, nothing was established before me to suggest that the trustee placed inappropriate weight on this matter. 48 The bankrupt submitted that the respondents to the appeals had stolen certain ore samples belonging to Manna Hill Mining Company, that they and others had acted illegally in breaking into his office and that Mr Iles, solicitor for the respondents, had given incorrect evidence before Lander J and acted improperly and illegally in a number of ways. The bankrupt sought to characterise the conduct of certain persons involved in events as illegal and improper but there is no evidence which would substantiate that conclusion. I take by way of example the alleged theft of certain ore samples by Mr Wilson and Ms Lawton. This allegation was the subject of findings by Lander J. His Honour found that Mr Wilson and Ms Lawton did what they did in order to preserve the company's assets. Nothing has been put before me to suggest that that conclusion is wrong. In any event, I am satisfied on all the evidence that the trustee has been independent and has considered in an objective and appropriate fashion the question of whether he should prosecute the appeals. 49 The bankrupt submitted that the appeals should proceed because he should be given the opportunity to restore his reputation. He referred to the comments Lander J made about him when considering his credibility as a witness. Those comments were certainly adverse to the bankrupt. I am prepared to assume for the purposes of argument and without deciding that restoration of reputation includes reputation damaged as a result of findings as to the credibility of the bankrupt in the proceedings. There is no suggestion in this case of the trustee being asked to assign any rights in relation to the appeals or of an indemnity for the costs of the appeals being offered to the trustee. Even if there were moneys in the estate a court 'would be unlikely to permit the bankrupt to pursue his personal interests in so far as they are not coincident with the due administration of the estate by the trustee, at the expense of the creditors': Cummings v Claremont Petroleum NL (supra) at 139 per Brennan CJ, Gaudron and McHugh JJ. This case is even stronger because there are no undisputed funds to pay for the prosecution of the appeals.


case_title: Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 1035

case_text: The applicants in the proceedings were successful and a number of orders were made by Lander J on 16 July 2004 and 30 July 2004 respectively. The orders made on 30 July 2004 were orders as to the costs of the proceedings and included an order that the bankrupt pay the applicant's costs on an indemnity basis. His Honour delivered reasons for his costs orders: Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1035.


case_text: Contemporaneous regulations have been called in aid in construing an Act in two comparatively recent decisions of the House of Lords: see Government of Canada v Aronson [1990] 1 AC 579 at 610 (per Lord Lowry) and British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 at 158; see also Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86 at 90.


case_title: Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86


case_title: Government of Canada v Aronson [1990] 1 AC 579


case_title: Hanlon v The Law Society [1981] AC 124

case_text: The principles that govern the use of regulations in construing the statute under which they are made were stated by Lord Lowry in Hanlon v The Law Society [1981] AC 124 at 193-194 as follows: (1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous. (2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. (3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation. (4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former. (5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify. (6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act. Number (4) is applicable to the present case.


case_outcome: distinguished

case_text: The respondents relied on Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42 ; (1951) 83 CLR 402. In that case the High Court held (at 410) that reg 188 of the Excise Regulations 1925 (Cth) were ultra vires the Excise Act 1901 (Cth) and void because regulations cannot vary or depart from the positive provisions made by the Act or... go outside the field of operation which the Act marks out for itself. The regulation in question was invalid because it imposed "a distinct and independent addition of liability to the liabilities which the legislature has provided" (at 412). 18 In the present case the respondents eschewed any argument that reg 2.14 was ultra vires and therefore void. 19 The present case is not like Morton where the statute covered the field and left no room for regulations. On the contrary, the scheme of both Old Act and New Act is to leave to the regulations questions of who may enforce.


case_text: The respondents' alternative argument is that reg 2.14 only operates prospectively. They say that at the time the alleged contraventions took place they had a "right" not to be vexed by litigation by anyone other than a party to an AWA. Citing Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 at 519, they contended that they had a "right to be free of a claim". They rely also on s 12(2) of the Legislative Instruments Act . 21 The expression quoted from Rodway appears in a context where their Honours are discussing limitation statutes and whether they should be given a retrospective operation to revive a cause of action which has become barred, or deprive a person of the opportunity of instituting an action which is within time. In such cases, giving the legislation a retrospective operation would operate so as to impair existing, substantive rights either the right to be free of a claim or the right to bring a claim and such an operation could not be said to be merely procedural. (Emphasis added.) 22 The actual decision in Rodway does not assist the respondents indeed to the contrary. Until its repeal on 26 November 1987, s 136(1) of the Criminal Code (Tas) required corroboration for conviction of certain offences. Before the date of repeal the appellant was charged with such an offence. He was committed for trial in 1988 and his trial commenced in 1989. The High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) unanimously held that the Code in its post-amendment form applied. Their Honours said at 521: ... ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. In the present case the respondents in September December 2005 either did or did not apply duress in relation to AWAs. If they did, they incurred a substantive obligation, the liability to such penalty as might be fixed by a court. They did not acquire any substantive right to have that obligation ascertained in some particular way, or only at the suit of some particular person or class of persons, any more than they acquired the right to be tried only by the law of evidence as it stood in December 2005. 23 For the same reason, the respondents acquired no "rights" in terms of the Legislative Instruments Act . 24 In any event, the presumption against retrospectivity is no more than that, a presumption which must yield to a clear expression of intent to the contrary. An issue of retrospectivity raises the question whether a law which on its face applies equally to past and future events must be read down as to apply only to the latter. In its terms reg 2.14 is solely concerned with involvement in proceedings for alleged contraventions under the Old Act. Such contraventions can only have happened before reg 2.14 came into operation. The whole purpose of reg 2.14 is to deal with past events.


case_text: In Thorn EMI Pty Ltd v Commissioner of Taxation (1987) 13 FCR 491 at 498 Beaumont J, in the context of the sales tax legislative scheme, said: It may be accepted, as a general proposition, that "the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised" (per Brennan J in Webster v McIntosh (1980) 49 FLR 317 at 321.) On the other hand, as Mason J observed in the course of argument in Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20 ; (1985) 156 CLR 651 at 652: One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is. In the present context, it has been settled since the decision in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54 ; (1934) 52 CLR 85 , that the Sales Tax Regulations are an essential part of the legislative scheme (see, especially, per Dixon J at 89). This approach was affirmed recently in Brayson Motors (supra, at 657) and it is unnecessary to pursue the questions which could arise in other contexts (cf Neill v Glacier Metal Co Ltd [1965] 1 QB 16 at 27; Jackson v Hall [1980] AC 854 at 884, 889; Bennion, opcit, at p 146). In my opinion, reference to the Sales Tax Regulations, including reg 14A(2), is not merely permissible; it is essential to an understanding of the legislative plan.


case_text: The appellant is a citizen of Bangladesh who claimed to fear persecution from the Awami League by reason of his involvement in the Bangladesh National Party ("BNP"). He also claimed to fear persecution from Jamat e-Islam which continued to harass people opposed to its fundamentalist beliefs and against whom no protection would be afforded. The written submissions advanced by the appellant rely largely on principles set out in the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592. 3 That case dealt with the question of procedural fairness. The High Court observed that an applicant is entitled to assume that issues which a delegate considered critical are the relevant issues which arise when the decision comes under review. In the absence of any indication by the decision-maker in the Tribunal to the contrary, the Court at [35] said that: '... unless some other additional issues are identified by the tribunal ... it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.' 4 In that case at [47] the Court noted that there should be an indication by the Tribunal sufficient to show that what an appellant says in support of the application is in issue. While it is not necessary to spell out all the matters which concerned the Tribunal, where there are specific aspects of an account that the Tribunal considers may be important to the decision and which may be open to doubt, the Tribunal must at least ask the applicant to expand on those aspects and explain why his or her account should be accepted. 5 The appellant says that this was not done in this case. I have considered the reasons for decision of the Tribunal and the transcript and other documents included in the appeal papers and, having regard to the transcript in particular and to the letter sent to the appellant by the Tribunal, I consider that the appellant was sufficiently alerted, from the manner and content of the questioning, the information sought and the reasons given for seeking that information, to the issues of concern to the Tribunal member. When the matter came on for hearing the appellant was invited to make any further oral submissions but, albeit understandably in the absence of any legal representation, was either unable or did not want to do so. The critical issue which was raised was whether the appellant had any past or present association with the BNP or any political party. The Tribunal was not satisfied on the material. In relation to other matters there are comments and reasons given and conclusions reached in relation to the appellant's overall credibility which are adverse to the appellant. 6 In my view and on my reading of the material I am not persuaded that there has been any reviewable error shown in the reasoning of the Tribunal, or in the approach taken by it in conducting the hearing and eliciting information, or informing the appellant of the matters which were in dispute. I note that in the notice of appeal the two grounds raised both depend on the decision in SZBEL . In the circumstances of this case, the reasoning underlying the principles expressed in SZBEL is not applicable because sufficient opportunity was given to the appellant to expand on those aspects in relation to which his case was rejected. 7 Accordingly, my conclusion is that since there was no error in the decision of the Tribunal and consequently no error in the decision of the Magistrate, the appeal is dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 28 May 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondents: Ms V. McWilliam Solicitor for the Respondents: Sparke Helmore Date of Hearing: 14 May 2007 Date of Judgment: 14 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/819.html


case_text: Commission relies on s 6 of the Trade Practices Act to extend the operation of s 45 to natural persons if their conduct relates to trade with Australia. This would make the liability of the individual respondents direct and not ancillary to that of the corporate respondents. There was some discussion of the availability of that section in Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (2007) ATPR p42-210. The Commission points to the various positions of employment of the individual April foreign respondents, the structure of the APRIL Group's operations, the nature of the meetings and the arrangements entered into to infer that the individuals were present on behalf of each of April FPT, April Holdings and April Management and that the relevant conduct was engaged in on behalf of those corporate respondents. Annexed to these reasons (Annexure A) is a chart provided by the Commission of the structure of the APRIL Group and the position of the individual April foreign respondents within that structure. The evidence supports the conclusions drawn in the chart as to the relationship of the corporations and individuals named. The evidence also provides the basis for an inference that Mr Lim and Mr Choo were officers of April FPT, April Holdings and April Management in the capacity of being very senior sales and marketing executives with regional, if not worldwide, responsibilities, so that the conduct of the individuals is attributable to those corporations.


case_text: question is whether, on the material before the Court, facts are established or inferences are open which, if translated into findings of fact, would support the relief claimed. The reference in these reasons to the evidence and conclusions should be understood as referring to what the evidence establishes and what conclusions may be drawn at a prima facie level. The material relied upon by the Commission is in the form of untested allegations and evidence but it is appropriate to proceed on the basis of them in order to assess whether facts are established and inferences can be drawn which would establish a prima facie case ( Beluga Shipping GmbH & Co KS "Beluga Fantastic" v Headway Shipping Ltd (No 2) [2008] FCA 1770 ; (2008) 251 ALR 620 at [32] per Rares J). The prima facie case against the April foreign respondents The Commission's case is that individuals employed within the APRIL Group and representing each of April FPT, April Holdings and April Management attended meetings of a club called the AAA Club at which price fixing agreements were made, being arrangements or understandings within the meaning of the Trade Practices Act and the Codes. The AAA Club refers to an alleged loose association or club, the members of which were the APRIL Group, the Advance Agro Group and the APP Group, as well as the Thai Paper Group and the UPM Group. The case made by the Commission is that the primary object of the AAA Club was to discuss and reach consensus about prices at which each group of companies would supply paper products in various markets, including Australia.


case_text: Commission needs to establish a prima facie case for the relief claimed. As the application for leave to serve outside the jurisdiction is interlocutory in nature, hearsay evidence is admissible ( Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [58]). It is not necessary to establish a prima facie case for the relief sought pursuant to each of the causes of action relied upon. It is sufficient if a prima facie case for the relief sought is made out for any one of the causes of action relied upon ( Bray at [47]-[55] per Carr J and [176]-[190] per Branson J).


case_text: any event, the Commission submits that the question of discretion is not the overriding consideration in the grant of leave to serve outside the jurisdiction. It relies on what was said by Finkelstein J in Brookfield Multiplex Limited v International Litigation Funding Partners PTE Ltd [2008] FCA 1769 at [7] to the effect that, if the conditions provided for in O 8 r 3 are satisfied, it usually follows that leave to serve outside the jurisdiction will be granted. As it was put by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at [3] , if the required conditions for leave are fulfilled, leave should be given in the absence of some countervailing consideration. Their Honours said at [10] that, provided the jurisdiction of the Court is engaged by an action in respect of subject matter with which the Court can deal, the action is instituted by an applicant who has standing, the action is not oppressive, vexatious or otherwise an abuse of process and the Court can assume jurisdiction over the defendant, the Court cannot refuse to adjudicate the dispute. Their Honours continued at [11] to express the opinion that it would be ' curious and anomalous if matters that could not be raised in answer to the appellant's claim by a defendant served within the jurisdiction could nevertheless be taken into account when deciding whether to allow service out of the jurisdiction '.


case_title: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425


case_text: proceeding is of a kind described in Item 13 of the Table to O 8 r 2. It is sufficient for the grant of leave if any one of the causes of action falls within an item in the Table to O 8 r 2 ( Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825 at [11] and [12] per Conti J). The Commission relies upon other items listed in the Table to O 8 r 2. It is not necessary for the purposes of this application to consider those further. Prima facie case for the relief claimed


case_text: The principles upon which the applicants rely are not in dispute. They are established in two authorities of the High Court and by a Canadian authority. The High Court authorities are Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [78] and Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 393. The Canadian authority is the decision in Canadian Aero Service Ltd v O'Malley 40 DLR (3d) 371 ( 'Canaero' ). The statements of principle in the Canaero decision were set out in the judgment of Laskin J at 382, as follows: In my opinion, this ethic disqualifies a director or senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that lead him to the opportunity which he later acquired.


case_title: Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373


case_title: Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165


case_title: Ridgeway International Ltd v McCullum (unreported, Supreme Court of New South Wales (Equity Division), Bryson J, 9 April 1998)

case_text: Canaero has been referred to in Australia with approval in the decision of Bryson J in Ridgeway International Ltd v McCullum (unreported, Supreme Court of New South Wales (Equity Division), 9 April 1998); see also Meagher R, Heydon D & Leeming M, Equity Doctrines & Remedies (4 th ed, Butterworths LexisNexis, 2002) at [5-100]. 8 No evidence was filed by the respondents to suggest that Mr Uhlen, or the other respondents, would suffer any hardship or inconvenience or any practical difficulties as a result of the continuation of Order 3(a). However, three matters were raised by Mr Greenwood SC who appeared for Mr Uhlen, and I will address Mr Greenwood's points. 9 First Mr Greenwood cross-examined Mr Wolfe, the Managing Director of Tennant, to suggest that the applicants would not be able to meet their undertakings as to damages. Mr Wolfe's evidence on this issue was not entirely satisfactory. It is true that he was given no advance warning, but I would have expected him to have a better knowledge of the financial position of the company than he revealed this morning. Nevertheless, I am satisfied on the basis of Mr Wolfe's evidence that the applicants are in a position to meet the undertaking.


case_text: By further amended application filed in the Federal Magistrates Court the appellant asserted that the Tribunal fell into jurisdictional error as it, in summary: 1. Denied the appellant procedural fairness by failing to invoke its power under s 427(1) to conduct any investigation in respect of the documents furnished by the appellant and upon which it placed no weight. The documents relevant to this submission were police and Court documents, and letters of support provided to the Tribunal post hearing. In relation to this submission the appellant relied on the decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 , where the Full Court found that, where a Tribunal found documents to be part of an elaborate fraud, but that the genuineness of documents could have been established by prompt investigation and there was no impediment to such an inquiry, a failure by the Tribunal to exercise the power under s 427(1)(d) was a denial by the Tribunal to conduct a fair proceeding. Counsel for the appellant contended in this case that there was an obvious need to make further inquiry, that no impediment existed to such an inquiry, that the concerns of the Tribunal could have been readily resolved, and that to do so otherwise was a denial of procedural fairness in accordance with the principles espoused in Applicant M164 [2006] FCAFC 16. 2. Did not provide the applicant, in accordance with s 424A Migration Act 1958 (Cth), the particulars of information the Tribunal considered was the reason or part of the reason for affirming the delegate's decision. 8 Section 427(1)(d) , upon which the appellant relied in relation to the first ground, reads as follows: (1) For the purpose of the review of a decision, the Tribunal may: ... (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. 9 Emmett FM noted that, since Applicant M164 [2006] FCAFC 16 , the Act had been amended to include s 422B. Section 422B is in Pt 7 Div 4 of the Act, and reads: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 10 Her Honour noted that, as a result of the enactment of s 422B , common law rules as to natural justice do not apply in relation to matters heard under the Act. Accordingly, it was not open to the appellant to find any jurisdictional error in the case before the Court on a denial of procedural fairness arising out of a breach of s 427(1)(d). 11 Further in relation to this ground, the appellant submitted that a failure to exercise discretion under s 427(1)(d) was a failure to comply with s 430 and a failure to act in accordance with s 420. The Federal Magistrate found the Tribunal explored concerns about police reports in a cogent manner and in the circumstances reasons to place no weight on documents were reasonable and not "slight". In relation to letters provided post hearing her Honour found that where letters departed from the assertions of the appellant the Tribunal's preference of the evidence of the applicant was an evaluation by the Tribunal of the evidence before it. It was open to the Tribunal to come to the findings and conclusions it did. There was no need for Tribunal to consider whether to exercise power under s 427(1)(d). The Federal Magistrate was far from being persuaded that a breach of s 427(1)(d) amounts to jurisdictional error or that the Tribunal committed a breach of s 420 or s 430. 12 In relation to the second ground, namely the alleged breach of s 424A , Counsel submitted that the Tribunal had regard to matters stated by the appellant in his protection visa application without giving written notice to the appellant of that information inviting his comment. Emmett FM said that not every piece of information that is a part of the decision is captured by s 424A only that information that is part of the reason for affirming the decision under review. In her Honour's view, it was clear that any inconsistency in the claims in the protection visa application with the appellant's claims before the Tribunal played no part in the reasons why the Tribunal did not accept that the appellant was falsely charged with a killing of a person in Bangladesh, or that he was assaulted by the BNP. Her Honour said the Tribunal stated the reasons for its decision, and they did not include the information identified by the appellant. Further, the only information to which the Tribunal had regard was evidence and material given by the appellant to the Tribunal for the purposes of the review, which is excluded from the obligations of s 424A by operation of s 424A(3)(b). 13 Accordingly, her Honour was of the view that she had no jurisdiction to interfere with the decision of the Tribunal, and dismissed the appellant's application. 14 By notice of appeal to this Court filed 3 October 2006 the appellant raised similar grounds as those which were raised before her Honour: 1. The Tribunal acted in breach of s 424A by not providing the appellant with particulars of information which was the reason or part of the reason for the decision of the Tribunal, in particular in relation to question 6 of the protection visa (whether the appellant had ever been charged with a criminal offence) referred to by the Tribunal at CB 94.2, and which was used to bolster its conclusion that the appellant did not face false charges and did not fear persecution at CB 104.1 and 105.9. 2. The Tribunal failed to discharge its duty in accordance with s 430 of the Act and failed to act in accordance with substantial justice and the merits of the case, in accordance with s 420 of the Act. 15 The submissions of the appellant were in terms however of error by her Honour as to her findings in relation to these grounds. 25 This ground of appeal is again substantially a restatement of the first ground of review before her Honour, in relation to which her Honour found against the appellant. In summary, the appellant submits that: • her Honour erred in finding that "it is not open to the Applicant to find any jurisdictional error in the case before this Court on a denial of procedural fairness arising out of a breach of s 427(1)(d)" by reason of the introduction of s 422B into the Act • her Honour's application of the Full Court's majority decision in Applicant M164 (2006) FCAFC 16 was misconceived in view of later Federal Court decisions applying the reasoning in Applicant M164 (2006) FCAFC 16 following the introduction of s 422B. Dr Azzi in particular drew the Court's attention to SZERH v MIC [2007] FCA 184 at [28] • the Tribunal committed jurisdictional error by not seeking to exercise its powers under s 427(1)(d) of the Act to require the Secretary to investigate the veracity of letters produced from various politicians which supported the claims of the appellant, where the need for such confirmation was "obvious" and where no impediments in terms of the addressee's location and details or issues of privacy and protection of the appellant dictated against the making of any such inquiries: Applicant M164 (2006) FCAFC 16. 28 As submitted, in my view correctly, by Mr Braham for the respondent, s 422B of the Act clearly provides that the rules of natural justice are exhaustively described in the provisions of Pt 7 Div 4 of the Act (cf comments of the Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61). Section 422B applies to applications for visas made on or after 4 July 2002 (Item 7 of Sch 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)), including the application before me. There are no provisions in Pt 7 Div 4 requiring the Tribunal to undertake an investigation in the form sought by the appellant, or entitling the appellant to such an investigation. As pointed out by the Full Court in Applicant M164 (2006) FCAFC 16 at [75] : Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.


case_text: Under s 424A "the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". However, the obligation does not apply to: • information which the applicant gives the Tribunal, regardless of when that information is given: s 424A(3)(b) , McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 175; or • all information the Tribunal receives. The section only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 40; McHugh J in SAAP 215 ALR at 175, Allsop J in SZEEU 150 FCR at 262.


case_text: As submitted, in my view correctly, by Mr Braham for the respondent, s 422B of the Act clearly provides that the rules of natural justice are exhaustively described in the provisions of Pt 7 Div 4 of the Act (cf comments of the Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61). Section 422B applies to applications for visas made on or after 4 July 2002 (Item 7 of Sch 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)), including the application before me. There are no provisions in Pt 7 Div 4 requiring the Tribunal to undertake an investigation in the form sought by the appellant, or entitling the appellant to such an investigation. As pointed out by the Full Court in Applicant M164 (2006) FCAFC 16 at [75] : Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_title: SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214

case_text: The first ground of appeal substantially restates the second ground of review before Emmett FM. Before me, the appellant submits that her Honour erred in finding the obligations under s 424A(1) were not enlivened. Dr Azzi for the appellant submitted in summary: 1. Emmett FM erred in finding that inconsistency as between the claims in the visa application and the appellant's claims before the Tribunal played no part in the reasoning of the Tribunal. 2. Emmett FM erred in finding that the information was caught by the exclusion in s 424A(3)(b). 3 . The Tribunal noted that the appellant claimed in his visa application that he has "never been charged with any offence that was currently awaiting legal action". However the appellant did not give his original protection visa application to the Tribunal; rather it was given to the Tribunal by the Department pursuant to s 418. 4 . The appellant's evidence at question 6 of the visa application was not adopted by the appellant at the hearing before the Tribunal, and needed to be adopted by the appellant before being deemed to have been given to the Tribunal by the appellant: NBKT v MIMA [2006] FCAFC 195. 5. The fact that the Tribunal expressly referred to the information in the visa application indicated that the information was sufficiently important to warrant specific mention: SZEEU v MIMA [2006] FCAFC 2 ; (2006) 150 FCR 214 at 253. 6. The Tribunal also treated the information in the visa application as supportive of its conclusion that the appellant had not been charged with a killing of a person in Bangladesh: NBKS v MIMA [2006] FCAFC 174 at [74] . 17 Under s 424A "the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". However, the obligation does not apply to: • information which the applicant gives the Tribunal, regardless of when that information is given: s 424A(3)(b) , McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 175; or • all information the Tribunal receives. The section only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 40; McHugh J in SAAP 215 ALR at 175, Allsop J in SZEEU 150 FCR at 262. 18 As Allsop J pointed out in SZEEU 150 FCR at 262 however: One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A , without any additional requirement....that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. 19 In SZEEU 150 FCR at 263 where an issue of inconsistency of prior statement arose, Allsop J also observed: If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. The significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). 20 In the context of this ground of appeal, the following issues in the Reasons for Decision of the Tribunal are relevant: • the Tribunal considered the details in his original application, including that false charges existed against him, but the Tribunal noted that elsewhere in his application "he said that he had never been convicted of a crime or offence and that he had never been charged with any offence that was currently awaiting legal action (see question 6 on Pt B of the application form)" • the Tribunal noted that on 5 April 2005 the appellant had produced to the Tribunal "copies of what purport to be the following documents: o a letter from a lawyer dated 16 December 2004 stating that a criminal case has been lodged against the Applicant, that a warrant has been issued for his arrest, that if he is arrested he will be put in gaol for a long time, that '[y]our enemy party worker's [sic] are trying to doom your life' and that in the circumstances his life will not be safe in Bangladesh o an 'Ejahar' (petition for filing a case) submitted by a Sub-Inspector of Police on 5 September 2001 stating that he was on duty at Joypara College Road when a disturbance took place between the Awami League and the BNP in connection with the election in which a man named Salim Bhyan (sic), Senior Vice-President of Dohar Thana BNP, was killed. The deposition names the Applicant, identified as Vice-President of the Dohar Thana Juba League, as one of those involved o a First Information Report (the initial claim or complaint which is the basis of an investigation) made by the same Sub-Inspector on the same date in relation to the same incident o a warrant issued by a magistrate in Dohar on 5 January 2002 for the arrest of the applicant in relation to the same case o an order for the attachment of the movable property of the Applicant issued by a magistrate in Dohar on the same date in relation to the same case o a memorandum submitted by a Sub-Inspector of Police reporting the execution of the order on 28 January 2002 which states, somewhat curiously, that '[a]ll members of the accused were absconding' o an order sheet purporting to record orders made by a magistrate in Dohar in relation to the above case which somewhat curiously refers to 'the convicted accused' o a 'Charge Sheet' dated 25 July 2002 in relation to the same case repeating the content of the Ejahar referred to above o a Post-Mortem Report dated 7 September 2001 in relation to Salim Bhuyan (sic), identified as Vice-President of the BNP of Dohar PS (Police Station), stating that the deceased suffered a stab wound in his left upper chest." • the Tribunal also noted that the applicant produced an undated letter faxed to him from Bangladesh "purporting to be from Md Mahbubur Rahman, General Secretary, Bangladesh Awami League, Dhaka Zila Unit, certifying that the Applicant is an activist of the Jubo League and stating that the BNP and Jamaat-e-Islami took powering 2001 through a rigged election....and that as part of this the Applicant has been implicated in concocted manslaughter cases" • the Tribunal said that the appellant had told the Tribunal that, so far as he was aware, all the answers in his original application were correct and complete • the Tribunal stated "The Applicant said that the charge against him in relation to the killing of the BNP supporter on 5 September 2001 was still pending. I asked him why he had said in his original application that he had never been charged with any offence that was currently awaiting legal action. The Applicant said that he had not been guilty of the offence. I noted that the question asked whether he had been charged with any offence. The Applicant said that when he had made his original application he had not had the details of the charges against him. He said that it had only been after he had come to Australia that he had obtained these details. I noted that the Applicant had been living at his home in Joypara until July 2002. The Applicant said that he could only have obtained the details of the charges against him by going to the court or to the police station and then he would have been arrested" • the Tribunal said "I put to the Applicant that it was a little difficult for me to accept that, if the police had wanted to arrest him, they would not have been able to do so before July 2002. The Applicant said that it was true that the police had wanted to arrest him but he had been very fortunate" • The Tribunal said that it put to the applicant that "the information available to the Tribunal indicated that forged or fraudulently obtained documents were readily available in Bangladesh. The police would work in collusion with applicants for refugee status in supplying bogus papers.... The Applicant said that he did not reject this information but at the same time you would get fraudulent documents in any country in the world" 21 In relation to the alleged false charges against the appellant, the Tribunal found, in summary: • it preferred the appellant's evidence to what was said in the letters to the extent of any inconsistency • it did not accept that the appellant had in fact been charged in relation to the killing of Salim Bhuyan because: o he "continued to live in his home town, Joypara, sometimes staying at relatives' or friends' houses, until July 2002 and I found his evidence with regard to how he managed to evade arrest unconvincing" o although "the Applicant said that when they had come to his home to arrest him he had just run out by the back door and that he had been very fortunate", the Tribunal did not accept that the police would not have been able to arrest him before July 2002 if they had wanted to o the appellant stayed in Bangladesh for a further two years after July 2002 o the appellant's conduct in working for a company which was his party leaders' organisation did not suggest that he was in fear of being arrested o despite the appellant's fear of being arrested he applied through a broker for a passport in what he said was his true identity, and the passport was issued in June 2004 o although "as the Applicants said there must be some genuine documents in Bangladesh.... I do not accept that he has been charged with the killing of Salim Bhuyan".


case_title: SZERH v Minister for Immigration and Citizenship [2007] FCA 184

case_text: This ground of appeal is again substantially a restatement of the first ground of review before her Honour, in relation to which her Honour found against the appellant. In summary, the appellant submits that: • her Honour erred in finding that "it is not open to the Applicant to find any jurisdictional error in the case before this Court on a denial of procedural fairness arising out of a breach of s 427(1)(d)" by reason of the introduction of s 422B into the Act • her Honour's application of the Full Court's majority decision in Applicant M164 (2006) FCAFC 16 was misconceived in view of later Federal Court decisions applying the reasoning in Applicant M164 (2006) FCAFC 16 following the introduction of s 422B. Dr Azzi in particular drew the Court's attention to SZERH v MIC [2007] FCA 184 at [28] • the Tribunal committed jurisdictional error by not seeking to exercise its powers under s 427(1)(d) of the Act to require the Secretary to investigate the veracity of letters produced from various politicians which supported the claims of the appellant, where the need for such confirmation was "obvious" and where no impediments in terms of the addressee's location and details or issues of privacy and protection of the appellant dictated against the making of any such inquiries: Applicant M164 (2006) FCAFC 16. 29 This comment of the Full Court survives the enlivenment of s 422B. However contrary to the submission of the appellant, s 427(1)(d) is an enabling provision for the benefit of the Tribunal, and does not impose obligations on the Tribunal. The decision of Siopis J in SZERH [2007] FCA 184 in no way supports the submissions of the appellant on this point. 30 In relation to s 420 in the context of the appeal I have nothing to add to the comments of her Honour at [45]-[49] of her Honour's Reasons for Judgment. 31 I find no error in the decision of her Honour in relation to this ground of appeal. 32 In my opinion, the appropriate order is to dismiss the appeal with costs. ORDERS 1. The name of the first respondent be amended to Minister for Immigration and Citizenship. 2. The appeal be dismissed with costs. I certify that the preceding thirty-two (32) 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: J Azzi Counsel for the Respondent: P Braham and L McBride Solicitor for the Respondent: Phillips Fox Date of Hearing: 27 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/2007/428.html


case_text: In VQAN , Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months '.


case_text: That is not the end of the matter, however, as the Court has a discretion to grant or refuse the extension of time sought if special reasons exist. Relevant factors include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal ( Jess v Scott (1986) 12 FCR 187; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] ).


case_title: Jess v Scott (1986) 12 FCR 187


case_text: The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ). 24 In M164/2002 the Tribunal ' received information from the appellant's husband in the course of the hearing ' (at [97]). Justice Lee concluded that, if the Tribunal relied on alleged inconsistencies between that evidence and the evidence of the appellant, it was bound to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, by reason of s 424A of the Act (at [99]). Justice Tamberlin agreed with the reasons of Lee J but did not comment further on this aspect. It is not clear to me that Lee J was saying that, where an applicant calls a witness to give oral evidence on her behalf, that is information outside the scope of s 424A(3)(b) any more than is a letter from a third person submitted by an applicant to the Tribunal in support of her application to the Tribunal. Justice Dowsett, who was in dissent, described at [186] what occurred as '[b] oth the appellant and her husband appear to have accepted that each was a relevant witness in establishing that case '. His Honour contrasted what occurred with information given "in evidence" by an applicant, to include all information put before the Tribunal by the applicant. An example of the latter was giving information to the Tribunal by calling a witness. Accordingly, I do not take Lee J as finding that evidence of a witness called by an applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.


case_text: In VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541 Heerey J considered the consequences of a very long delay. In that case, the delay was three and a half years and the explanation was detailed but his Honour did not consider that a satisfactory explanation had been proffered. In discussing the consequences of that delay, his Honour referred to Re Commonwealth of Australia; ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 where McHugh J observed at [16]: 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.' 27 In VQAN , Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months '.


case_text: It is strongly arguable that Ms Sit's evidence and the information in the protection visa application formed part of the reasons of the Tribunal in its rejection of the applicant's claims because it rejected her credibility. If so, there was a failure on the part of the Tribunal to comply with s 424A(1) in respect of that information, such information not having been put to the applicant in writing. The fact that the evidence was given in the applicant's presence and that she was given the opportunity to comment on it and on the inconsistencies with her evidence to the Tribunal does not avoid the obligation to comply with s 424A(1) and (2) ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [110] ). 23 The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ).


case_text: The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ).


case_text: It is strongly arguable that Ms Sit's evidence and the information in the protection visa application formed part of the reasons of the Tribunal in its rejection of the applicant's claims because it rejected her credibility. If so, there was a failure on the part of the Tribunal to comply with s 424A(1) in respect of that information, such information not having been put to the applicant in writing. The fact that the evidence was given in the applicant's presence and that she was given the opportunity to comment on it and on the inconsistencies with her evidence to the Tribunal does not avoid the obligation to comply with s 424A(1) and (2) ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [110] ).


case_title: VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541


case_text: With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319 at [42] ).


case_text: In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.


case_title: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630


case_title: Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773


case_title: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188


case_text: With respect to the second ground of appeal, the Tribunal referred to the evidence given by the appellants and the submissions made by their representatives. It considered the appellants' claims and gave its reasons for rejecting those claims. The appellants' fears arising from the publication of their role as police informants were rejected on credibility grounds. Their ethnicity and religious claims were rejected based on the Tribunal's consideration of independent country information. The Tribunal gave adequate and appropriate reasons for its decision in respect of those claims: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 180 ALR 1 at [68] . 26 In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.


case_title: NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319


case_title: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_title: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1


case_text: The appellants have not filed a transcript of evidence that demonstrates error on the part of the interpreter. In the absence of transcript or other suitable evidence, I cannot infer that the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing or errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. I can ascertain no breach of s 425 of the Act. See generally Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] . 23 The appellants did rely upon part of the transcript said to be "carried out by" the appellant husband. However, the appellant husband himself required an interpreter for the Tribunal hearing and before me. The Federal Magistrate considered this issue and implicitly found that the evidence of the transcript carried out by the appellant husband was not probative. The asserted errors in translation are based on the opinion of a person whose understanding of English was not of a sufficient level to undertake the task of translation. 24 To be accepted as having any probative value, evidence would need to be led by a person competent in English and Indonesian to indicate the matters that had been mistranslated or not translated at all. This has not been done. I can find no merit in the first ground of appeal.


case_title: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511