case_outcome: affirmed

case_text: 25 September 2009, the Federal Magistrate dismissed the Application: SZNSC v Minister for Immigration and Citizenship [2009] FMCA 945. In dismissing the Application , the Federal Magistrate not only resolved the remaining Ground ; he also considered the five Grounds as originally expressed in the Application as initially filed. The Federal Magistrate further concluded that none of these Grounds " were of any assistance to [the Applicant] ": [2009] FMCA 945 at [97] . A Notice of Appeal was filed in this Court on 13 October 2009. The Grounds of Appeal were there set forth as follows (without alteration): 1) The decision of Respondent is effected by the jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing appellant claims that respondent failed to analyse properly the "future harm" appellant may face if he go back to Pakistan. 2) The appellant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the respondent 1 decision. Respondent has not consider this aspect and therefore committed factual and legal error. 3) The respondent has failed to investigate application claim specially the grounds of persecution in Pakistan. Therefore the Respondent decision dated 6-6-2009 was effected by actual bias constituting jurisdictional error. 4) The Respondent decision was unjust and was made without taking into account the full gravity of appellant circumstances and the consequence of the claim. 5) The respondent denied the appellant procedural fairness by reaching adverse conclusion the appellant was not a witness of truth being conclusion the were not obviously open on the known material, without giving the appellant opportunity to be heard in respect of those matters. 6) The respondent had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the requirement of the Migration Act. 7) In term of order case the Respondents said that there is no basis to proof characteristic against Appellant, there is no basis of this as such the Respondent made an error in making this decision. The Grounds of Appeal , it will be noticed, have much in common with the Grounds upon which the Application was initially sought to be advanced before the Federal Magistrate — but abandoned or, at least, not pressed — and little (if anything) in common with the sole Ground which was ultimately advanced for resolution before the Federal Magistrate.


case_outcome: discussed

case_text: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).


case_outcome: cited

case_title: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 , 204 ALR 624

case_text: To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J. Differing factors have been identified in respect to whether a ground which has been expressly abandoned at first instance should later be permitted to be " resurrected " on appeal.


case_outcome: referred to

case_title: White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 , 96 FCR 511

case_text: are unquestionably instances where an argument has been permitted to be raised on appeal even though " unequivocally disclaimed " before the primary judge: e.g. CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been " an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable ": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35] , [2000] FCA 232 ; 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36] , [2007] FCA 765 ; 96 ALD 70 at 77.


case_outcome: applied

case_title: Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516

case_text: A critical factor in the exercise of the discretion is a consideration of the merits of the substantive application. This informs the exercise of the discretion and the nature of what amount to "special reasons" in any particular case. In considering the merits of the appeal, an applicant will not ordinarily have to demonstrate that there are reasonable prospects of success. The authorities to which Mr Bozic referred in his written submissions are to the effect that the Court will generally only exercise its discretion against granting leave if the appeal is so devoid of merit that it would be futile to extend time. This was said by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 ALR 516 at [7]. Other authorities to similar effect were set out in Mr Bozic's written submissions. 17 The Minister's solicitor submitted in her helpful written submissions that the four grounds of appeal appear to be hopeless and that no point would be served in granting an application for an extension of time. She observed that each of the four grounds appears to face difficulties of a number of authorities which would point against the success of the appeal. 18 Notwithstanding this, and bearing in mind that the delay is relatively short and has been explained in a way which I consider to be satisfactory, I think that there are special reasons. It is, in my view, sufficient to say that I do not consider the four grounds stated in the draft notice of appeal to be hopeless. I do not consider that there would be no point in granting the extension of time to argue those points on appeal.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: The leading authority on the question of the meaning of the term "special reasons" is Jess v Scott (1986) 12 FCR 187. The relevant passage of the judgment of the Full Court is set out at 195 and it has been cited on many occasions; it is not necessary for me to quote from the passage. 5 The proposed Notice of Appeal raises four grounds of appeal to which I will refer later. It is sufficient to say that the four grounds seek to re-agitate the matters upon which the applicant was unsuccessful before Cameron FM. 6 The Minister opposes the application on two bases. First, the Minister's solicitor submits that the applicant has not established special reasons within the test stated in Jess v Scott . She submits that mere inadvertence of itself does not amount to a special reason.


case_outcome: distinguished

case_text: In Minister for Immigration and Multicultural Affairs v Kabail (1998) FCA 1320 (" Roda Kabail "), Tamberlin J declined to exercise his discretion to extend time under the rule. The Minister places considerable reliance upon the decision. It is true that Tamberlin J said in Roda Kabail that, essentially, the basis that was put forward for the application was one of inadvertence. His Honour went on to say that this of itself is not sufficient to establish a special reason, but it is important to note that he also observed that inadvertence can, of course, be taken into account. 8 It seems to me that the decision in Roda Kabail is distinguishable from the present application. As Tamberlin J observed in his reasons for judgement: In the final analysis little real assistance can be gained from comparing different factual situations. The characterisation of "special reasons"...is a matter which is both discretionary and fact specific. 9 In Roda Kabail the application for an extension of time was made by the Minister, and his Honour observed that a significant difference between that case and the other ealier authorities that were referred to was that the applicant in the proceedings was held in detention with her three children. That was a matter which his Honour weighed heavily in the balance against the exercise of the discretion. However, here it seems to me that the circumstances are sufficiently different so that, to adopt Tamberlin J's language, the fact situation in that case is of "little real assistance" to me in dealing with this morning's application.


case_text: In my view, the approach which is to be adopted in applications such as this is that which was stated by a Full Court in WAAD v Minister for Immigration &Multicultural Affairs (2002) FCAFC 399 at [7] . The Full Court in that case observed that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. A number of authorities were cited in support of that proposition. Their Honours went on to say that: So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. 11 Here the delay is comparatively short and there is, in my view, an acceptable explanation for it. I will come back to that shortly. That is one of the factors to be taken into account in the exercise of the Court's discretion. 12 Another is the question of whether the respondent to the proceedings has suffered any prejudice by reason of the delay. Here the Minister does not point to any prejudice other than the need, if an extension of time is granted, to resist an appeal which, on the Minister's submission, is a hopeless one. Again, I will return to that issue later.


case_outcome: followed

case_text: An extension of time is necessary because there is an implied time limit of 21 days after the date of the interlocutory judgment in which to file an application to this Court: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] per Lindgren J. 9 It is considered that the Application for Leave to Appeal to this Court should be dismissed. 10 There has been no explanation forthcoming as to why the Application was not filed within time. The First Applicant appeared in person before this Court unrepresented, although he did have the benefit of an interpreter. He was not only present when the Federal Magistrate dismissed the application to that Court; he was also aware at that time that there was a time limit within which any application to this Court was to be filed. The only explanation for the delay which was advanced was his belief that his " lawyer " would do that which was necessary. The " lawyer ", however, was someone he had never met, but a person to whom a " fee " was apparently paid.


case_text: An amended application as filed in the Federal Magistrates Court on 19 May 2008 contended that the Tribunal had failed to comply with s 425 of the 1958 Act. The First Applicant appeared before the Federal Magistrates Court on that date but the application was dismissed: SZLYO v Minister for Immigration [2008] FMCA 691. The application was dismissed under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 4 An Application for Leave to Appeal was filed in this Court on 3 July 2008. 5 There are two difficulties confronting the Applicants -- first, it is necessary to obtain leave to appeal; second, an extension of time is necessary in order to make any such application.


case_text: called "post contractual" conduct is admissible on the question whether a contract has been formed: Howard Smith & Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668-669, 672 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [25] .


case_title: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153


case_text: reasonable observer's answer would be the same if the matter is approached more broadly than by way of the confines of offer and acceptance. While offer and acceptance may be the primary mode of ascertaining the existence of an agreement, in an appropriate case, including where there is no readily identifiable offer and acceptance, a court may look at the matter more broadly by asking whether, objectively and having regard to the totality of the dealings between the parties, they should be considered to have entered into a contractual relationship without inquiring too closely into the formalities of offer and acceptance: see Cheshire and Fifoot's Law of Contract (9th ed, LexisNexis, 2008) at 97 and Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 79-83. For the reasons given at [8], the objective observer would not conclude that the fax enabled Mr Furman's approval alone to bring a concluded agreement into existence.


case_title: Howard Smith & Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68


case_title: Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32


case_text: Telstra submits that procedural fairness requires a decision-maker to disclose to an interested party the substance of material that is significant, relevant, credible and obtained from a source other than that party (citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ( Kioa v West) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ( VEAL )). As formulated, the submission is based on the High Court judgment in VEAL at [14]-[18] which refers to the judgment of Brennan J in Kioa v West at 628-629. Brennan J there referred to adverse information that is credible, relevant and significant which the decision-maker possesses and proposes to take into account. VEAL concerned an unsolicited letter from a third party which had been forwarded by the Department of Immigration and Multicultural and Indigenous Affairs to the Refugee Review Tribunal. 484 In my respectful opinion neither Kioa v West nor VEAL is of direct relevance to the present case, which is not one of "information" of the kind referred to in them. The relevant information that ACCC "possessed" was that Telstra had implemented a churn process that required the participation of both the losing and gaining access seekers, and that neither Telstra (Bigpond) nor Request were participants in that process. This information came from Telstra or was at least known to Telstra. Furthermore, Telstra knew that ACCC's objective was to avoid disconnection charges in the case of an end-user switching service providers, and the information referred to was of obvious relevance to that objective. The procedural fairness issue raised in the present case concerns the solution arrived at and the reasoning process that led to it. This is a different area of discourse from that of information received by a decision-maker from a third party.


case_text: The particular criterion relevant to the present circumstances is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required. In Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 , Toohey J said (at 493-494): In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence is believed would most probably affect the result; ... [my emphasis] In Daniel , RD Nicholson J stated (at 269) that it must be shown that the new evidence, if accepted, would " most certainly affect the result" (my emphasis).


case_text: Both parties refer to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ( Bond ) in which Mason CJ discussed whether a finding of fact can constitute a reviewable decision, and when a finding of fact can constitute an error of law that contributes to a reviewable decision. 392 In respect of both, Mason CJ stated (at 340-341): ... in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more that a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s. 5(1)(f) and (h) [of the ADJR Act]. In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. 393 His Honour went on to explain when a decision involves an error of law (at 353): A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law ... the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact ... [that] were made. 394 Later in his Honour's reasons, the Chief Justice stated (at 355) that findings of fact, including inferences, will have involved an error of law where there was no evidence or other material to justify the making of the finding (see s 5(1)(h) of the ADJR Act). His Honour noted (again at 355) that the question whether there is any evidence of a particular fact, or whether a particular inference can be drawn from facts found or agreed, is a question of law, and that in the context of judicial review it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. After quoting from Menzies J in Reg v District Court; Ex parte White [1966] HCA 69 ; (1966) 116 CLR 644 at 654, Mason CJ concluded (at 356) that according to the Australian authorities, at common law want of logic is not synonymous with error of law, and that so long as an inference is reasonably open, even if drawn as a result of illogical reasoning, there is no place for judicial review for error of law. 395 In oral submissions, senior counsel for Telstra stated that Telstra relied on the "common law no evidence" ground as expressed by Mason CJ in Bond . 396 As mentioned previously, Telstra submits that there was no evidence to support ACCC's finding that Telstra was already fully recovering its line costs. 397 Although Telstra accepts that ACCC had expressed its view that Telstra was recovering its line costs at various times prior to the making of the Final Determination, it contends that it would be unsafe to assume that the support for that view continued to be available at the time of the Final Determination. For example, Telstra notes that the ADC (referred to at [351] above) had been "discontinued" (see ACCC's Final Determination for model price terms and conditions of the PSTN, ULLS and LCS services of October 2003, section 8.8, pp 60-61). Although at the time of its discontinuance, ACCC concluded that Telstra would still recover its line costs even without the ADC, Telstra's point is that Telstra operates in a "dynamic industry" and that its line costs and sources of recovery may change over time. 409 If I had found that Telstra was denied procedural fairness, or that ACCC had made an error of law, Telstra would still need to show that there was at least a possibility that a different result might have been reached: Bond at 353; ex parte Aala at [80].


case_text: A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)


case_title: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576


case_text: Jurisdictional error occurs where a decision-maker fails to exercise the jurisdiction it has by making or refusing to make an order or decision by reason of "a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction" ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177). In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said that there was a failure to exercise jurisdiction where the decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] a 'wrong and inadmissible test' ... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'". This description of constructive jurisdictional error was approved by Guadron J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [80] .


case_text: The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney & Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ). 209 The particular criterion relevant to the present circumstances is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required. In Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 , Toohey J said (at 493-494): In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence is believed would most probably affect the result; ... [my emphasis] In Daniel , RD Nicholson J stated (at 269) that it must be shown that the new evidence, if accepted, would " most certainly affect the result" (my emphasis).


case_text: The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney & Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ).


case_text: Telstra refers to East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 239 ALR 50. The factual context was not alien to that of the present case "a national access regime for gas pipeline systems within the framework of a national competition policy" (headnote, p 50). The facts and legislation are complex. Central to the issue for decision was s 8.10 of the National Third Party Access Code for Natural Gas Pipeline Systems contained in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA). Section 8.10 listed in paras (a) to (k) eleven factors that were required to be considered when the initial capital base of certain pipelines was being established by a "Relevant Regulator". 117 The High Court held that the Australian Competition Tribunal had not erred in taking as its starting point, and giving priority to, known valuation methodologies identified in the early paragraphs of paras (a) to (k). 118 The case is not authority for the proposition that para (d), for example, of s 152CR(1) must be accorded priority over the matters identified in the other paragraphs of that subsection. The most that can be said is that the case shows that the correct approach to a list of mandatory relevant considerations can lead to priority properly being given to particular matters in the list.


case_title: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416


case_text: In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166.


case_text: In Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 ( Idonz ), the Court refused an application by the respondents to an appeal to reopen the hearing of the appeal to allow them to call fresh evidence. One reason given by Fox J, with whom Everett J agreed, was that the evidence had been available when the appeal was heard. Other reasons given by Woodward J (in relation to the application by the second and third respondents) were that the evidence would be complex, contested and not appropriate for consideration by an appellate court, and that the evidence would have added little probative value to material already before the Court and would have related only to the possible exercise of discretion against the appellant if it were otherwise successful in its appeal. 211 Idonz is both different from and similar to the present case. In the present case, the evidence is sought to be tendered at trial, was not available at the time of hearing, and consists simply of two documents. On the other hand, the evidence relates to the possible exercise of discretion against Telstra if it were otherwise successful on Telstra's Cost Model G\rounds. Moreover, as appears below, complex questions as to the probative value of those documents are raised. 212 Telstra submits that Request erroneously states the test as to the circumstances in which relief may be refused on discretionary grounds where a judicial review ground vitiating a decision (relevantly, a failure to take into account a relevant consideration and a denial of procedural fairness) is established. Telstra submits that to ask whether it "would have made any difference" if that ground had not existed involves legal error. 213 Telstra submits that where there is a failure to take into account a relevant consideration, relief will be refused only if that consideration was so insignificant that the failure to take it into account could not have materially affected the decision. I referred to the relevant authorities in relation to a failure to take into account a relevant consideration at [192] above.


case_text: The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney & Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ). 480 In my opinion, Telstra's Ground 8 is not made out. Telstra's Ground 9(a) and (b) General 481 The relevant facts were set out in relation to Ground 8 above. 482 As the parties agree, the Act does not dispense with ACCC's obligation to accord Telstra procedural fairness.


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: Telstra points to the fact that no officer of ACCC was called to give evidence that regard was had to the two Spreadsheets. Telstra refers to the "rule of evidence" associated with Jones v Dunkel (1959) 101 CLR 298 at 305, 308, 320-321. That rule has been recognised as having scope for operation in applications for judicial review of administrative decisions: see the authorities cited in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61. In that case the Full Court stated (at 62): The application of the rule requires ... that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence. 182 I therefore do not think the principle recognised in Jones v Dunkel is appropriately invoked in the present circumstances. Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia is distinguishable. Unlike ACCC, the Minister was not arbitrating a dispute pursuant to an arbitration regime laid down by statute.


case_text: Telstra submits that procedural fairness requires a decision-maker to disclose to an interested party the substance of material that is significant, relevant, credible and obtained from a source other than that party (citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ( Kioa v West) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ( VEAL )). As formulated, the submission is based on the High Court judgment in VEAL at [14]-[18] which refers to the judgment of Brennan J in Kioa v West at 628-629. Brennan J there referred to adverse information that is credible, relevant and significant which the decision-maker possesses and proposes to take into account. VEAL concerned an unsolicited letter from a third party which had been forwarded by the Department of Immigration and Multicultural and Indigenous Affairs to the Refugee Review Tribunal. 484 In my respectful opinion neither Kioa v West nor VEAL is of direct relevance to the present case, which is not one of "information" of the kind referred to in them. The relevant information that ACCC "possessed" was that Telstra had implemented a churn process that required the participation of both the losing and gaining access seekers, and that neither Telstra (Bigpond) nor Request were participants in that process. This information came from Telstra or was at least known to Telstra. Furthermore, Telstra knew that ACCC's objective was to avoid disconnection charges in the case of an end-user switching service providers, and the information referred to was of obvious relevance to that objective. The procedural fairness issue raised in the present case concerns the solution arrived at and the reasoning process that led to it. This is a different area of discourse from that of information received by a decision-maker from a third party. 485 A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)


case_text: The relevant test was described by Mason J in Peko-Wallsend at 40: Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. More recently, a Full Court of this Court in Martincevic v Commonwealth (2007) 164 FCR 45 observed (at [68]) that: It is not for the court to guess what view [the decision-maker] would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision.


case_text: In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 ( Peko-Wallsend ), Mason J emphasised (at 41) that it is generally a matter for the decision-maker and not for a court to determine the appropriate weight to be given to the respective matters that are required to be taken into account in the exercise of a statutory power. His Honour noted that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance, but that in such a case the relevant ground of review is not the failure to take into account a relevant consideration or the taking into account of an irrelevant one, but that the decision is "manifestly unreasonable". Telstra does not rely upon a ground of manifest unreasonableness. 122 Section 152CR(1) provides that in making a final determination ACCC must take into account the seven matters listed in paras (a)-(g) of that subsection and s 152CR(2) provides that ACCC may take into account any other matters that it thinks are relevant. Also, s 152AQA(6) provides that ACCC must have regard to the LSS Pricing Principles if it is required to arbitrate an access dispute. The factor that should be given "fundamental weight" as against the others is the LTIE mentioned in para (a) of s 152CR(1) because s 152AB(1) provides that the object of Part XIC is "to promote the [LTIE]...". 123 "Telstra's cost model" to which Grounds 1, 2(a) and 3 refer, is described in an affidavit of Iain Robert Little, Group Manager Economic Analysis for Telstra, as comprising two Microsoft Excel Spreadsheets on a CD which estimate Telstra's top-down LSS-specific costs and calculate a per-unit cost for the LSS. Telstra provided the CD to ACCC. The words and figures on each of the two Spreadsheets constituted only a short vertical column or table. In the hard copy version in evidence, each occupied about half a page. 157 Request points out that Telstra can succeed on the "relevant consideration" ground only if ACCC was bound to take Telstra's cost model into account and that doing so "could" or "might" have had a material impact on the outcome: see Peko-Wallsend at 30-31 (Gibbs CJ); 39-40 (Mason J). 158 Section 152CR(2) allowed ACCC to take into account any matters it thought relevant. In Peko-Wallsend at 39-40, Mason J stated that where factors to be considered enumerated in a statute are not exhaustive, the Court should turn to the subject matter, scope and purpose of the statute in determining what matters a decision-maker is bound to take into account. Telstra submits that in the present case this approach leads to a conclusion that ACCC was bound to take into account Telstra's cost model because it was central to the issues that ACCC was required to determine and to matters that it was expressly obliged to take into account, for example Telstra's "direct cost" of providing access to the LSS (see s 152CR(1)(d)). 159 In its submissions, Telstra did not draw a clear distinction between the course of reasoning by which it contends that s 152CR(2) coupled with general law principles produced the result that ACCC was bound to take into account Telstra's cost model, and the course of reasoning by which it contends that s 152CR(1)(d) produced that result. 160 I turn now to the duty imposed by s 152DB(1)(b). Telstra submits that s 152DB(1)(b) (set out at [42] above) supports its case while Request submits that, if anything, it assists the respondents. Provisions such as s 152DB(1)(b) are troublesome. It is questionable whether ultimately they have any effect at all in shaping the duty incumbent on a decision-maker. The starting point in s 152DB(1)(b) is a legislative demand for speed, but apparently someone appreciated that speed can come at too great a cost, and so the demand for speed is reduced to a demand that ACCC "must act [only] as speedily as a proper consideration of the dispute allows". In order to make it plain that excessive speed is to be shunned, it is acknowledged that ACCC must inquire into and investigate the dispute "carefully". Apparently it is then thought that too much care may detract from the desideratum of speed, so the words "and quickly" are added after "carefully". Adding to the confusion is the legislature's comprehensive demand that ACCC "inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute" (my emphasis). The demand is that ACCC inquire into and investigate all matters affecting the merits of the dispute and all matters affecting the fair settlement of the dispute. 192 The relevant test was described by Mason J in Peko-Wallsend at 40: Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. More recently, a Full Court of this Court in Martincevic v Commonwealth (2007) 164 FCR 45 observed (at [68]) that: It is not for the court to guess what view [the decision-maker] would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision. 561 Second, in exercising the discretion under s 152DNA(7)(b), ACCC must take into account relevant considerations that ACCC is required to take into account in the light of the subject matter, scope and purpose of the Act (citing Peko-Wallsend at 39-40 in support of this proposition). True backdating under s 152DNA(1) is merely adjectival to the making of a final determination under s 152CP and ACCC is required to take into account the matters specified in s 152CR(1) both when making the final determination and when exercising its discretion in respect of backdating that determination. According to Telstra, if this were not so, backdating could undermine ACCC's findings and its balancing of the matters identified in s 152CR(1). Resolution 562 In my opinion, cl 5A(i) was not merely an exercise of the backdating power to which s 152DNA(7) applied, and s 152CR(1) and s 152AQA(6) did not apply. 563 There is a distinction between the backdating power contained in s 152DNA(1) and the power to decide upon the substantive provisions of a final determination that is recognised in s 152CR(1) and (2) on the one hand, and s 152DNA(7) on the other. The latter is addressed to substantive provisions which it assumes have been decided upon following the application of the s 152CR(1) and (2) criteria.


case_title: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40


case_text: I regard s 152DB(1) as a general exhortatory provision: it exhorts ACCC to strive to achieve broad objectives. Some of those broad objectives, at least if regarded in isolation, are antithetical to one another. The notions of "speed", "proper consideration of the dispute", "careful inquiry and investigation", "quick inquiry and investigation", "inquiry into and investigation of ... all matters affecting the merits" (my emphasis) and "fairness" pull in different directions: cf the discussion of ss 420 and 476 of the Migration Act 1958 (Cth) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J) at 39-41, and see Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J.


case_text: Telstra submits that it cannot be assumed that ACCC "would have" decided in relation to Telstra's cost model in the same way in the Request/Telstra and Adam/Telstra arbitrations. Each arbitration must be decided on its own merits and there is no principle of stare decisis in administrative decision making. Telstra cites statements by Tobias JA in Segal v Waverley Council (2005) 64 NSWLR 177 at [96] and by Deane J in Nevistic v Minister for Immigration & Ethnic Affairs (1981) 34 ALR 639 at 646-647, generally to the effect that an administrative decision-maker must decide each case on its facts and merits, and must not blindly follow a fixed policy. It seems to be inherent in the submission that it should be accepted that ACCC may properly determine different charges for the supply of the (identical) LSS by Telstra to different access seekers, such as Request and Adam.


case_text: In so far as Telstra relies on an alleged failure by ACCC to seek further material from Telstra, Request submits that ACCC's decision would be vulnerable to attack under the ADJR Act for a failure in this respect only if the failure was so unreasonable that no reasonable decision-maker would have failed to make the inquiry (Request cites Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-170). Telstra's Ground 1 To what extent, if at all, did ACCC in fact engage with the Telstra cost model? 168 Request puts its submission that ACCC engaged with Telstra's cost model in two ways. First, it submits that it should be inferred that ACCC did in fact read the Spreadsheets on the CD, but did not appreciate that they were the complete or final version of Telstra's cost model that was referred to in Telstra's submissions. Second, it submits that the FD Statement of Reasons shows that ACCC took into account the essential features of Telstra's cost model that were reflected in the Spreadsheets, even if it did not read the Spreadsheets themselves. 169 Request submits that the passages from the FD Statement of Reasons on which Telstra relies (section 4.1.8, the relevant extracts from which were set out at [152] and [153] above) show only that ACCC considered that it had not received from Telstra the complete or full version of Telstra's cost model that it was expecting to receive. Request argues that Telstra ignores the heading's use of the word "Summary" and the simplistic nature of the two Spreadsheets which Telstra now characterises as constituting the cost model.


case_text: Telstra also referred to other authorities such as R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327 ; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and Epic Energy .


case_text: In support of this "fundamental weight" submission, Telstra relies on R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 ( Sean Investments ) which concerned s 40AA(7) of the National Health Act 1953 (Cth). That Act provided for the approval of premises as nursing homes, and made approval subject to a condition that the fees charged in respect of nursing home care of a "qualified nursing home patient" would not exceed fees payable in accordance with a scale determined by the Permanent Head of the relevant Department. Section 40AA(7) directed the Permanent Head to "have regard to costs necessarily incurred in providing nursing home care in the nursing home". 114 Mason J held that those words required the Permanent Head to take those costs into account and "to give weight to them as a fundamental element in making his determination" (at 329). His Honour gave two reasons for this conclusion. First, they were the only matter explicitly mentioned as a matter required to be taken into account, and second, the scheme of the provisions was that once premises were approved as a nursing home, the proprietor was bound by the conditions of approval not to exceed the scale of fees fixed. His Honour observed that in many cases it was to be expected that the scale of fees would be fixed by reference to the costs necessarily incurred plus a profit factor, and that in the nature of things the costs necessarily incurred were a fundamental matter for consideration. 115 Sean Investments is distinguishable. It is readily understandable that the fees to be fixed must cover the costs necessarily incurred in providing nursing home care in the particular nursing home. Approval of the particular nursing home would be frustrated if the level of fees permitted to be charged did not cover those costs. In the present case, there are a range of factors that ACCC is required to take into account.


case_text: ACCC made submissions only in relation to issues of law of general importance relating to its power and procedures under the Act, and other exceptional matters. ACCC referred to the principles established in R v The Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 ( Hardiman ) at 35-36 as the reason for its limited participation. ACCC's submissions related to aspects of Section A (Telstra's Cost Model), Section B (Invalidity of Final Determination) and Section F (Disconnection Charges, Backdating and the "No Charge Period"). (ACCC also addressed submissions to Telstra's Ground 11, but, as noted previously, that ground is no longer relevant). 103 Request concedes that the Final Determination is amenable to review under the ADJR Act. No party addressed submissions independently to s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). In its written closing submissions, Request for the first time submitted that it was "unlikely" that the Court had jurisdiction under s 39B(1) of the Judiciary Act on the ground that ACCC, as distinct from its Commissioners, was not an "officer of the Commonwealth". Nothing turns on the point. In addition to its jurisdiction under the ADJR Act, the Court has relevant jurisdiction under s 39B(1A)(c) of the Judiciary Act and s 163A of the Act. 104 Within Div 8, the "Arbitration of access disputes" is the subject matter of Subdiv C (ss 152CO-152CU) and the "Procedure in arbitrations" is the subject matter of Subdiv D (ss 152CV-152DMA). 180 Request responds by referring to the limited role permitted to a decision-maker such as ACCC in defending its decisions: see Hardiman at 35-36. The role of ACCC is one of arbitrating an access dispute between a carrier or carriage service provider and an access seeker. 181 In my opinion, the counsel given to administrative tribunals by the High Court in Hardiman applied to ACCC in that role. As noted at [102] above, ACCC has led no evidence, and has made submissions only on particular issues that it has perceived to be of general importance in relation to its powers and procedures. ACCC informed Request and Telstra prior to the hearing that it would act in accordance with Hardiman . It was open to Telstra or Request to subpoena ACCC officers to attend to give evidence or to produce documents. The absence of more direct evidence of the course of ACCC's deliberations is not to count against either of them more than it is against the other.


case_title: R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327


case_text: On the hearing there was a suggestion that there may be a difference between a legislative requirement to "take into account" something and a legislative requirement to "have regard" to something, one being more demanding than the other. I do not agree (see Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 ; (2002) 24 ATPR 41-886 ( Epic Energy ) at [55]). I am not persuaded by the fact that within Pt XIC itself the legislature has sometimes used one expression and sometimes the other (compare, for example, s 152AB(2) at [17] above and s 152CR at [40] below). I will use the expressions interchangeably. 20 It will be noted that subs (3) of s 152AB makes the list in subs (2) an exhaustive list of the matters to which regard may be had for the purpose of determining whether a particular thing promotes the LTIE. 21 Subsections (4) and (6) of s 152AB identify certain matters to which regard must be had in connection with the subs (2)(c) and (e) considerations respectively, but subss (5) and (7) respectively make it clear that subss (4) and (6) do not limit the matters to which regard may be had. 119 Telstra also referred to other authorities such as R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327 ; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and Epic Energy .


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57

case_text: Jurisdictional error occurs where a decision-maker fails to exercise the jurisdiction it has by making or refusing to make an order or decision by reason of "a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction" ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177). In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said that there was a failure to exercise jurisdiction where the decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] a 'wrong and inadmissible test' ... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'". This description of constructive jurisdictional error was approved by Guadron J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [80] .


case_text: In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166. 409 If I had found that Telstra was denied procedural fairness, or that ACCC had made an error of law, Telstra would still need to show that there was at least a possibility that a different result might have been reached: Bond at 353; ex parte Aala at [80].


case_title: Segal v Waverley Council (2005) 64 NSWLR 177


case_text: A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)


case_title: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100


case_text: In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166.


case_title: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J)


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152


case_title: Tickner v Chapman (1995) 57 FCR 451

case_text: Telstra submits that in order for ACCC to take Telstra's cost model into account, it had to engage in an "active intellectual process" in relation to it. In support, Telstra refers to Tickner v Chapman (1995) 57 FCR 451 at 462, 464 per Black CJ and Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277-279 per Finn J. 185 As Black CJ observed in Tickner v Chapman (at 462-463), "[t]he degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance". 186 The question arises whether, in the light of my factual conclusions above, ACCC's consideration of Telstra's cost model was sufficient to amount to an "active intellectual process". More specifically, did an "active intellectual process" require ACCC to manipulate or sensitivity test Telstra's cost model? 187 Telstra points to statements made by ACCC in the context of ACCC's consideration of similar cost models in regulatory matters, which Telstra says demonstrate the importance that ACCC places on sensitivity testing in order to gauge the value of cost models. In my view, evidence of this kind shows only that in the circumstances of those matters and those models ACCC considered that sensitivity testing assumed some importance.


case_text: Telstra submits that in order for ACCC to take Telstra's cost model into account, it had to engage in an "active intellectual process" in relation to it. In support, Telstra refers to Tickner v Chapman (1995) 57 FCR 451 at 462, 464 per Black CJ and Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277-279 per Finn J.


case_text: The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney & Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ).


case_text: I dismissed the appeal in this proceeding on 8 May 2006: see MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507. Due to illness, the first appellant (who is the mother of the second and third appellants) was unable to appear when judgment was delivered. Since she had not been heard on the question of costs and it appeared that she might wish to be so heard, I directed my associate to send a letter to the appellants informing them that, if they wished to make any submissions on costs, they should file written submissions. 2 On 15 May 2006, the first appellant filed submissions stating that: "I wish to bring the following facts for your kind consideration regarding the costs. 1. I am a single mother with two young daughters and currently depending financially on my sisters and mother. 2. I have no working rights and enclose a copy of my E class bridging visa. Under the circumstances I humbly request you to consider my case and waive the costs." 3 On 18 May 2006, the first respondent filed brief submissions contending that an inability to meet a costs order is not a reason for a departure from the usual rule that costs follow the event.


case_text: The Court has an unfettered discretion regarding costs orders, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.


case_text: A successful litigant is, therefore ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 86 per Gaudron and Gummow JJ; at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The inability of the unsuccessful party to meet costs is generally not a sufficient reason to deprive the successful party of a costs award. In Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 , Nicholson J said: "[I]t is contended for the applicant that as he has been in detention since arriving in Australia he has no assets in this country, an order against him would be futile. No evidentiary foundation exists for a finding of futility. Even if the proper inference to be drawn from the applicant's detention is that such an order would be futile, I do not consider that would amount to special circumstances warranting the making of a different order. Here the applicant chose to comprehensively argue his case and expose himself to the risk of costs. Having failed, any futility of collection is not a reason for an order to the contrary." The same principles apply here. The appellants have not shown a proper basis to justify the Court in making other than the usual costs order.


case_title: Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469


case_text: Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634 (Appleglen ) at 635-6, Pincus J determined upon a deed of guarantee executed by the directors of the applicant company, which was the trustee of a family trust, subject to a monetary limit. The present case In the present case security has been offered in the form of a deed of guarantee, unlimited as to amount, executed by Mr Fitzsimons in favour of the respondents. As an alternative, he has offered to submit to being joined as a party and, by implication, to the making against him of any order that is made against Instyle for payment of the respondents' costs. Mr Fitzsimons has resisted, on grounds of confidentiality, disclosure of his financial affairs, although some details emerged incidentally from the evidence. He has a 1/100 share of lot 21 DP718774 at Mascot. Apparently there is a lease to Instyle. Apparently Instyle carries on its business there. The other 99/100 share is owned by Carolyn May Patterson. Mr Fitzsimons and Ms Patterson own their respective shares as tenants in common. The property is subject to a registered mortgage to St George Bank Limited. Mr Fitzsimons and Ms Patterson own as joint tenants Lot 1 DP 822332 and Lot 1 DP 29787, both in the Local Government area of Randwick, Parish of Botany, and both subject to two mortgages to St George Bank Limited. The evidence does not reveal the values of these properties or the amounts now secured by the mortgages. There could be difficulty in realising Mr Fitzsimons's interest in them. But according to the view that I take, this does not matter. It would be possible to order Instyle to provide security in the form of a deed of guarantee (executed by Mr Fitzsimons) as has happened in certain other cases, such as Appleglen and Gentry Bros . The respondents would have to sue Mr Fitzsimons on the guarantee. In this respect they would not be in as a favourable a position as they would be if Mr Fitzsimons, rather than Instyle, had been the applicant.


case_text: respondents rely on s 1335(1) of the Corporations Act 2001 (Cth) (the Corporations Act ) and s 56 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) Section 1335(1) of the Corporations Act provides: Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. Section 56(1) of the FCA Act provides as follows: The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her. The power conferred by s 1335(1) depends on satisfaction of the condition expressed in that provision but s 56 of the FCA Act is not subject to satisfaction of that or any other condition. In addition, s 56 is not confined by reference to a corporate applicant or to the costs of the respondent. More importantly, there can be circumstances in which it may be appropriate to order the provision of security even though there is no question of the applicant's capacity to satisfy an adverse costs order, such as where the applicant has no assets within the jurisdiction: see, for example, Austin, Nichols & Co Inc v Lodestar Anstalt [2009] FCA 1228.


case_text: respondents rely on KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ( KP Cable ) and Avspares Pty Ltd v Skywest Aviation Pty Ltd (1997) 24 ACSR 272 ( Avspare s). In KP Cable , Beazley J, when a judge of this Court, reviewed the authorities, expressed disagreement with Powell J, and noted her concurrence with what was said by Byrne J in Mantaray and by Cooper J in Gentry Bros . Her Honour did so on the basis that all that was being said in those two cases was that "the offer of security by way of a guarantee from the directors or shareholders or other persons interested in the outcome of the litigation was a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made" (at 204). Beazley J concluded that the question for her to decide was whether the respondents should be deprived of the provision of security such as cash or a charge over assets merely because such an offer had been made. She thought that they should not be, noting that one of the individuals concerned had rugs and antiques which that individual valued at $30,000 and which were not necessary for the individual's daily living needs or for the purposes of her earning a living. Her Honour observed that there was no reason why they should not be charged to the extent of the security that her Honour proposed to order. In Avspares , the company was the only applicant and the husband and wife who stood behind it indicated a preparedness to assume personal responsibility by way of guarantee or otherwise for the costs and offered to secure the amount by charging their motor vehicles and furniture and house contents. Tamberlin J thought that the value of those assets would be sufficient to meet the amounts sought by way of security. His Honour considered that the proceeding should be permitted to continue provided the two individuals accepted responsibility for the costs and secured the amount sought by a charge over their personal assets. In view of the fact that the offer made included an offer of a charge, Tamberlin J's decision in Avspares is distinguishable. An objection to the insistence on a requirement of anything over and above the personal liability of the individual concerned is that the respondent obtains an advantage, and the individual is subjected to a disadvantage, that would not be the case if the individual had been the applicant. I note that in the following two cases there was no requirement that the individuals give a charge or other security beyond their deed of guarantee or their undertaking to the Court.


case_text: seems to follow from the dictum of Connolly J that if the present respondents can be placed in a position in which they will enjoy the same remedies against Mr Fitzsimons in respect of costs as they would if he were the applicant instead of Instyle, the object of s 1335(1) of the Corporations Act would be achieved and Mr Fitzsimons's own worth would be "not really relevant". The basis of this approach is the proposition that the impecuniosity of an individual is not a ground on which to order him or her to give security for costs: see Cowell v Taylor (1885) 31 ChD 34 at 38; Pearson v Naydler [1977] 1 WLR 899 at 902; Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 at 469.


case_text: Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 , Burchett J was faced with circumstances similar to those in Harpur in that the individual who was the only shareholder in the applicant company with a substantial interest in any proceeds of the litigation, was also an applicant. It was common ground that both he and the company were insolvent. Nonetheless, his Honour declined to order the company to provide security. His Honour referred to the dictum of Connolly J to the effect that in such circumstances the individual's worth was "not really relevant". What was relevant, his Honour said, was that the company was "not a stalking horse to enable someone else to evade personal responsibility" (at 53). Burchett J said that if the individual accepted responsibility, he or she, even though impecunious, was entitled to rely on the general rule that poverty is no bar to a litigant.


case_text: other cases too the view has been taken that provided the individual behind the corporate litigant or the trust of which the corporate litigant is trustee assumes liability for the costs, the purpose of the statutory provision is served: see Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 at 306 (Byrne J); Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 at 415 (Cooper J) ( Gentry Bros ) and Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 (WASCFC) ( Clyde Industries ). In Gentry Bros Cooper J said that the making of an order which secures the personal liability of the shareholders "is in itself the provision of security" (at 415). In Clyde Industries the Acting Master had ordered that the plaintiff company pay into Court $5,000 or provide a bank guarantee in that sum and provide a written guarantee by the company's directors (which they had offered) to indemnify the appellant for its taxed costs. The Full Court of the Supreme Court of Western Australia dismissed the company's cross appeal. However, the Full Court appears to have treated the relevant ground of cross-appeal only as being that the order for provision of security in the sum of $5,000 would stultify the action.


case_title: Cowell v Taylor (1885) 31 ChD 34


case_text: other cases too the view has been taken that provided the individual behind the corporate litigant or the trust of which the corporate litigant is trustee assumes liability for the costs, the purpose of the statutory provision is served: see Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 at 306 (Byrne J); Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 at 415 (Cooper J) ( Gentry Bros ) and Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 (WASCFC) ( Clyde Industries ). In Gentry Bros Cooper J said that the making of an order which secures the personal liability of the shareholders "is in itself the provision of security" (at 415). In Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441 Powell J disagreed with the views expressed by Byrne J in Mantaray and by Cooper J in Gentry Bros to the effect that once the shareholders had agreed to accept personal liability for any judgment for costs, the statutory purpose of s 1335 was fulfilled. His Honour considered (at 456) that that approach would be "a fetter" on the Court's discretion. The respondents rely on KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ( KP Cable ) and Avspares Pty Ltd v Skywest Aviation Pty Ltd (1997) 24 ACSR 272 ( Avspare s). In KP Cable , Beazley J, when a judge of this Court, reviewed the authorities, expressed disagreement with Powell J, and noted her concurrence with what was said by Byrne J in Mantaray and by Cooper J in Gentry Bros . Her Honour did so on the basis that all that was being said in those two cases was that "the offer of security by way of a guarantee from the directors or shareholders or other persons interested in the outcome of the litigation was a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made" (at 204). Beazley J concluded that the question for her to decide was whether the respondents should be deprived of the provision of security such as cash or a charge over assets merely because such an offer had been made. She thought that they should not be, noting that one of the individuals concerned had rugs and antiques which that individual valued at $30,000 and which were not necessary for the individual's daily living needs or for the purposes of her earning a living. Her Honour observed that there was no reason why they should not be charged to the extent of the security that her Honour proposed to order. It would be possible to order Instyle to provide security in the form of a deed of guarantee (executed by Mr Fitzsimons) as has happened in certain other cases, such as Appleglen and Gentry Bros . The respondents would have to sue Mr Fitzsimons on the guarantee. In this respect they would not be in as a favourable a position as they would be if Mr Fitzsimons, rather than Instyle, had been the applicant.


case_text: Harpur v Ariadne Australia Limited [1984] 2 Qd R 523 ( Harpur ), the Full Court of the Supreme Court of Queensland considered the application of s 533(1) of the Companies (Queensland) Code (a predecessor of s 1335(1) of the Corporations Act ) to circumstances in which there were four plaintiffs, three of them companies and the other an individual, and in which the defendants sought an order for security. The Master ordered the companies to provide security. On appeal, Connolly J, with whom Campbell CJ and Demack J agreed, noted that: there was reason to believe that none of the three corporate plaintiffs would be able to pay the defendants' costs if they were successful; and if any of the plaintiff companies failed, the individual plaintiff must also fail. His Honour said (at 532) with reference to s 533(1): The mischief at which the provision is aimed is obvious. An individual who conducts his business affairs by medium of a corporation without assets would otherwise be in a position to expose his opponent to a massive bill of costs without hazarding his own assets. The purpose of an order for security is to require him, if not to come out from behind the skirts of the company, at least to bring his own assets into play. If however he is already available for whatever he is worth, the object of the legislation is seen to be satisfied. [My emphasis] Importantly for present purposes, and consistently with the sentence just emphasised, Connolly J added (at 533) that on the view he took of the case the question of the individual plaintiff's worth was "not really relevant". In Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 , Burchett J was faced with circumstances similar to those in Harpur in that the individual who was the only shareholder in the applicant company with a substantial interest in any proceeds of the litigation, was also an applicant. It was common ground that both he and the company were insolvent. Nonetheless, his Honour declined to order the company to provide security. His Honour referred to the dictum of Connolly J to the effect that in such circumstances the individual's worth was "not really relevant". What was relevant, his Honour said, was that the company was "not a stalking horse to enable someone else to evade personal responsibility" (at 53). Burchett J said that if the individual accepted responsibility, he or she, even though impecunious, was entitled to rely on the general rule that poverty is no bar to a litigant.


case_text: my opinion the cases to which Powell J referred show only that ordinarily it is to be expected that the discretion will be exercised in favour of the company. I can conceive of circumstances in which it may be appropriate to insist on more than the personal liability of those who stand to benefit from the company's proceeding. An example would be where they had misappropriated to themselves and dissipated the company's property, and therefore destroyed its capacity to pay. I accept that the fact that the shareholder or other person who stands to benefit from the action takes on a personal liability does not necessarily conclude the question against an order for the provision of any further security: cf Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306.


case_text: Court has power to order a non-party to pay costs under a general provision of the kind found in s 43 of the FCA Act: see Knight v F.P. Special Assets Limited [1992] HCA 28 ; (1992) 174 CLR 178. Such an order was made in Oz B and S Pty Ltd v Elders IXL Ltd [1993] FCA 371 ; (1993) 117 ALR 128 , but there were special circumstances in that case. As far as I am aware, there would be no proper basis on which to make such an order against Mr Fitzsimons in the present case, in the absence of a submission to such an order by him.


case_text: respondents rely on KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ( KP Cable ) and Avspares Pty Ltd v Skywest Aviation Pty Ltd (1997) 24 ACSR 272 ( Avspare s). In KP Cable , Beazley J, when a judge of this Court, reviewed the authorities, expressed disagreement with Powell J, and noted her concurrence with what was said by Byrne J in Mantaray and by Cooper J in Gentry Bros . Her Honour did so on the basis that all that was being said in those two cases was that "the offer of security by way of a guarantee from the directors or shareholders or other persons interested in the outcome of the litigation was a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made" (at 204). Beazley J concluded that the question for her to decide was whether the respondents should be deprived of the provision of security such as cash or a charge over assets merely because such an offer had been made. She thought that they should not be, noting that one of the individuals concerned had rugs and antiques which that individual valued at $30,000 and which were not necessary for the individual's daily living needs or for the purposes of her earning a living. Her Honour observed that there was no reason why they should not be charged to the extent of the security that her Honour proposed to order.


case_text: solicitor who had the benefit of professional indemnity insurance sought security in Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 ( Livingspring ). The plaintiff urged the court to take the insurance into account. Maxwell P and Buchanan JA stated: [67] We can see no reason in principle why an insured defendant should be in any different position from an uninsured defendant for this purpose. Let it be assumed that the insurer has agreed to indemnify the defendant against the plaintiff's claims. The insurer should be regarded as having exactly the same entitlement as the insured defendant to protection against the risk that the plaintiff will be unable to meet an adverse costs order (cf [ Prime Forme at p 32]). [68] On this view, the fact that a defendant is insured is irrelevant to an application for security for costs. If, as [the plaintiff] argued, the judge had in fact been expressing that view, there would have been no error in doing so. I do not sustain Instyle's submission and follow Prime Forme, Remm and Livingspring. It may be noted, incidentally, that if Instyle's submission had been sustained, the respondents could have relied on s 56 of the FCA Act which is not subject to the same limitation. Offer made by Michael Peter Fitzsimons Instyle Instyle relies on an offer made by Michael Peter Fitzsimons. It is first necessary to note his role in relation to Instyle. The issued share capital of Instyle comprises 10,000 Class A shares, 100 Class C shares and 110,000 Ordinary shares (according to a company extract in evidence, there were previously Class B shares but they no longer form part of the share structure). Mr Fitzsimons holds all 100 Class C shares and 62,000 (56.36%) of the Ordinary shares. A company called Cylinder Investments Pty Limited (Cylinder) holds all 10,000 Class A shares and 48,000 (43.64%) of the Ordinary shares. Mr Fitzsimons is the sole director of Instyle and has been described in the evidence as its founder and Managing Director.


case_text: other cases too the view has been taken that provided the individual behind the corporate litigant or the trust of which the corporate litigant is trustee assumes liability for the costs, the purpose of the statutory provision is served: see Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 at 306 (Byrne J); Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 at 415 (Cooper J) ( Gentry Bros ) and Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 (WASCFC) ( Clyde Industries ). In Gentry Bros Cooper J said that the making of an order which secures the personal liability of the shareholders "is in itself the provision of security" (at 415). In Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441 Powell J disagreed with the views expressed by Byrne J in Mantaray and by Cooper J in Gentry Bros to the effect that once the shareholders had agreed to accept personal liability for any judgment for costs, the statutory purpose of s 1335 was fulfilled. His Honour considered (at 456) that that approach would be "a fetter" on the Court's discretion. The respondents rely on KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ( KP Cable ) and Avspares Pty Ltd v Skywest Aviation Pty Ltd (1997) 24 ACSR 272 ( Avspare s). In KP Cable , Beazley J, when a judge of this Court, reviewed the authorities, expressed disagreement with Powell J, and noted her concurrence with what was said by Byrne J in Mantaray and by Cooper J in Gentry Bros . Her Honour did so on the basis that all that was being said in those two cases was that "the offer of security by way of a guarantee from the directors or shareholders or other persons interested in the outcome of the litigation was a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made" (at 204). Beazley J concluded that the question for her to decide was whether the respondents should be deprived of the provision of security such as cash or a charge over assets merely because such an offer had been made. She thought that they should not be, noting that one of the individuals concerned had rugs and antiques which that individual valued at $30,000 and which were not necessary for the individual's daily living needs or for the purposes of her earning a living. Her Honour observed that there was no reason why they should not be charged to the extent of the security that her Honour proposed to order.


case_text: Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 366 Rogers J fixed on an undertaking to the Court that the individual would make himself personally liable to indemnify the plaintiff in respect of any order for costs in favour of the defendant up to a stipulated sum.


case_title: Oz B and S Pty Ltd v Elders IXL Ltd [1993] FCA 371 ; (1993) 117 ALR 128


case_title: Pearson v Naydler [1977] 1 WLR 899


case_text: J reviewed the authorities. There was an inconsistency of approach between that taken by Ormiston J in Irwin Alsop Services v Mercantile Mutual Insurance Co Ltd [1986] VR 61 ( Irwin ) and that taken by Brooking J in Prime Forme Cutting Pty Ltd v Baltica General Insurance Co (1990) 8 ACLC 29 ( Prime Forme ). In Irwin, the defendants were two pools of insurers. Ormiston J had described them (at p 65) as "pre-eminently loss-bearing and loss-sharing entities, whose raison d'être is their ability to shoulder the losses of others albeit on a commercial basis". His Honour expressed the opinion (at p 66) that "it is not ordinarily appropriate to grant security for costs in favour of an insurer defendant, certainly where the existence of a relevant policy is not in dispute". In Prime Forme, Brooking J disagreed, saying that the fact that the party seeking security had substantial means or was liable to be sued because of its business or profession was irrelevant. His Honour considered (at p 32) that s 533(1) of the Companies (Victoria) Code (a predecessor of s 1335(1) of the Corporations Act ) should not be viewed as a provision designed to protect those unable to protect and cover themselves against the costs of litigation. Rather, his Honour thought that the provision was designed to protect defendants sued by insolvent companies against the risk that an order for costs in favour of the defendants would prove fruitless. A solicitor who had the benefit of professional indemnity insurance sought security in Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 ( Livingspring ). The plaintiff urged the court to take the insurance into account. Maxwell P and Buchanan JA stated: [67] We can see no reason in principle why an insured defendant should be in any different position from an uninsured defendant for this purpose. Let it be assumed that the insurer has agreed to indemnify the defendant against the plaintiff's claims. The insurer should be regarded as having exactly the same entitlement as the insured defendant to protection against the risk that the plaintiff will be unable to meet an adverse costs order (cf [ Prime Forme at p 32]). [68] On this view, the fact that a defendant is insured is irrelevant to an application for security for costs. If, as [the plaintiff] argued, the judge had in fact been expressing that view, there would have been no error in doing so.


case_text: relies on Remm Construction (SA) Pty Ltd v Wallbridge and Gilbert Pty Ltd (1991) 162 LSJS 99; [1991] SASC 3090 ( Remm) . In that case the relevant defendants were engineers. They had professional indemnity insurance, or at least the application for security before the Master proceeded on the assumption that they did with respect to the causes of action pleaded against them. The Master nonetheless ordered the plaintiff to provide a security. The plaintiff appealed. In Remm, Mullighan J (at p 111) accepted the views of Brooking J as "stating the current position", although he distinguished Irwin as a case in which the insurer was the defendant and in any event said that a close reading of Ormiston J's reasons in that case showed that his Honour had not regarded the presence of insurance as determinative against the ordering of security. The decision of Mullighan J in Remm does not support Instyle's argument and is in fact against it.


case_text: Section 477(2B) was enacted by the Corporate Law Reform Act 1992 (Cth) as a result of a recommendation of the Law Reform Commission in its General Insolvency Inquiry, Report No 45, 1988, known as the Harmer Report. That report proposed the removal of restrictions requiring approvals to be obtained from the Court on various matters by liquidators and trustees in bankruptcy. It also proposed, that restrictions requiring prior approvals should be placed on, inter alia, "the power to enter into long term commitments such as the mortgaging or leasing of property of the insolvent" (Report Vol 1, [608]). That purpose was reflected in the Explanatory Memorandum for the 1992 Bill and led Austin J to conclude in Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642 (at 1,649): It appears, therefore, that the purpose of s 477(2B) is, in the Harmer Report's words, to restrict the unfettered exercise of powers which may not be conducive to an expeditious and beneficial administration. That suggests that the role of the court, the committee of inspection or the creditors (as the case may be) is to review the liquidator's proposal by reference to those criteria. The role of the approving body, at any rate where that body is a court, is to grant or deny approval to the liquidator's proposal rather than to develop some alternative proposal which might seem to be preferable.


case_text: The general power of the Court to give directions to a liquidator under s 479(3) of the Act will, in my opinion, also allow the Court to approve the liquidator proceeding under an agreement made without the requisite prior approval under s 477(2B). Further, and equivalent to the inherent jurisdiction of the State Supreme Courts, relied upon in Empire (Aust) Nominees Pty Ltd 18 ACLC 738, is the implied incidental power of this Court to make orders which are necessarily incidental to its express powers. In Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612, Deane J (Mason CJ, agreeing) quoted with approval the statement by Bowen CJ in the Full Court of the Federal Court, under appeal (at 623-624): In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless, a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred.


case_title: Re Aslor Pty Ltd (1997) 15 ACLC 1,412

case_text: In the light of the Harmer Report and Young J's observations, Austin J characterised the court's approval under s 477(2B) thus (at 1,650): ... the court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter. His Honour also approved the application to the exercise of the discretion under s 477(2B) of principles adopted by Mandie J in Re Aslor Pty Ltd (1997) 15 ACLC 1,412. That case concerned an agreement of more than three months duration involving compromise of a claim against the company. Mandie J followed principles applicable to the approval of compromises enunciated by Giles J in Re Spedley Securities Ltd (in liq) (1992) 10 ACLC 1,742. On those principles the Court does not rubber stamp the liquidator's proposal. Nevertheless it will not generally interfere unless there is some want of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's proposal. While the principles so adopted by Mandie J and approved by Austin J related to approval of compromises, they seem to me to have wider application to the exercise of the discretion generally under s 477(2B).


case_text: In Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738, the liquidators of the company had entered into an agreement with a litigation funder which should have had prior approval under s 477(2B). The failure to obtain approval was innocent and based upon ignorance and oversight. Warren J said (at [14]): I adopt a similar view to that expressed by Templeman J in Re Associated Travel [ Leisure and Services Ltd (In Liquidation) [1978] 1 WLR 547] that either under the statute, in this case s 479(3) of the Law or pursuant to the inherent jurisdiction of the court approval may be granted as sought by the liquidator in the present matter. Her Honour went on to refer to s 1322(4)(a) and added (at [15]): I note, further, that s 1322(4)(d) of the Law empowers the court to order an extension of the period for doing any act, matter or thing under the Law, including an order extending a period where the period concerned ended before the application for the order was made and that the court may make such consequential or ancillary orders as it thinks fit. 37 Re Associated Travel, Leisure & Services Ltd [1978] 1 WLR 547 was a case in which a liquidator appointed solicitors without the prior sanction of the court or a committee of inspection as required by s 245(1) of the Companies Act 1948 (UK). In retrospectively approving the appointment, Templeman J relied upon s 246(3) of that Act to give directions to the liquidator. In the alternative he relied upon the "inherent powers" of the court. In Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102, Hamilton J relied upon Re Associated Travel 1 WLR 547 and Empire (Aust) Nominees Pty Ltd 18 ACLC 738 for the proposition that an approval under s 477(2B) could be "given by the court retrospectively" (at [6]).


case_text: Austin J quoted with approval the observations of Young J in Re GA Listing & Maintenance Pty Ltd (1994) 15 ACSR 308 at 311 (at 1,650): If the court can see that the transaction that is to enure past three months is really for the proper realization of the assets of the company or assists its winding up, then the leave should be granted. In view of the general attitude in the Harmer Report that, subject to the particular fetters spelt out in the legislation, liquidators should be given fairly free rein to conduct the winding up. The court's duty is to see that despite the prolongation of the leading the horse home process, the transaction is in the interests of the company, the creditors and the community. 45 In the light of the Harmer Report and Young J's observations, Austin J characterised the court's approval under s 477(2B) thus (at 1,650): ... the court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter. His Honour also approved the application to the exercise of the discretion under s 477(2B) of principles adopted by Mandie J in Re Aslor Pty Ltd (1997) 15 ACLC 1,412. That case concerned an agreement of more than three months duration involving compromise of a claim against the company. Mandie J followed principles applicable to the approval of compromises enunciated by Giles J in Re Spedley Securities Ltd (in liq) (1992) 10 ACLC 1,742. On those principles the Court does not rubber stamp the liquidator's proposal. Nevertheless it will not generally interfere unless there is some want of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's proposal. While the principles so adopted by Mandie J and approved by Austin J related to approval of compromises, they seem to me to have wider application to the exercise of the discretion generally under s 477(2B).


case_text: Re Associated Travel, Leisure & Services Ltd [1978] 1 WLR 547 was a case in which a liquidator appointed solicitors without the prior sanction of the court or a committee of inspection as required by s 245(1) of the Companies Act 1948 (UK). In retrospectively approving the appointment, Templeman J relied upon s 246(3) of that Act to give directions to the liquidator. In the alternative he relied upon the "inherent powers" of the court. In Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102, Hamilton J relied upon Re Associated Travel 1 WLR 547 and Empire (Aust) Nominees Pty Ltd 18 ACLC 738 for the proposition that an approval under s 477(2B) could be "given by the court retrospectively" (at [6]).


case_title: Re Spedley Securities Ltd (In liq) (1992) 10 ACLC 1,742


case_text: The appellant claims to fear both violence and extortion causing hardship, by reason of her opposition to extortion. It may be that she also fears further extortion because of the relatively favourable financial position of her and her husband. It is arguable that a social group may be defined by its members' possession of wealth and/or by their having spoken out against extortion. See Dranichnikov v Minister for Immigration [2003] HCA 26 ; (2002) 77 ALJR 1088. 14 Under the heading 'Findings and Reasons' the Tribunal summarized the appellant's case as follows: 'Essentially, the (appellant) claims refugee protection on the basis of actual and imputed political opinion, arising from her opposition to the MILF's imposition of a "revolutionary taxes" on her and her family.' 15 In this passage the Tribunal recognized the appellant's claim to fear persecution by reason of her opposition to extortion. It is not clear that it recognizes that she claimed to fear both violence and financial hardship. The statement also says nothing about persecution based on her membership of a class comprising persons who are relatively wealthy and/or who have spoken out against extortion.