case_text: In face of these views expressed by highly respected judges, the applicant cites the decision of the House of Lords in South Behar Railway Company Ltd v Commissioners of Inland Revenue [1925] AC 476. That case concerned a taxpayer company incorporated in order to enter into a contract with the Secretary of State for India for the construction of a railway in that country. The company was to supply the Secretary of State with the necessary funds and materials. The Secretary of State was to provide, free of cost, the land required for the railway, of which the company was to retain possession during the continuance of the contract. The Secretary of State was also to construct the railway, using such agency as he should appoint, and according to his design and specifications, but at the entire risk and cost of the company. From the opening of the railway until the determination of the contract, the Secretary of State was to work and maintain it and keep it supplied with rolling stock, plant and machinery. In each half-year he was to retain 45% of the gross earnings of the railway and remit the remaining 55% to the company. The company could not, during the continuance of the contract, without the written approval of the Secretary of State, engage in, carry on, or apply capital to any other business. The Secretary of State might determine the contract on twelve months' notice, given either on 30 June 1919 or on 30 June in the last year of any subsequent period of ten years. Thereupon the company was to give up to the Secretary of State all land, buildings, stores and other things which were to become the absolute property of the Secretary of State. The Secretary of State was to pay to the company, out of the revenues of India, such sum as, when added to any unspent capital, should amount to the total paid-up capital of the company, so far as such capital had been expended on the undertaking with the authorization of the Secretary of State. 32 The railway was constructed and opened. Although the original agreement remained in place, a further agreement was made on 11 December 1906. By it the company agreed that until determination of the contract, the Secretary of State should be entitled to hold and deal with the railway for his own benefit, without any interference or control by the company, and that he should be under no obligation to work the railway. As and from that date, and until determination of the contract, the Secretary of State was to pay a lump sum to the company by half-yearly payments. Amounts otherwise payable pursuant to the original contract ceased to be payable. It was also agreed that upon determination of the contract by notice of purchase the sum of ₤684,580 should be the sum payable in respect of capital expended on the undertaking. 33 Following the 1906 agreement, the company ceased to maintain an office in India. It maintained an office in England, with three directors and a secretary in that country. They received the annuity of ₤30,000 payable half-yearly and, after paying interest on the company's debentures, held meetings and declared dividends in the ordinary way. The company, in 1925, had ₤6,000 in a war loan but no other investments (apart from the railway). 39 The cases cited in Dagnall and the reasons of Wright J do not support that proposition, even in the bankruptcy context. The rule is rather that, under bankruptcy legislation then in force, trading debts were recoverable in bankruptcy after trading had ceased. In Australia two eminent judges have doubted the wisdom of applying that proposition in the tax context, and a third (Brennan J) appears to have had a similar view. In England another eminent judge has expressed similar reservations. The decision in South Behar Railway cannot be interpreted as an endorsement of the wider application of the decision in Dagnall . Only one member of the House of Lords referred to it, and in a qualified way. Decisions in the Australian Taxation Board of Review can hardly be set against the views of the judges to whom I have referred. The observation in the Canadian case is not persuasive. In the circumstances I decline to follow Dagnall for present purposes.


case_outcome: discussed

case_text: In Fielder Downs (WA) Pty Ltd v The Commissioner of Taxation [1980] QdR 283 at 290, WB Campbell J (as his Honour then was) said, concerning legislation which was analogous to the present legislation: 'Although dictionary definitions may be of assistance in some cases, it seems to me that the determination of the issue whether the business carried on by the company in each of the three relevant years was the same business, or one of a similar kind, as was carried on by it before March 1969 depends upon an investigation of fact so as to characterize the kind of nature of the business which was undertaken during each respective period.'


case_outcome: distinguished

case_text: Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).


case_outcome: followed

case_title: Beitseen v Johnson (1989) 29 IR 336

case_text: The notice of motion before the Court concerns an application by the Tax Agents' Board of Queensland ('the Board') for orders that an appeal of Mr Aalders commenced by notice of appeal filed on 26 August 2005 be dismissed. The claim is brought pursuant to the discretionary power of the Court in s 23 Federal Court of Australia Act 1976 (Cth) or alternatively O 20 r 2 Federal Court Rules to dismiss or permanently stay an appeal on the grounds that to proceed would be futile or would involve the Court in the determination of issues that are moot or hypothetical. That these provisions confer this power on the Court in such circumstances is clear from the decision of the Full Court in Beitseen v Johnson (1989) 29 IR 336 at 338. 2 Mr Aalders, a chartered accountant who was a registered tax agent in New Zealand, applied to the Board for registration as a tax agent in Queensland on 2 August 2002. The application was on two grounds: first, under the Trans-Tasman Mutual Recognition Act 1997 (Cth) ('the TTMR Act'), and second, under the Income Tax Assessment Act 1936 (Cth) ('Tax Act'). 3 The Board refused Mr Aalders' application for registration under both Acts, and he applied to the Administrative Appeals Tribunal ('the Tribunal') for review of that decision. 4 The Tribunal delivered its decision on 29 July 2005. In that decision, the Tribunal: • affirmed the decision of the Board to reject Mr Aalders' application for registration as a tax agent in Queensland pursuant to the TTMR Act, but • set aside the decision to reject the Mr Aalders' application for registration as a tax agent pursuant to the provisions of the Tax Act, and remitted the matter to the Board for reassessment with the direction that Mr Aalders qualified for registration as a tax agent in Queensland. 5 It is common ground that Mr Aalders is now registered as a tax agent in Queensland. The chronology filed by the Board indicates that Mr Aalders was registered as a tax agent on 10 August 2005. 6 Mr Aalders has now appealed the decision of the Tribunal, but only in respect of the Tribunal decision Q2004/110 with respect to his application for registration as a tax agent pursuant to the TTMR Act. 11. To uphold the ruling of the Tribunal would create a situation which requires the New Zealand government to give up its right to its own sovereign decisions and to make those subservient to whims of the tax bureaucracy of Australia in order for the TTMR regime to apply. 9 Mr Aalders subsequently filed further written submissions including: 1. There prevails unwarranted discrimination against New Zealand Chartered Accountants based on supposition and assumptions based on ignorance and prejudice rather than on fact. 2. The Tribunal is biased in its approach to New Zealand tax agents. 10 Mr Aalders also referred in detail to Crowley v Tax Agents' Board of NSW (1989) 90 ATC 2005, a decision of the Tribunal. SUMMARY DISMISSAL 11 The relevant powers of the Federal Court are found in s 23 Federal Court of Australia Act 1976 (Cth) and O 20 r 2 Federal Court Rules : Beitseen v Johnson (1989) 29 IR 336 at 338. Section 23 provides: 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' 14 The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: • in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position • resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing • although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 18 In the case before me there is no question that Mr Aalders is genuinely desirous of resolution of the issue of the application of the TTMR Act to New Zealand tax agents seeking to practise in Australia. From the facts of the case before me, however, it is equally clear that, so far as Mr Aalders is concerned, the point is moot. Whether the TTMR Act applies to New Zealand tax agents seeking to practise in Australia is, considered objectively, no longer relevant to his circumstances. Mr Aalders was registered as a tax agent in Australia following the decision of the Tribunal, on a different basis to the application of the TTMR Act. To paraphrase the words of their Honours in Beitseen and Hole : • there remains no real contest between Mr Aalders and the Board as to his registration as a tax agent • his desire to agitate the issue of the application of the TTMR Act to New Zealand tax agents does not satisfy the requirement that the legal right of the parties should be in actual controversy • no outcome from Mr Aalders' substantive appeal, irrespective of whether I were to find in his favour or against him, and no direction I could give to the Tribunal in relation to his case, could confirm or modify any rights he already has.


case_outcome: cited

case_text: Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson & Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)


case_text: The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: • in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position • resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing • although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338)


case_text: To uphold the ruling of the Tribunal would create a situation which requires the New Zealand government to give up its right to its own sovereign decisions and to make those subservient to whims of the tax bureaucracy of Australia in order for the TTMR regime to apply. 9 Mr Aalders subsequently filed further written submissions including: 1. There prevails unwarranted discrimination against New Zealand Chartered Accountants based on supposition and assumptions based on ignorance and prejudice rather than on fact. 2. The Tribunal is biased in its approach to New Zealand tax agents. 10 Mr Aalders also referred in detail to Crowley v Tax Agents' Board of NSW (1989) 90 ATC 2005, a decision of the Tribunal. SUMMARY DISMISSAL 11 The relevant powers of the Federal Court are found in s 23 Federal Court of Australia Act 1976 (Cth) and O 20 r 2 Federal Court Rules : Beitseen v Johnson (1989) 29 IR 336 at 338. Section 23 provides: 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' 21 Mr Aalders' commitment to his principles, and the broader policy objective of the TTMR Act and the TTMR Arrangement to removing regulatory barriers to trade and commerce between Australia and New Zealand as evidenced in the Explanatory Memorandum to the Trans-Tasman Mutual Recognition Bill 1996 , are not in dispute. However, with respect, I am not satisfied that Mr Aalders' submissions raise issues of genuine public interest sufficient to displace the traditional approach of Courts to what are, at the end of the day, hypothetical questions in the context of this case. While Mr Aalders submits that the principle he seeks to agitate has wider significance than the circumstances of his individual case, there is, for example: • No evidence which could lead me to the conclusion that the differences in the taxation regimes between Australia and New Zealand do not warrant different approaches to registration as tax agents or that there is an issue of public policy in ensuring that New Zealand tax agents are able to be registered in Queensland without complying with requisite Australian standards. • No evidence before me which could lead me to the conclusion that appropriately qualified New Zealand tax agents are not able to be registered in Queensland on other bases, including under the Tax Act (as Mr Aalders was). • No indication of the scale of the problem if any facing New Zealand tax agents seeking to be registered in Queensland. • No evidence that the inability (to the extent there is an inability) of New Zealand tax agents to be registered as tax agents in Queensland creates an issue of public interest in Australia , as distinct from New Zealand (to the extent that it is an issue of public interest in New Zealand, which is also unknown and may indeed be irrelevant for the purposes of the exercise of my discretion in this matter). • Notwithstanding Mr Aalders' claims concerning the approach by New Zealand courts to Australian medical practitioners seeking to practise in New Zealand no evidence there is a conflict between inconsistent decisions between Australia and New Zealand in the interpretation of the TTMR statutes on each side of the Tasman which it would be desirable to resolve. Further, notwithstanding Mr Aalders' submissions concerning Crowley v Tax Agents' Board of New South Wales (1989) 90 ATC 2005 and its undesirability as a precedent in reinforcing discriminatory treatment of New Zealand-educated chartered accountants, I am not persuaded that it is appropriate at this stage to revisit the approach taken in that case. • No issue involving, for example, the administration of justice, public safety, issues of public or media attention or difficult issues of law which have been raised and which should be resolved. • No longer 'a matter' between Mr Aalders and the Board in relation to his registration as a tax agent, with the exception of what he described as the offence he took at his perceived treatment by the Tribunal (TS p 18 ll 4-11) and his desire that the Board take a different approach to other New Zealand tax agents seeking registration. 22 Indeed the last point in many ways crystallises the issue concerning whether there is a public interest in the Court hearing Mr Aalders' appeal. Mr Aalders in his written submissions asks: '...that if he is not allowed to appeal a questionable determination of equivalent occupations, which discriminates against NZ educated Chartered Accountants in public practice (often included in the omnibus description of Tax practitioners) under the Trans Tasman Mutual Recognition Act 1997 and the TTMR arrangement, who else, other than him, may bring such a proceeding to bring about a correction of a most curious decision?' 23 One obvious answer to the question of 'who else, other than Mr Aalders' is a New Zealand tax agent who seeks registration as a tax agent in Australia, who cannot be registered by means of the Tax Act or other avenues, and therefore who cannot achieve registration as a tax agent in Australia other than by reference to the TTMR Act . Should such a person be unsuccessful before the Board and subsequently before the Tribunal, their application might very well come to the Federal Court of Australia for determination. However Mr Aalders is not such a person. He was successful in his case before the Tribunal against the Board, and has been registered as a tax agent. Other than what are clearly his strong feelings in relation to the relevant issues, he has no personal interest in general principles applicable to New Zealand tax agents becoming registered as tax agents by the Board.


case_title: Douglas v Tickner (1994) 49 FCR 507

case_text: Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .


case_title: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413


case_text: Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson & Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394) 19 There is no doubt that Mr Aalders is asking the Court to advise the parties as to what their rights would be under a hypothetical state of facts the hypothetical state of facts being the circumstances if Mr Aalders were unable to obtain registration as a tax agent on any other basis. As I have already pointed out earlier in this judgment citing Lord Loreburn LC in Glasgow Navigation Company v Iron Ore Company , that is not the function of a Court of law. 20 The only question which remains then is whether determination of the issue of the application of the TTMR Act to New Zealand tax agents in these circumstances would be in the public interest. Mr Aalders made strong submissions both in writing and orally to the effect that: • the Tribunal treated New Zealand qualifications with disdain, and discriminated against him as a New Zealand tax agent • the courts in New Zealand have enforced the Trans-Tasman arrangements, for example in relation to medical practice, and the Australian courts should also do so • the position taken by the Board before the Tribunal was a 'ploy or disguise' to attempt to defeat the intent and spirit of the Arrangement and the TTMR Act • the decision of the Tribunal requires the New Zealand government to give up its right to its own sovereign decisions and to make those subservient to whims of the tax bureaucracy of Australia in order for the TTMR regime to apply.


case_text: Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson & Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394) 14 The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: • in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position • resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing • although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 18 In the case before me there is no question that Mr Aalders is genuinely desirous of resolution of the issue of the application of the TTMR Act to New Zealand tax agents seeking to practise in Australia. From the facts of the case before me, however, it is equally clear that, so far as Mr Aalders is concerned, the point is moot. Whether the TTMR Act applies to New Zealand tax agents seeking to practise in Australia is, considered objectively, no longer relevant to his circumstances. Mr Aalders was registered as a tax agent in Australia following the decision of the Tribunal, on a different basis to the application of the TTMR Act. To paraphrase the words of their Honours in Beitseen and Hole : • there remains no real contest between Mr Aalders and the Board as to his registration as a tax agent • his desire to agitate the issue of the application of the TTMR Act to New Zealand tax agents does not satisfy the requirement that the legal right of the parties should be in actual controversy • no outcome from Mr Aalders' substantive appeal, irrespective of whether I were to find in his favour or against him, and no direction I could give to the Tribunal in relation to his case, could confirm or modify any rights he already has.


case_text: Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] . 16 Identifying 'the public interest' for the purposes of exercising this discretion is no easy task. In Kennedy , Steytler P observed: 'Examples of cases in which the public interest exception has been said to apply include cases in which the issues raised in the appeal have a significance wider than for the purposes of the particular case: Mosman Park at 39, Al Masri at 62; or in which the issue raised in the appeal is otherwise one of continuing importance: Al Masri at 62; or in which there is a conflict between inconsistent decisions which needs to be resolved: Mosman Park at 39.' 17 Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).


case_title: King v Lewis [1949] NZLR 779


case_title: Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335


case_title: La Roche v Cormack (1991) 33 FCR 414


case_text: The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: • in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position • resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing • although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 24 In concluding that it is not appropriate for the Court to continue with this matter, I adopt the comments of the Full Court of the Federal Court in Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA: 'The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance. This is not the situation in this appeal (see and compare Beitseen).' 25 In the circumstances I am of the view that, in the exercise of the Court's discretion, the appeal should be dismissed. Accordingly I propose to grant the notice of motion sought by the Board. ORDERS 1. The notice of motion filed 20 October 2005 by the Tax Agents' Board of Queensland be granted. 2. The appeal against Administrative Appeals Tribunal Decision Q2004/110 be dismissed. 3. Henry Anthony Aalders pay the costs of the appeal and the notice of motion of the Tax Agents' Board of Queensland, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 7 November 2006 Counsel for the Applicant: The Appellant appeared in person Counsel for the Respondent: M Brennan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 July 2006 Date of Judgment: 7 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1442.html


case_text: Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] . 17 Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).


case_title: Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38


case_title: Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406


case_title: Sumner v William Henderson & Sons [1963] 2 All ER 712


case_title: Sutch v Burns [1944] KB 406


case_title: Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368


case_title: Vanstone v Clark [2005] FCAFC 189

case_text: The submissions of the Board in support of this notice of motion may be summarised as follows: 1. There is a clear case for summary dismissal of the appeal on the grounds that there is no actual controversy between the parties as to Mr Aalders' legal or practical right to be registered as a tax agent. 2. At its highest, the appeal involves consideration of one of perhaps multiple alternate bases for his current registration. 3. Even if Mr Aalders were successful in the substantive appeal, the appeal would not provide the appellant with any consequential relief as the Tribunal has already remitted the matter to the Board for reconsideration with directions necessitating the registration of Mr Aalders as a tax agent. 4. Mr Aalders has acknowledged that he has no personal interest in the outcome of the appeal, and in effect he seeks a hypothetical opinion from the Court on the application of the TTMR Act to the registration of tax agents. 5. This is not a matter where, notwithstanding the lack of practical outcomes of the appeal, the appeal would resolve an important issue of public law as was the case in Vanstone v Clark [2005] FCAFC 189. 8 The submissions of Mr Aalders in response may be summarised as follows: 1. The governments of Australia and New Zealand have put in place a mutual recognition regime as part of the creation of a free trade area. 2. The courts in New Zealand in relation to medical practice have enforced the principles of mutual recognition and he would have expected the Australian judiciary, including the Tribunal, to do the same. 3. Section 28 of the TTMR Act and the provisions of the Trans-Tasman Mutual Recognition Arrangement ('TTMR Arrangement') allow a person in an occupation or profession registered in New Zealand to practise in Australia and vice versa. The Arrangement was ignored as irrelevant by the Tribunal. 4. The position taken by the Board before the Tribunal was a ploy or disguise to attempt to defeat the intent and spirit of the Arrangement and the TTMR Act. 5. The Tribunal failed to give proper consideration to the equivalence of tax agents in Australia and New Zealand. 6. The Tribunal failed to consider for mutual recognition purposes the ability and fitness of Mr Aalders. 7. As a result, tax agents from jurisdictions including New Zealand are discriminated against in Australia. 8. The decision of the Tribunal in relation to TTMR is fundamentally wrong and unjust, and breaches the spirit of the TTMR and the TTMR Arrangement. Unless the precedent is overturned the entire concept of mutual recognition will be 'killed off by a bureaucracy unwilling to follow the direction given by the Government'. 9. The application by the Board to have Mr Aalders' appeal struck out prejudices every New Zealand educated chartered accountant in public practice, who in terms of the TTMR Act is entitled to practise in Australia and who is afforded educational and qualification equality by the Institute of Chartered Accountants in Australia. 14 The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: • in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position • resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing • although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 15 Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .


case_title: Veloudos v Young (1981) 56 FLR 182


case_outcome: applied

case_text: respect to the issue of adequate state protection, the Tribunal considered the police response to the incidents involving the appellant in June 2006 and January 2007 respectively. The Tribunal found that the police had responded to both incidents and that the police had not proceeded because of the difficulty in tracing the unidentified perpetrators of the crimes. This indicated that the authorities would be willing and able to provide adequate state protection if the appellant and his wife were threatened or harmed in the future. The Tribunal said that the appellant had not provided any independent information as to a lack of state protection in his area or in India generally, in relation to TMC members, and the Tribunal said that it had not found any information to indicate that state protection would be withheld if the appellant faced harm for a Convention reason. The Tribunal said that there was no independent information to establish a link between the CPI(M) and the police. The appellant had claimed that there was such a link and that the CPI(M) had a good relationship with the police. The Tribunal found that the police were unable to pursue the perpetrators of the attacks because of a lack of identification, not a lack of willingness to do so. The Tribunal referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 (" Respondents S152/2003 "). The Tribunal said that it was satisfied that the police had responded in an appropriate and adequate manner in relation to the incidents involving the appellant in June 2006 and January 2007 respectively, and that the police would provide an adequate level of protection to the appellant and his wife should there be any threats in the future. With respect to the issue of relocation, the Tribunal noted that Indians were free to move within the country with the exception of the states of Jammu and Kashmir. The harm suffered by the appellant was "closely related" to his business activities in Calcutta, in particular his contract with BSNL and his support for the TCM in the local elections in April 2006. The Tribunal said: "This leads the Tribunal to conclude that there is a very strong local element to any harm which the applicants have suffered. Should he relocate to another part of India, this local element would be removed and the antagonism and persecution from political and business opponents would not exist." The Tribunal noted that India had a democratically elected government, is essentially governed by the rule of law and has a judiciary "which is independent, albeit slow-moving". The Tribunal concluded that the appellant would not suffer persecution because of his political activity and views and his support of the TCM in the elections in 2006 and that he would not suffer any harm or persecution because of his business success in another part of India. The Tribunal expressed the following conclusion with respect to the issue of relocation: "The evidence from the applicant indicates that he has significant skills and business acumen which would allow him to work and provide financially for his family in another part of India. He does not have dependents who require him to specifically remain in Calcutta, as indicated in his evidence about his family. The Tribunal finds that it would be reasonable, having regard to all the applicant's circumstances, for him to relocate to one of a number of other areas in India." With respect to the issue of adequate state protection, the High Court considered the relevant principles in Respondents S152/2003 . Adequate state protection is relevant to a claim for refugee status because, if it is available, an applicant will have difficulty in showing that he is a victim of persecution, or in establishing that he is justified in his unwillingness to seek the protection of his country of nationality (at 9 [21], 13 [29] per Gleeson CJ, Hayne and Heydon JJ). Adequate state protection does not mean a guarantee of safety. A person may have a well-founded fear of harm and yet there may be adequate state protection. What is required is a reasonably effective police force and a reasonably impartial system of justice or, put another way, a level of protection an applicant is entitled to expect according to international standards (at 12 [28], 13 [29] per Gleeson CJ, Hayne and Heydon JJ). In this case, leaving aside the appellant's assertion of a good relationship between the police and CPI(M) such that he would not be protected from threats or attacks by CPI(M), the Tribunal's approach to the question of adequate state protection did not involve error. The Tribunal considered the response by the police to the two incidents involving the appellant and said that it was adequate and appropriate. The police were willing and able to provide adequate protection if the appellant was threatened or harmed in the future. The Tribunal also found that India was governed by a democratically elected government, applied the rule of law and had a judiciary "which is independent, albeit slow-moving". The appellant pointed to evidence he gave at the hearing before the Tribunal about a connection between the police and the CPI(M). The transcript of the hearing was put before me. I can find one reference in the appellant's evidence to a connection between the police and the CPI(M). It is as follows: "A: So after the incident in the car park, what happened after that? M: I went to the police station after that and I informed them, but they didn't take any action. The threats by phone didn't stop it was continuous and then I let them know and they were very aware of this scenario and situation because CPI has been ruling that area for the last 35 years, so they do have a very good connection with the police station." As to this evidence, the Tribunal said, among other things, that the appellant had not provided any independent information to show this claimed link between the CPI(M) and the police.


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

case_text: appellant submits that the Tribunal did not give proper, genuine and realistic consideration to the claimed link between the police and CPI(M). The Tribunal addressed the issue and stated its reasons for rejecting the appellant's allegation of a link. I do not think there is any substance in this submission, and therefore I do not need to address the question of the proper description of the Tribunal's obligation under s 414 of the Act to review the decision (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 16 [50] - [51] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] per Rares J).


case_outcome: referred to

case_text: appellant submits that the Tribunal did not address the issue of whether it was reasonable, in the sense of practicable, for the appellant to relocate to another part of India. As I understood the submission, it was accepted by the appellant that the Tribunal had addressed the question of whether the appellant could relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution and had decided that he could. The issue that the Tribunal had not addressed, according to the appellant's submission, was whether it was reasonable, in the sense of practicable, for the appellant to do so. The appellant referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437 (" Randhawa ") and NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (" NAIZ "). The authorities suggest that the extent to which the Tribunal must consider the reasonableness, in the sense of practicability, of relocation will depend on the circumstances of the case. Relevant considerations include the applicant's personal circumstances, the general conditions of the country, the reasons for the persecutory conduct and the case the appellant seeks to make. No doubt there are other factors. The administrative body gave the matter adequate consideration in Randhawa (at 443 per Black CJ, at 452-453 per Beaumont J), but not in NAIZ (at [22] per Branson J with whom North J agreed). In my opinion, in this case, the Tribunal properly addressed the issue of relocation within India.


case_title: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437


case_title: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

case_text: turn now to the issue of relocation within India. A person may be refused refugee status where it is reasonable for the person to relocate to a safe area within the country of his or her nationality or citizenship. This principle is not expressly stated in Article 1A(2) of the Refugees Convention, as amended by the Refugees Protocol, but arises because a person claiming refugee status must be outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. I refer to the discussion by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 (" SZATV ") at 22-26 [9]-[22]. However, the relocation principle is not engaged simply by establishing that an applicant does not have a well-founded fear of persecution in another part of his or her country of nationality or citizenship. The principle is only engaged if, in addition, it is reasonable, in the sense of practicable, for an applicant to relocate. In SZATV , Gummow, Hayne and Crennan JJ (with whom Callinan J relevantly agreed) said (at 26-27 [23]-[24]): "The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution. However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality."


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

case_text: appellant submits that the Tribunal, in effect, put an onus on the appellant by requiring him to produce independent information in support of his evidence and that that was a jurisdictional error. He referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 (" SZBEL ") at 164 [40]. This submission must be rejected. The Tribunal did not place an onus on the appellant, let alone an onus to produce independent information. In the passage to which I was referred, the Tribunal was simply making an observation about the lack of a particular type of evidence which one might have expected had the asserted fact been true. The Tribunal accepted a number of aspects of the appellant's account without the need for corroboration and it noted that the appellant's own evidence was clear that the police were unable to pursue the perpetrators, "because of a lack of identification, not a lack of willingness to do so". The appellant submits that the Tribunal failed to fulfil its obligation in s 425(1) of the Act in that it did not advise the appellant that the claimed connection between the police and the CPI(M) was an issue arising in relation to the decision under review. Again, he refers to SZBEL . This submission must be rejected. Nothing occurred before the Tribunal hearing which could have led the appellant to assume that the claimed connection between the police and the CPI(M) was not an issue before the Tribunal. I say that because the appellant did not raise the claimed connection before the hearing ( SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [21] per Bennett J; SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 at [72] per Dowsett J).


case_text: appellant submits that the Tribunal failed to fulfil its obligation in s 425(1) of the Act in that it did not advise the appellant that the claimed connection between the police and the CPI(M) was an issue arising in relation to the decision under review. Again, he refers to SZBEL . This submission must be rejected. Nothing occurred before the Tribunal hearing which could have led the appellant to assume that the claimed connection between the police and the CPI(M) was not an issue before the Tribunal. I say that because the appellant did not raise the claimed connection before the hearing ( SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [21] per Bennett J; SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 at [72] per Dowsett J).


case_title: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724


case_title: SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51

case_text: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 , Gummow, Hayne and Crennan JJ (with whom Callinan J relevantly agreed) said (at 55 [14]): "As indicated in the reasons in SZATV, and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution."


case_title: SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486


case_text: As far as other discretionary reasons are concerned, the respondent submitted that one possible result of the proceedings in the Family Court is that that Court will make orders with respect to the Angas Street property that will only benefit the applicant's estate and, therefore, the creditors of the estate, if the applicant is bankrupt at the time the orders are made. Counsel for the respondent referred to authorities dealing with the Family Court's power to make orders affecting third parties. He referred to Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337. Gibbs J (as his Honour then was) said (at 354-355): The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act . Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.


case_text: The principles which govern an application under s 178 are as follows: 1. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ. The section confers on the Court a very wide discretion: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547 at 552-553. 2. It is not necessary for an applicant for relief under the section to show that the trustee's decision was absurd, or unreasonable or taken in bad faith. The Court has a wide discretion to make such order as seems appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10; [1977] FCA 15 ; 17 ALR 182 at 186 per Deane J. At the same time, the Court will be slow to make orders which will have the effect of interfering in the day-to-day administration of a bankrupt's estate and, in cases involving an exercise of business or commercial judgment, will place considerable weight on the trustee's decision. Furthermore, a Court will not intervene under s 178 simply because the Judge forms a different view from that of the trustee. 3. An order may be made under s 178 even if the trustee's decision was correct on the material before him, if, for example, additional material is put before the Court. 4. The power to make orders under s 178 is not necessarily ousted by the presence of an alternative remedy. In any particular case, the presence of an alternative remedy may lead to an argument that the alternative procedure is a code for correcting alleged errors by a trustee. That was a possibility discussed by the Full Court of this Court in McGoldrick , although the argument did not succeed in that case. In almost all cases, the presence of an alternative remedy will be relevant to the exercise of a discretion under s 178 not to make an order. There is, with respect, an illuminating discussion of the relevant principles by French J in Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101. Counsel for the respondent in this case referred to McGoldrick and the argument that an alternative review procedure might be construed as a code excluding relief under s 178 , but by the time of their respective closing submissions both parties accepted that there is no alternative review procedure which might affect this application either as a matter of law or as a matter of discretion. The position taken by the parties is correct because the review procedure in Part VII , Division 2, Subdivision C relates to a trustee's decision to file a notice of objection (s 149K(1)) ; not a decision (or act or omission) by a trustee not to withdraw an objection.


case_text: It was common ground between the parties that there had been an act, omission or decision of the respondent within s 178 and that that related to the non-withdrawal of the objections under s 149J. The applicant submitted that that occurred before the proceeding was commenced on 8 August 2007. First, he submitted that he wrote to the respondent by letter dated 6 August 2007 and asked him to withdraw the objections. The respondent submitted that he did not receive the letter at about this time. It is not necessary for me to resolve this factual dispute because on any view the respondent was entitled to a reasonable time to consider the request and he was not given it. Secondly, the applicant submitted that the fact that the respondent had not withdrawn the objections before the proceeding was commenced was an omission within s 178. I doubt whether that can be so in circumstances where there is no evidence of a request by the applicant or of a decision by the respondent under s 149J. The respondent submitted that he made a decision not to withdraw the objections on or about 13 March 2008 and that is evidenced by his affidavit sworn on that date. That was after the applicant had sworn his affidavit on 6 March 2008 exhibiting his income tax returns for the financial years ended 30 June 2001 to 30 June 2007 inclusive and filed and served that affidavit. In my opinion, that submission is correct. I do not think there is a problem with the rule in Eshelby v Federated European Bank Ltd [1932] 1 KB 254 bearing in mind the rules of this Court (Federal Court Rules O 13, rr 2(8) and 3A). 38 I should record also that neither party suggested that the respondent could not file the fifth notice of objection or that I could not take it into account even though it was filed after this proceeding was commenced. Nor was it suggested by either party that I could not take into account the fact that the applicant provided the income tax returns previously referred to on or about 6 March 2008. 39 As I have said, the applicant did not challenge the decision of the respondent to file the fourth and fifth notices of objection and his application proceeded on the basis that there were proper grounds for the objections in the fourth and fifth notices of objection at the time they were made.


case_text: As to the third issue, neither counsel made submissions about whether the respondent was entitled at law to use the sum of $4,217.67 to discharge a liability other than the liability identified by the payor. It is far from clear that he was: Halsbury's Laws of England (4 th ed) Vol 9 [956]-[960]. The applicant's counsel put a different argument and that was that even if the respondent was legally entitled to do what he did the respondent as an officer of the Court was bound to act fairly and he had not acted fairly by purporting to allocate the payment to a liability other than that identified by the payor. The applicant's counsel sought to invoke the principle in In re Condon; Ex parte James (1874) LR 9 Ch App 609 (see Re Clark (a bankrupt); Ex parte the trustee of the property of the bankrupt v Texaco Ltd [1975] 1 All ER 453; [1975] 1 WLR 559). I do not think that there is any room for the application of that principle in this case. The payment was not made by a third party but by the bankrupt and the payment was not made in circumstances of unfairness leading to the enrichment of the estate.


case_title: Frost v Sheahan [2005] FCA 1014

case_text: The applicant has previously made an application for an order under s 178. That application was made on 13 December 2004. It was dismissed by Lander J on 28 July 2005: Frost v Sheahan [2005] FCA 1014. 7 The applicant is an accountant. He has tertiary qualifications and considerable experience. He worked as an accountant both before and after he was made bankrupt. As I understand it, he continues to practise as an accountant. 8 At the time of his bankruptcy, the applicant was the joint owner with his wife, Mrs Robyn Frost, of a residential property at Mayfield Crescent, Hallett Cove, South Australia ("Mayfield Crescent property"). He and Mrs Frost have since divorced. At the time of the applicant's bankruptcy, the Mayfield Crescent property was subject to a number of mortgages and it remains subject to those mortgages. There is a first registered mortgage in favour of Australian Finance Company Pty Ltd which secures a debt of approximately $185,000. There are also two registered mortgages in favour of the applicant's solicitor, Mr Paul Richardson, each securing a sum of $50,000 alleged to be unpaid legal fees owed by the applicant to Mr Richardson. 12 Since the applicant's bankruptcy the respondent has filed five objections to the applicant's discharge from bankruptcy. Four notices were filed before the previous proceeding before Lander J was commenced (that is, 13 December 2004) and one was filed after the commencement of the present proceeding on 8 August 2007. 13 The details of the four notices of objection filed by the respondent before the date the previous proceeding was commenced are as follows: 1. The first notice of objection is dated 4 February 2002 and the grounds of the objection were that the applicant had failed to provide to the respondent information in relation to his income and he had failed to disclose in his statement of affairs his interest in the Cullen Bay property. On an application for review the Inspector-General upheld the first ground, but decided to cancel the second ground. On 13 May 2002 the applicant lodged an income questionnaire with the Official Receiver and on 4 June 2002 the respondent filed a notice withdrawing the first notice of objection under s 149J. 2. The second notice of objection is dated 14 June 2002 and the grounds of the objection were that the applicant failed to make income contribution payments pursuant to s 139ZG of the Act . On an application for review, the Inspector-General varied the assessments for CAP1 and CAP2. The Tribunal upheld the Inspector-General's decision on a further application for review and on 20 December 2002 the Official Receiver advised that the objection had been upheld and entered on the National Personal Insolvency Index. Lander J found that this objection was appropriate when made, but had been attended to before his decision. However, Lander J held that the respondent had not erred in refusing to withdraw the second objection even though the applicant had fully responded to it because there were proper reasons for the administration of the estate to continue. 3. The third notice of objection is dated 2 December 2003 and the ground of the objection was that the applicant had engaged in misleading conduct in that he had improperly diverted funds from the bank account relating to the Cullen Bay property to his own use. On an application for review, the Inspector-General decided that the applicant's conduct did not constitute misleading conduct and he cancelled the objection. On 23 July 2004 the Inspector-General advised that the objection was cancelled. 4. The fourth notice of objection is dated 14 July 2004 and the grounds of the objection were that the applicant failed to disclose any particulars of income or expected income as he was required to do by s 139U , and he failed to make payments for which he was liable under s 139ZG. On an application for review the Inspector-General upheld the grounds of objection. Lander J found that the objection was appropriate when filed; he said that he was unable to make a finding as to whether the applicant had satisfied the objection insofar as it relied on the applicant's failure to make payments for which he was liable. However, he found that even if the applicant had made the payments he was required to make, there were proper reasons for the administration of the estate to continue. 14 As I have said, this proceeding was commenced on 8 August 2007. On 12 November 2007 the respondent filed a fifth notice of objection to the applicant's discharge from bankruptcy. The ground of the objection in that notice is the applicant's failure to disclose particulars of income or expected income as required by s 139U. The objection relates to the CAPs commencing on 4 September 2004, 4 September 2005, 4 September 2006 and 4 September 2007 respectively. 15 On 6 March 2008 the applicant filed and served an affidavit sworn by him which annexed his income tax returns for the financial years ended 30 June 2001 to 30 June 2007 inclusive. That was done after this proceeding had been commenced and was done, it seems, to overcome a submission that the applicant had still not provided the information he was required to provide by reason of s 139U. 45 When the matter was before Lander J in the middle of 2005, the question of compliance with the first ground in the fourth notice of objection appears, so far as can be gleaned from his Honour's reasons, to have been given little, if any, prominence by the parties. His Honour did not make an express finding on the matter. Having said that, I note that in the context of considering whether there were proper discretionary reasons for allowing the administration of a bankrupt estate to continue, his Honour found that ongoing inquiries may be made into whether income contributions that had been made to date had been adequate and he said (at [133]): Those investigations may reveal that increased contributions should be made. 46 As I understand it, the applicant submits that the provision of his income tax returns on 6 March 2008, including those for the financial years ended 30 June 2001 to 30 June 2004 inclusive, puts the question of whether he has substantially complied with s 139U in relation to the period from 2000 to 2004 beyond doubt. 47 The position in relation to the period from 2004 to 2007 is clearer than it is in relation the earlier period. As I understand it, the applicant did not provide any information in relation to that period before 6 March 2008 when he provided income tax returns for the financial years ended 30 June 2005 to 30 June 2007 inclusive, and an estimate of his income for the financial year ended 30 June 2008. 59 The applicant sought to meet the argument that there was a proper basis for concluding that further investigations into his income were necessary by making a number of submissions. First, he submitted that the respondent's powers do not end on the applicant's discharge from bankruptcy and he referred, by way of example, to the power of examination in s 81 of the Act , and the continuing obligation on the applicant to assist the respondent under s 152 of the Act . Those matters may be acknowledged, but they are insufficient to suggest that in not withdrawing his objections the respondent should be subject to an order of the Court under s 178. Secondly, the applicant submitted that the respondent had not administered the estate with the diligence required of a reasonably competent trustee in bankruptcy. In the previous proceeding, Lander J made a number of observations about the applicant's failure to co-operate with the respondent in a way which would facilitate the timely administration of his estate (at [5]-[21] and [73]-[92]). I refer to and rely on those findings. Since the previous proceedings the applicant took no steps to provide his income tax returns until 6 March 2008 and he has not provided any group certificates or assessments to the respondent for the financial year ended 30 June 2005 or since. He has been examined on a number of occasions, and on the last occasion, being 31 August 2006, the respondent was still asking the applicant for details of his income. Thereafter, the applicant made no immediate inquiries for his income tax returns allegedly because of health problems. In those circumstances, the greater part of any delay has been caused by the applicant, and, if there has been any delay by the respondent, it is not of such a nature to overcome the other reasons supporting the respondent's decision not to withdraw the objections. 60 In conclusion, the first ground in the fourth notice of objection and the ground in the fifth notice of objection have not been substantially complied with. In those circumstances, the application should be dismissed. In the alternative, further investigations into the applicant's income since the commencement of his bankruptcy, or at least from 2004 to date, are warranted and that conclusion, when considered with other discretionary matters, in turn leads to the conclusion that the application should be dismissed. Before identifying those other discretionary considerations, I should deal with the second ground in the fourth notice of objection. 61 The second ground of objection in the fourth notice of objection is based on s 149D(1)(f) of the Act and is the failure by the applicant to make payments he was liable to pay under s 139ZG. This ground was the subject of a good deal of evidence but only brief submissions from counsel for the respective parties. As I understand it, it is common ground that as at the date of the fourth notice of objection, that is, 14 July 2004, the applicant was liable to pay the respondent the sum of $4,217.67 by way of income contribution, that is, under s 139ZG. It is common ground that by letter dated 28 November 2004 the applicant forwarded the sum of $4,217.67 to the respondent stating that he wished to discharge that liability. The respondent accepted the payment and the applicant submitted that the liability was thereby discharged. The respondent contended that he was entitled to and did apply the money in partial discharge of the applicant's liability to the respondent in the sum of $10,560 and that the liability for $4,217.67 for income contribution remains extant. 79 I summarise my conclusions as follows. The applicant has not substantially complied with the first ground in the fourth notice of objection and the ground in the fifth notice of objection. In addition, discretionary reasons favour allowing the bankruptcy to continue. In the alternative, the applicant has not provided to the respondent sufficient information to enable him to perform properly his obligations to make income contribution assessments and the evidence establishes that further inquiries and investigations are warranted particularly for the period from 2004 to date. The Family Court proceedings mean that there is a prospect of a dividend being paid to creditors. It is true that the applicant will remain bankrupt for eight years and that is a matter which must be taken into account. Nevertheless, as the reasons for judgment of Lander J in the previous proceeding indicate, the delay has largely resulted from the applicant's own conduct. In my opinion, this is not a proper case for an order under s 178. 80 For the above reasons, the application is dismissed. I will hear the parties as to costs and any other orders. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 25 July 2008 Counsel for the Applicant: Mr G Dart Solicitor for the Applicant: Mr P A Richardson Counsel for the Respondent: Mr G Gretsas Solicitor for the Respondent: Gretsas & Associates Date of Hearing: 17, 18, 19 March 2008 Date of Judgment: 25 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1073.html


case_text: As far as the objection provisions in the Act are concerned, although a number of the authorities deal with provisions which have since been amended, it seems the basic principles remain the same. They are as follows: 1. The power to prevent a discharge from bankruptcy by operation of law by filing a notice of objection is "a great power": Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 430-431; 50 ALR 253 at 260; Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296 at 300 [19] - [21] . 2. In Inspector-General in Bankruptcy v Nelson (1998) 86 FCR 67 the Court referred to s 149C as it then was and concluded that to make an objection a trustee would need to have reasons directed to the purposes and objects of the Act and that the existence of a permissible ground supported by sufficient evidence was a threshold and that there must also be reasons justifying the making of the objections in the particular case. Section 149C has since been amended to insert subs (1A) which excludes the sub-group of ten grounds to which I have previously referred from the operation of s 149C(1)(c) (see [21] above). It is not necessary for me to consider whether this amendment might affect the question of whether all the reasoning in Nelson should be applied to the amended provisions because there is no challenge in this case to the respondent's decision to make the objections or the notices of objections themselves. 3. Unlike this case, in Wharton v Official Receiver in Bankruptcy [2001] FCA 96 ; (2001) 107 FCR 28 there was a challenge to a trustee's decision to file a notice of objection and at the time relevant to Weinberg J's decision there were fourteen, not twenty-one, grounds of objection in s 149D(1). Nevertheless, with respect, his Honour's observations at 41 [77] give an insight into the objection procedure: Section 149A is an important provision. It provides a strong incentive to bankrupts to cooperate with their trustees during the administration of their estates. In some circumstances, an incentive of that type is plainly necessary. However, unless the section is construed in a sensible manner, it is capable of operating oppressively. It is reasonable to assume that trustees who make requests for information from bankrupts, including those concerning their income, will make due allowance for what might be regarded as the ordinary exigencies of life. Requests for information are often not met in as timely a manner as they ought to be. Some delays may be regarded as excusable while others will properly give rise to the filing of notices of objection. A bankrupt cannot ignore requests from his or her trustee. A particularly lengthy delay in responding to a request may trigger a notice of objection to discharge which is entirely justifiable. A relatively short delay in answering a request may be a different matter. Section 149D(1)(d) must be construed in the light of the requirement in s 149B(2)(b) that the trustee must believe that the filing of a notice of objection is the only way to induce the bankrupt to discharge his duties under the Act . It is plainly a course of last resort. 4. In Thomas v Donnelly [1997] FCA 1142 , Emmett J considered the trustee's discretionary power under s 149J to consider and make a decision as to whether, in particular circumstances, he should withdraw an objection which he has lodged. His Honour made the point that a trustee is an officer of the Court and that in exercising his powers and functions, he is required to take into account not only the interest of creditors but also the interest of the bankrupt and of the community generally. His Honour also said: In exercising his powers, the trustee should have in mind the object of enforcing careful and moral conduct on the part of the debtor and to uphold the commercial morality of the community. In Macchia , French J cited with approval authority to the effect that trustees are appointed to administer the estates of bankrupts in the interests of creditors and, in so doing, to have regard also to the interests of bankrupts (at 116 [38]). 5. In a case such as the present one where there has been a failure to provide information or material and to pay money and there is no challenge to the decision to make objections on those grounds, a trustee, on being asked to consider a withdrawal of objections, will consider the following: (1) Whether the obligation has now been complied with or, at least, substantially complied with. Literal compliance may not in fact be possible. The ground in s 149D(1)(e) provides an example. The twenty-one day period referred to in s139U(1) is likely to have expired long ago. I will refer to substantial compliance as embracing the concept of compliance in a practical sense with the relevant obligation. It is difficult to see how a trustee could be criticised for refusing to withdraw an objection that had not been substantially complied with. (2) Even if an objection has been substantially complied with, the trustee has a discretion not to withdraw it. That discretion must be exercised having regard to the interests of the bankrupt's creditors and the interest of the bankrupt and the community generally. The discretion should not be exercised to punish the bankrupt. Despite legislative amendments since Nelson the principle that a notice of objection should not be filed to penalise a bankrupt (at 82) remains valid and in the same way a trustee should not refuse to withdraw an objection for the purpose of penalising a bankrupt. The most important consideration in the exercise of the discretion whether to withdraw an objection will be whether there is utility in the administration of the estate continuing. If there is utility in the administration of the estate continuing, then even though a properly based objection has been substantially complied with it may be appropriate for the trustee to refuse to withdraw the objection. In exercising the discretion it is likely that it will be appropriate for a trustee to consider a range of matters. It is not possible to state those matters exhaustively. Some of the matters which seem to me to be relevant are the nature and extent of the benefit which may accrue to the estate if the administration continues, any connection between the ground of objection and delay in the timely administration of the estate, delay by the trustee in the timely administration of the estate for reasons unrelated to the ground of objection and any connection between the ground of objection and a need by the trustee to conduct further inquiries and investigations. It would also be appropriate for the trustee to have regard to the interests of the bankrupt and the overall period of the bankruptcy. In a proper case, it will also be appropriate for the trustee to take into account the fact that he retains certain powers, or is owed certain obligations by a bankrupt, even after the bankrupt's discharge from bankruptcy. Examples are the power to examine and require the production of books in s 81 , and the obligation in s 152 of the Act . Section 152 is in the following terms: s 152 A discharged bankrupt must, even though discharged, give such assistance as the trustee reasonably requires in the realization and distribution of such of his or her property as is vested in the trustee. Penalty: Imprisonment for 6 months. One factor which the respondent advanced as a factor he could rely on to support his decision not to withdraw the objections was the fact that, if not discharged, there will be a further CAP and it was said that that might produce a contribution for the benefit of creditors. The CAPs cease at the end of bankruptcy although an assessment may be made at any time: s 139WA. The discharge of a bankrupt from a bankruptcy does not release the bankrupt from liability to pay an amount to the trustee under s 139ZG(1). In my opinion, the fact that there will be a further CAP is not a factor to be taken into account. It is a consequence of an administration continuing, but not a reason to continue it. I do not think the Full Court of this Court said anything to the contrary in Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296. 36 I have not been able to find any authority which deals with s 139U of the Act . Two matters, however, should be noted. First, the reference in s 149D(1)(e) to s 139U may only be a reference to the obligation in subs (1)(a) to provide a statement containing certain particulars and other matters and not (in addition) the obligation in subs (1)(b) to provide books. That would seem to follow from the fact that s 149D(1)(e) refers only to a bankrupt's failure to disclose "any particulars of income or expected income as required by ... section 139U". Secondly, there was no debate before me as to whether a bankrupt only complied with s 139U if the statement containing certain particulars and other matters and the books are accurate. That type of issue was discussed by Weinberg J in Wharton in a different context, namely, an objection based on s 149D(1)(d). The important word used in paragraph (d) is "information". For reasons I will give I do not need to consider the issue in the context of s 149D(1)(e) and s 139U.