case_text: I have no hesitation in concluding that both the Commonwealth respondents and Mr Price should be entitled to their costs of the proceeding on a party/party basis. They have successfully resisted Mr Dunstan's claims. There is no reason, in my view, not to apply the normal rule that costs should follow the event: Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748. There were no significant issues upon which they did not succeed: cf Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166. Their conduct did not unreasonably prolong the hearing; the reverse is the case: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544. There is no other conduct on their part which, in my view, would disentitle them from any of their party/party costs.


case_outcome: distinguished

case_title: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166


case_outcome: referred to

case_text: There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 ( Beach ); Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738.


case_outcome: followed

case_text: Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter. 41 Mr Chapman then made an adjustment or reduction of 20 per cent on the amount he had arrived at. He did so firstly to reflect that some of the work carried out might not be regarded as recoverable on a party/party basis although it would properly be recoverable as solicitor/client costs. He used the figure approved in Charlick of 15 per cent as a guide. Secondly, the reduction was to reflect his caution that he may not have detected all work done for other related matters and that there may be further work done by various solicitors on the file which may not be regarded as recoverable on a party/party basis. There is no direct evidence in this matter that the 'usual' or common difference between party/party costs and solicitor/client costs on taxation is 15 per cent. Mr Chapman has not addressed that. The difference sometimes arises because there are different chargeable rates allowed on taxation on different bases. That does not arise here, as the scale hourly rates have been applied. Allowance should nevertheless be made for the fact that some work properly carried out for the purposes of solicitor/client taxation may be excluded for the purposes of party/party taxation. I have reached the view that Mr Chapman's reduction of 20 per cent is a proper one. No matters were put to him in cross-examination to suggest some other overall reduction should be made. Nor was any submission made by Mr Dunstan that some other specific deduction should be made on this aspect. That reduction represents a conservative approach, in Mr Dunstan's favour, as the weeding out process by Mr Chapman should have excluded most of the items which should not be included in party/party costs on this matter. I propose, however, to increase that reduction to 30 per cent to allow, again in Mr Dunstan's favour, for the possibility that calculating costs on an hourly scale rate might result in the costs being higher than those which would be allowed on normal taxation. The 30 per cent reduction covers that contingency, as I consider the 20 per cent deduction proposed by Mr Chapman for the other factors he has referred to is generous to Mr Dunstan. 42 Mr Chapman has added an allowance for the general care and conduct of the matter, pursuant to item 41 of the Second Schedule to the Rules. In my view, some allowance for general care and consideration should be made in respect of the costs to be allowed for the Commonwealth respondents. They were confronted with claims for three separate causes of action requiring extensive documentary review and proofing of witnesses. The factual issues extended over a lengthy period. Mr Dunstan's allegations in his pleadings and affidavits were very detailed, descending into the minutiae of communications and relying often upon subtle nuances of meaning of communications. That is not said as a criticism of him; that was in part the foundation of his claims. It nevertheless required extensive and very careful investigation and consideration of the responses of the various persons involved, the preparation of their affidavits of evidence, and of course the mastering of all that material for the purpose of briefing counsel and giving instructions at the hearing, as well as for giving advice to the Commonwealth respondents from time to time. 43 I do not think the amount of the care and consideration allowance should be determined by benchmarking against other cases. The comparison is too difficult. It may be unreliable without a detailed knowledge of the respective cases. Mr Chapman has allowed 17.5 per cent in this matter, but by a benchmarking process. I think that allowance is an appropriate one, but for the reasons I have given rather than simply by a form of benchmarking.


case_text: Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.


case_text: Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter. 29 I also consider that the expense of taxation in the normal way, which would be incurred by the respondents, is unlikely to be recoverable from Mr Dunstan: see e.g. Hadid v Lenfest Communications Inc [2000] FCA 628. He has now no interest in any real estate. There is nothing to suggest he has any other significant assets which might be available, even to meet any costs order. Mr Dunstan is presently imprisoned. He has no immediate prospects of employment, even if he secures release on parole shortly. The consequence of taxation is that the respondents would incur further significant expense to quantify their entitlement to those costs when that further expense is likely to be irrecoverable from Mr Dunstan. 30 Mr Dunstan's contentions focused on the need for the Court to be satisfied that a particular gross sum for costs represented only those costs which were necessary or proper for the attainment of justice or for maintaining or defending rights of the respondents (O 62 r 19). He then submitted that the evidence of Kim Chapman, a costs consultant, should be rejected, and that the Court should not fix a gross sum for costs because it should be satisfied that the bills of costs of the defendants in matters ACD 31 of 1997 and 32 of 1997 were both over-generous and unreliable, and that there was no reason to think the quantification of the costs applications in this matter were of a different character.


case_title: Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998)


case_title: Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788


case_text: There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 ( Beach ); Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738. 24 Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter.


case_title: Harrison v Schipp (2002 [2002] NSWCA 213 ; 54 NSWLR 738


case_outcome: cited

case_text: Mr Christodoulou sued the respondents (collectively, Disney) for infringement of his Australian Registered Trade Mark No. 631891 consisting of the words THE HUNCHBACK OF NOTRE DAME. Crennan J dismissed the claim, holding that Disney's use of the words was not use as a trade mark: Christodoulou v Disney Enterprises Inc [2005] FCA 1401.


case_text: Mr Christodoulou appealed. On Disney's application, Merkel J made an order for security for costs in the amount of $10,000: Christodoulou v Disney Enterprises Inc [2006] FCA 38. Mr Christodoulou duly paid that amount into court. 3 On 30 May 2006 Mr Christodoulou filed a notice of motion (the first motion) seeking orders that he "be permitted to discontinue" the appeal and that the $10,000 be returned to him. On the same day he filed a document headed "Notice of Discontinuance Order 22 rule 2" which stated that he "pursuant to the leave of the Court granted on 31 May 2006 [the return date of the first motion] (if leave is obtained) discontinues" the appeal. 4 If a notice of discontinuance is filed by an appellant before the hearing of the appeal, no leave is needed. The appeal is taken to be abandoned and the appellant becomes liable to pay the respondent's costs: Federal Court Rules O 52 r 19 (O 22 r 2 referred to in Mr Christodoulou's document applies to discontinuance of proceedings at first instance, not appeals). However, the Court would have a broad discretion, arising from s 43(2) of the Federal Court of Australia Act 1976 (Cth), to make some other order as to costs.


case_title: R v Medway [1976] 1 All ER 527 at 543

case_text: Mr Bova also submitted that I should conclude that the Court had no power to set aside the notice of discontinuance because Mr Christodoulou had not satisfied either of the two possibly applicable criteria. The first requires it to be shown that the withdrawal is a nullity; the Court needs to be satisfied the discontinuance was not the result of a deliberate and informed decision such as where (to take some non-exhaustive examples) it is the result of fraud or mistake: R v Medway [1976] 1 All ER 527 at 543. The second, more liberal, view is that the Court has power to set aside the discontinuance as part of its inherent power to prevent injustice: Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316 at [4] , Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 at [5] .


case_title: Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [20045] FCA 316 at [4]

case_text: Mr Bova also submitted that I should conclude that the Court had no power to set aside the notice of discontinuance because Mr Christodoulou had not satisfied either of the two possibly applicable criteria. The first requires it to be shown that the withdrawal is a nullity; the Court needs to be satisfied the discontinuance was not the result of a deliberate and informed decision such as where (to take some non-exhaustive examples) it is the result of fraud or mistake: R v Medway [1976] 1 All ER 527 at 543. The second, more liberal, view is that the Court has power to set aside the discontinuance as part of its inherent power to prevent injustice: Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316 at [4] , Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 at [5] . 14 The question has been touched on in two decisions of judges of this Court. In NACT (supra) Jacobson J, as already mentioned, held that there was power in the Court to set aside the notice of discontinuance, but dismissed the application. However, the question whether the jurisdiction could be exercised by a single judge was not raised before his Honour and was not mentioned. 15 In NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1444 the appellant was the wife of the appellant in NACT . In the husband's case an application for special leave to appeal to the High Court had taken the point that the application should have been heard by a Full Court. In NACU Hill J at [8] expressed "some misgivings" about jurisdiction, but apparently on the basis that following a discontinuance the proceedings were at an end and there is nothing that could go before a Full Court. If there was power to set aside a discontinuance, to his Honour it was "not immediately apparent how the application (was) one that really resides in the Full Court". If it did, his Honour did not think that s 25 would permit the Full Court jurisdiction to be exercised by a single judge. In any event, his Honour decided to follow Jacobson J, partly because the husband was seeking special leave from the High Court and that the two cases "should be kept together" (at [10]).


case_title: Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 at [5]


case_text: In NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1444 the appellant was the wife of the appellant in NACT . In the husband's case an application for special leave to appeal to the High Court had taken the point that the application should have been heard by a Full Court. In NACU Hill J at [8] expressed "some misgivings" about jurisdiction, but apparently on the basis that following a discontinuance the proceedings were at an end and there is nothing that could go before a Full Court. If there was power to set aside a discontinuance, to his Honour it was "not immediately apparent how the application (was) one that really resides in the Full Court". If it did, his Honour did not think that s 25 would permit the Full Court jurisdiction to be exercised by a single judge. In any event, his Honour decided to follow Jacobson J, partly because the husband was seeking special leave from the High Court and that the two cases "should be kept together" (at [10]). 16 As identified by Hill J, there are really two questions: • Once a notice of discontinuance of an appeal has been filed and served, does the Court have any jurisdiction at all? • If yes, can that jurisdiction be exercised by a single judge?


case_title: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJRn 309

case_text: As to the first question, there is strong authority to the effect that non-compliance with an order that an appeal be dismissed in default of some procedural step being taken by the appellant is terminal; in the event of non-compliance the appeal cannot be revived: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309n, Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529; see the discussion by Wilson J, with whom Brennan, Deane and Dawson JJ agreed, in FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286. However, as FAI Insurance shows, particular rules of court may produce a different result.


case_title: Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529


case_title: FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286


case_text: general history of the town camps is set out in the judgment of Kearney J in Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 4-5, and by Angel J in Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 at 366-70. It is not necessary to espouse fully the accuracy of those descriptions. The first and second respondents do not accept that they are fully accurate. It is sufficient to accept that the applicants in each proceeding see their tenure in the Alice Springs town camps as of great significance, and as the product of the claim for land rights by Aboriginal people.


case_title: Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363


case_text: Honour granted the interlocutory relief on 6 August 2009, pending the hearing of the trial, effectively preserving the status quo until this matter could be heard: see Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844. Whether the proceedings should continue as representative proceedings Both proceedings were commenced as representative proceedings pursuant to the provisions of Part IVA of the FCA Act. The applicant in the Section 47 proceeding is Ms Shaw. The group members were defined in the amended application at paragraph 2 as the persons who have been granted rights of occupancy of houses in the Alice Springs town camps under agreements entered into by them with the Housing Associations, which in turn have been granted Special Purposes Leases or Crown Leases in perpetuity over the town camps land.


case_text: correct starting point is the NTNER Act itself. Whilst the NTNER Act and, broadly speaking, what it (and other legislative provisions) authorised as part of the Intervention in response to what is described in the long title to the NTNER Act as a "national emergency", is a matter of legislative policy, it does not routinely follow that each and every administrative decision made under the NTNER Act is thereby immune from the obligations of according procedural fairness to those whose rights or interests may be adversely affected by such decisions: see eg South Australia v Slipper [2004] FCAFC 164 ; (2004) 136 FCR 259 at 280 per Finn J, with whom Branson and Finkelstein JJ agreed. The Minister's contention was not as broad or as coarse as that.


case_text: starting point for the exercise of a power such as that contained in s 47, when its exercise is likely to affect the rights and interests of a particular group of persons, is that its exercise is to be conditioned on the observance of the principles of procedural fairness: unless they are excluded by plain words or necessary intendment: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 584; and per Brennan J at 620; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at 93 [126]. It is apparent that the legislature was aware of the procedures under the Lands Acquisition Act 1989 (Cth) requiring notice of a decision proposing to acquire land, and requiring then an opportunity to be heard, to be given to the person whose land is proposed to be acquired. Such procedures have been expressly eschewed. So too, by reference to the written or unwritten law referred to in s 50(1) , have the procedural fairness requirements which were given effect to in cases such as Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 been considered by the legislature. The wording of the provisions in Subdivisions A, B and C of Division 2, and Division 3 of Part 4 of the NTNER Act indicate that the legislature was aware that s 47 may lead to the compulsory acquisition of the Alice Springs town camps, and was aware by s 48 that necessarily rights, titles and interests of persons such as the residents may thereby be lost. Nevertheless, s 47 requires only notice to the Northern Territory before it takes effect. That cannot have been by oversight. The particular interests of persons such as the residents may be catered for, in the Minister's discretion, by s 48. But, even then, s 49 shows that such preserved rights may be terminated on effectively no notice.


case_text: starting point for the exercise of a power such as that contained in s 47, when its exercise is likely to affect the rights and interests of a particular group of persons, is that its exercise is to be conditioned on the observance of the principles of procedural fairness: unless they are excluded by plain words or necessary intendment: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 584; and per Brennan J at 620; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at 93 [126].


case_text: it is necessary to consider the construction of the NTNER Act, including s 47, to determine whether the exercise of the power under s 47 is one which is attended by the obligation to accord procedural fairness to Ms Shaw (and the other residents): see Salemi v MacKellar (No 2) [1977] HCA 26 ; (1997) 137 CLR 396 at 400-1 per Barwick CJ; at 419-20 per Gibbs J; and at 451 per Jacobs J. There are some general features of the NTNER Act which provide the context for the particular issue, as well as the general context in which it came to be enacted. Its object under s 5 is to improve the well-being of certain communities in the Northern Territory. It specifies by s 4 and Schedule 1 the "prescribed areas" to which it applies; they expressly include the Alice Springs town camps: cl 69 of Part 4 of Schedule 1. It is therefore clear that the NTNER Act reflects the legislative view that improving the well-being of the residents of the town camps, including by improving their living conditions, is a significant element of the response to the "national emergency". The events leading to these proceedings, set out above, show that the Minister had the desire to bring the accommodation and other infrastructure and services in the town camps to the level available to all Australians. Division 2 of Part 4 of the NTNER Act deals specifically with the acquisition of rights, titles and interests relating to the town camps. Subdivisions A and B deal with resumption and forfeiture of leases or land under the SPL Act and the CL Act respectively. In each instance, the Minister is given the powers of the Northern Territory Minister or Administrator in relation to resumption and forfeiture of such leases or land.


case_text: the Minister points out, that process contrasts sharply with the process specified for the compulsory acquisition of land under the Lands Acquisition Act 1989 (Cth). Under that process, persons whose interests are affected are given an opportunity to be heard before the decision to acquire the land is finally made. Indeed, section 50(2) of the NTNER Act provides, inter alia, that ss 47 and 49 have effect despite anything contained in the Lands Acquistion Act 1989 (Cth). Section 50(1) more generally provides, inter alia, that ss 47 and 49 have effect despite any other law of the Commonwealth or of the Northern Territory, whether written or unwritten. The express reference in s 50(1) to "written or unwritten" laws is, in my view, an expression of the intention that the provisions in (relevantly) Division 2 of Part 4 of the NTNER Act, including s 47, are not to be taken to carry within them the rules of procedural fairness in the face of the meaning of, for example, s 47 as construed in its terms and in its statutory content. Whilst s 50 does not, in express terms, exclude the obligation to give procedural fairness when a decision under s 47 is contemplated, in conjunction with the other provisions to which I have referred that is, I think, the necessary intention of the legislature. See also Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 per Spigelman CJ at 91 [50]. In my judgment, s 47 in its terms and in its context demonstrates an intention that the rules of procedural fairness (relevantly here at least reasonable notice of a decision proposed to be made under s 47 and an opportunity to be heard before the decision is made) be excluded.


case_text: is apparent that the legislature was aware of the procedures under the Lands Acquisition Act 1989 (Cth) requiring notice of a decision proposing to acquire land, and requiring then an opportunity to be heard, to be given to the person whose land is proposed to be acquired. Such procedures have been expressly eschewed. So too, by reference to the written or unwritten law referred to in s 50(1) , have the procedural fairness requirements which were given effect to in cases such as Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 been considered by the legislature. The wording of the provisions in Subdivisions A, B and C of Division 2, and Division 3 of Part 4 of the NTNER Act indicate that the legislature was aware that s 47 may lead to the compulsory acquisition of the Alice Springs town camps, and was aware by s 48 that necessarily rights, titles and interests of persons such as the residents may thereby be lost. Nevertheless, s 47 requires only notice to the Northern Territory before it takes effect. That cannot have been by oversight. The particular interests of persons such as the residents may be catered for, in the Minister's discretion, by s 48. But, even then, s 49 shows that such preserved rights may be terminated on effectively no notice.


case_text: Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 224 CLR 44 , Gleeson CJ at 56 [25] referred to the "very breadth of the statutory power" as an argument in favour of inferring the intention to preserve procedural fairness in the making of the decision then under challenge, under s 51 of the Police Service Act 1990 (NSW). In the case of s 47 of the NTNER Act, however, I think there are clear words indicating a legislative intention necessarily to exclude such processes.


case_title: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70

case_text: Shaw also contended that s 47 of the NTNER Act should be read as requiring procedural fairness to be given to the residents, including Ms Shaw, before a decision is made because s 132(1) declares the provisions of the NTNER Act and actions taken under it for the purposes of those provisions as "special measures" for the purposes of the Racial Discrimination Act 1975 (Cth). As explained in Gerhardy v Brown (1985) 159 CLR 70, s 8(1) of that Act has the consequence that other provisions of that Act (in particular, those that prohibit racial discrimination in various forms) do not apply to "special measures" as described in Art 1 paragraph 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (defined in s 3 of that Act). Relevantly, special measures are ones "taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups ... as may be necessary in order to ensure such groups ... equal enjoyment" of human rights and fundamental freedoms. It was argued that Indigenous wishes about their lands and their participation in such decision-making as may occur under s 47 is of great importance, and so s 132 supports the preservation of procedural fairness when such a decision is to be made. I do not think that s 132 supports the contention in that way. It is a legislative confirmation that the NTNER Act, in its terms as properly construed, and acts which it authorises, will not breach the Racial Discrimination Act 1975 (Cth) because what is authorised by and under the NTNER Act are "special measures". In other words, I consider s 132 is a legislative declaration that the NTNER Act, and the conduct it authorises, has each of the characteristics described by Brennan J in Gerhardy v Brown 159 CLR at 133. In respect of the town camps, that view is also evidenced also from the Second Reading Speech of the Northern Territory National Emergency Response Bill 2007 (Hansard, House of Representatives, 7 August 2007, pages 26-7). Further, and more fundamentally, s 132(2) of the NTNER Act specifically excludes the operation of Part II of the Racial Discrimination Act 1975 (Cth). Section 132(2) provides: The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975 (Cth). In my view, the combination of s 132(1) and (2) evinces a clear intention on the part of the legislature to ensure that the NTNER Act and acts done in accordance with that Act, do not contravene the Racial Discrimination Act 1975 (Cth). Did the Minister give procedural fairness to the residents in the circumstances? My conclusion on the first issue means that it is not necessary to determine this issue. However, as the evidence on this aspect of the case was quite extensive, it is appropriate at least to record my findings on what the Minister and her officers did do in relation to Ms Shaw and the residents and to express my views about it.


case_text: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at 160-1 [26] said that: It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [20] , [25].


case_title: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88


case_text: Residents also contend that they will be worse off by the proposed subleases. As a matter of law, I do not consider that is so. I have dealt with that issue above. There are a few additional matters which should be noted. On the evidence, the rent payable from time to time under the tenancy agreements with the Housing Associations was increased. There is the prospect that over time, through the Executive Director, the rents might further increase. That can only occur to the extent that the tenancy agreements in force permit. There is a loss of control as members of the Housing Association of the selection, from the members, of who gets a tenancy of new dwellings in the town camp, but the subleases are subject to the head lease, and so only members of the Housing Associations are eligible. There was no dispute that the proposed subleases would be subject to the terms of the head leases, entitled to the benefits and subject to the burdens of their covenants: Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155 at 158. There is also a loss of control as members over the income and expenditure of the Housing Associations, and over what action is taken in the event of non-payment of rent or of other breaches of the terms of a tenancy agreement, because those matters become the function and responsibility of the Executive Director, the Northern Territory or Territory Housing, and then through the Housing Authority. Those decisions may only be made after the consultation with the Housing Associations imposed by clause 10.1(c). As a matter of strict interpretation, despite the consultation provided for, the Executive Director or a Housing Authority may adopt a stricter or different view of what is appropriate on those matters than the Housing Associations have done in the past. Thus, whilst I have concluded that the existing tenancy rights and obligations are preserved by the proposed subleases, there is some scope for those rights and obligations to be enforced in a somewhat different way than has occurred in the past. There is some evidence that, in the past, Territory Housing where it has had such a role has adopted a less tolerant attitude to tenants' contraventions of the terms of the tenancy agreements than have the Housing Associations. The Northern Territory has pointed out that, if the Northern Territory or Territory Housing is the relevant Housing Authority, any new tenancy agreements will comply with the requirements of the Housing Act (NT) and the Housing Regulations (NT). They are not requirements which in any material way differ from the terms of the existing tenancy agreements. It has also pointed out that, where it has performed or is performing that role in other Aboriginal Communities, it has established a Housing Reference Group to assist in the selection of new tenants from amongst the eligible persons and to ensure its awareness of cultural concerns and issues which might affect its management of such housing. Consultation processes for such purposes are built into the proposed subleases. There is no reason to think that, despite the concerns of the Residents, the Northern Territory or Territory Housing (or any entity) appointed as a Housing Authority under one of the proposed subleases would act inappropriately or unreasonably or inconsistently with the shared intention of improving the housing and support facilities in the town camps. I, therefore, do not consider that the concerns of the Residents discussed in the preceding paragraph of these reasons provide a sound reason for upholding the Residents' primary contentions. Execution of the Proposed Subleases by the Housing Associations A sublease has been executed by each Housing Association that is a party to the Sublease proceeding, but has not been exchanged. The executed subleases are currently held by the Council, pending the outcome of these proceedings.


case_text: my view, there are two steps required to address the primary proposition: (1) determining what is authorised by the Constitutions or Rule Books of the Housing Associations; and (2) determining whether the proposed conduct of perfecting the grant of the proposed subleases is, in the circumstances, within the scope of that which is authorised or required. Another way of describing those steps might be to ask whether the grant of the proposed subleases is beyond the express or implied power of the Housing Associations under their Constitutions and Rule Books, whatever organ of the Housing Associations might have made the decision to do so, and secondly whether their grant, although within the express or implied power of the Housing Association under their Constitutions and Rule Books, was not within the powers of the Management Committees or the directors to undertake. In Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 , Browne-Wilkinson CJ at 302-5 described the distinction as between ultra vires in the "narrow sense" and ultra vires in the "wider sense". His Lordship at 303 noted that Cotman v Brougham [1918] AC 514 recognised that "the objects of a company and the powers conferred on a company to carry out those objects are two different things" (at 303) and remarked at 304: The critical distinction is, therefore, between acts done in excess of the capacity of the company on the one hand and acts done in excess or abuse of the powers of the company on the other. Mason CJ in Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146 at 162-3 referred with apparent approval to that distinction.


case_title: Cotman v Brougham [1918] AC 514


case_title: Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146


case_outcome: applied

case_text: HA Stephenson & Son Ltd (In Liquidation) v Gillanders Arbuthnot & Co [1931] HCA 47 ; (1931) 45 CLR 476 Dixon J at 487 said that the question of corporate capacity must be ascertained according to the true meaning of the memorandum interpreted by a fair reading of the whole instrument. In my judgment, a fair reading of the current Constitutions of those Housing Associations does not reveal such a focused and restricted objective or principal objective as the Residents contend for. Although the name is "town camp specific", the objectives now contemplate each of those Housing Associations serving their objectives beyond that town camp. The definition of "Town Camp" extends to any land owned or leased by an association, and includes the particular town camp. Item 1.3(b) includes serving the objectives in Item 1.3(a) and generally by "obtaining land" for its members. There is no provision now which specifies the only, or primary, objective to operate the particular town camp. Item 1.2, under the heading "Town Camp governed by the Association (clause 1.1)" has the name of the Housing Association itself I take it to be designating the town camp itself but clause 1.1 is a reference to the definitions in the Constitution , and the only relevant definition is that of "Town Camp". Separately, clause 2.2 has the heading "Objects and Purposes" and refers to Item 1.3. The heading to Item 1.2 in that light cannot be the defining purpose or object of those Housing Associations. There is now no expression of the object or the principal object of the Housing Associations being to control the provision and maintenance of housing and other facilities on the land held under their head leases. The objects are more expansive.


case_text: rule continued to apply to other incorporated associations. At least in respect of partially executed contracts, the absence of power may not have precluded their enforcement: In Re K.L. Tractors Ltd [1961] HCA 8 ; (1961) 106 CLR 318. That is not this case. There may also be circumstances where, notwithstanding that the corporation has acted ultra vires, relief may be available: see Ford's Principles of Corporations Law (Butterworths Looseleaf Service) at [12,060]. However, the rule was in any event ameliorated by provisions similar to that in the Corporations Act 2001 (Cth) in most, if not all, of the States' Associations Incorporation Acts: see s 17 Associations Incorporation Act 1981 (Vic); s 26 Associations Incorporation Act 1981 (Qld); s 27 Associations Incorporation Act 1985 (SA). There was no such provision in the Associations Incorporation Ordinance 1963 (NT) or in the Associations Incorporation Act 1978 (NT). Those enactments were repealed and replaced by the Associations Act (NT), enacted in 2003. There is also no such provision in the Associations Act (NT). Part 6 of the Associations Act (NT) deals with the transfer of property of an incorporated non-trading association. Each of the Housing Associations is not permitted to trade: Item 1.5 of the Schedule to their Constitutions. Section 54 Associations Act (NT) permits the transfer of real property by one association only to another body formed for promoting objects similar to its own or charitable objects, or to a council for the area in which the property is situated. That section also imposes procedural requirements. It is not necessary to refer to them. It is not suggested the grant of the proposed subleases is authorised by s 54 independently of the Constitutions of the Housing Associations. Nor, on the other hand, is it suggested that the grant of the proposed subleases is unlawful so as to prevent the Housing Associations from agreeing to enter into them. Section 54 is expressly subject to s 110. Section 110(2) restricts a Housing Association from disposing of, or charging, prescribed property, which appears to include a lease under the SPL Act or the CL Act (see the definition of prescribed property in s 4), except with the consent of the Minister administering that Act (and, by the NTNER Act, that would include the Minister) without the Minister's consent. It is also not necessary to further discuss those provisions as they were not relied upon, or referred to, either by the Residents or by any of the respondents, as informing the proper construction of the Constitutions of the Housing Associations either to grant or not to grant the proposed subleases. There is no doubt good reason for that. The CATSI Act does have a provision similar to that in s 125 of the Corporations Act 2001 (Cth). Section 96.1 relevantly provides: (1) An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia. (2) An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation's constitution permits, distribute any of the corporation's property among the members, in kind or otherwise. (3) An Aboriginal and Torres Strait Islander corporation's legal capacity to do something is not affected by the fact that the corporation's interests are not, or would not be, served by doing it.


case_text: Minister did not rely upon s 96.1 of the CATSI Act as providing the foundation for the Housing Associations incorporated under it to be enabled to enter into the proposed subleases. That may be simply because there are only three of them, and the condition precedent to the activation of each proposed sublease in clause 2.1(a)(i) referred to above would not be satisfied. It may also be because, notwithstanding its apparent effect, there is some authority to suggest its role is confined to validating corporate dealings with outsiders despite deficiencies in corporate capacity, but not to abrogating restrictions on the exercise of shareholders' or directors' powers: see eg per McPherson J (with whom Lee and McKenzie JJ agreed) in ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 at 988. There may be other reasons. It may be that such a provision does not inhibit a member of such an association from asserting that the common understanding of the members and their general intention was for the association to control the use and development of those town camps, and seeking to enforce that position. That sort of contention has been used to support the winding up of a corporation or the just and equitable ground: see Ford's Principles of Corporations Law (13 th ed, 2007, Butterworths) at [12.130] p 744 and the cases there cited. As the issue was not raised, it is not necessary to go beyond those comments. Consequently, it is necessary to consider the second of the questions I have identified above. That is, it is necessary to determine whether the particular terms of the proposed subleases mean that the agreement to enter into them is contrary to the interests of the members as a whole. The Residents as members put their contention quite brutally: for $1, the Housing Associations have given up all rights, functions and representative activities in relation to their town camps so they cannot discharge their responsibilities to their members under Item 1.3 of their Constitutions and under their Rule Books. There is "an equation of $1 for no rights for at least 40 years".


case_outcome: discussed

case_text: was made to Gambotto v WCP Limited [1995] HCA 12 ; (1995) 182 CLR 432 ( Gambotto ) as supporting the proposition that a company can act bona fide and fairly, and for the benefit of the company as a whole, but cannot do so if that overrides the rights of existing shareholders. I do not think that decision takes the Residents' position that far. In that case, a small minority shareholder challenged the validity of a proposed meeting to consider amending the company's constitution to enable a member entitled to 90% of the issued shares to compulsorily acquire the balance. The Court therefore had to address the limits of the power to alter the constitution of the company to enable the appropriation of the shares of a minority. Clearly, it is a very different type of case. The proposed resolution was not shown to be for a proper purpose, nor was it shown to be one which did not operate oppressively in relation to minority shareholders: see per Mason CJ, Brennan, Deane and Dawson JJ at 445 and 448. Their Honours pointed out also at 445 that the position may have been different if the right to expropriation had already existed in the company's constitution. Senior counsel for the Residents made the submission that the "interests of the members as a whole" was somehow different from the interests of the Housing Associations themselves. In cross-examination of a solicitor from Gilbert + Tobin (the solicitors for the Council) he elicited that their advice to the Council, and to a working group including certain Housing Association representatives, did not separately address the interests of the members of the Housing Associations as distinct from those of the Housing Associations themselves. The significance of the distinction, if legally there is one, was not made clear. It is argued that the Housing Associations could not alienate their interests in the town camps under the respective Special Purposes Leases or Crown Leases either absolutely or for 40 years. That was said to flow from the proper construction and understanding of the objects and purposes of the Housing Associations. I have already addressed that contention. No reason was put why those objects and purposes should impose restrictions on the powers of the Housing Associations which preclude their capacity to agree to the proposed subleases as Housing Associations, and different restrictions on their powers because of the interests of their members as a whole. The plurality judgment in Gambotto 182 CLR pointed out at 444 that the observations of Lindley MR in Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671 that the power of the majority to alter the articles of association of a company must be exercised in a lawful manner and "bona fide for the benefit of the company as a whole" was inappropriate where the proposed resolution involved a conflict of interests and advantages. The plurality judgment said at 444: It seems to us that, in such a case not involving an actual or effective expropriation of shares or of valuable proprietary rights attaching to shares, an alteration of the articles by special resolution regularly passed will be valid unless it is ultra vires, beyond any purpose contemplated by the articles or oppressive as that expression is understood in the law relating to corporations. Consistent with the expression in Gambotto , in Peters' American Delicacy Co Ltd v Heath [1939] HCA 2 ; (1939) 61 CLR 457 , Dixon J when upholding the validity of an alteration of the articles which discriminated against holders of partly-paid shares in favour of the majority shareholders said at 513 that the resolution involved no oppression, no appropriation of an unjust or reprehensible nature and did not imply any purpose outside the scope of the power. Those propositions require some comment. There is, in my view, some mixing of concepts in them. In the first place, as the High Court pointed out in Gambotto 182 CLR, these particular considerations arise where the proposed conduct of the entity expropriates or is intended to facilitate the expropriation of the interests of particular members at the expense of others. That is not this case. The rights of the members of the Housing Associations inter se are unchanged. Secondly, the measure in fact of what is in the interests of the entity itself and its members as a whole will necessarily depend upon the constitution of the entity: a company formed "for profit" is likely to have a constitution which permits conduct which may not be permitted in the case of a not-for-profit association; in fact, each of the Constitutions and Rule Books of the Housing Associations prohibits them from trading for profit. But it does not follow that, somehow, the measure of what is "oppressive or unfair ... is necessarily" applied more rigorously in the case of not-for-profit associations. The measure will still be the objects and purposes of the association. Thirdly, the second proposition set out in the preceding paragraph is really axiomatic. If a particular course of action is not authorised by the constitution, it may not be undertaken. On the second issue, it is necessary therefore that the Residents show that the agreement to enter into the proposed subleases is contrary to the interests of the members as a whole, or effectively to the interests of the Housing Associations. Inevitably, on such issues, there are matters of judgment. Different members will make different commercial judgments about what is, or is not, in the interests of the Housing Associations. The Residents' submission is that their rights as members of the Housing Associations to have the Housing Associations "separately conduct its activities at the town camps for the benefit of its existing members" have been sold for 40 years for $1, without any other return provided as of right for the benefit of the members. I do not accept that contention. It mis-describes their entitlements under the proposed subleases. The general effect of the proposed subleases is set out above. If there is power under the Constitutions or Rule Books of the Housing Associations to enter into arrangements such as the proposed subleases, the aspirational objectives of the Housing Associations may be fulfilled or served by the Housing Associations arranging for another entity, such as the Executive Director, to engage in or conduct activities at the town camps to fulfil or serve those objectives for the benefit of the members.


case_text: significance of the distinction, if legally there is one, was not made clear. It is argued that the Housing Associations could not alienate their interests in the town camps under the respective Special Purposes Leases or Crown Leases either absolutely or for 40 years. That was said to flow from the proper construction and understanding of the objects and purposes of the Housing Associations. I have already addressed that contention. No reason was put why those objects and purposes should impose restrictions on the powers of the Housing Associations which preclude their capacity to agree to the proposed subleases as Housing Associations, and different restrictions on their powers because of the interests of their members as a whole. The plurality judgment in Gambotto 182 CLR pointed out at 444 that the observations of Lindley MR in Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671 that the power of the majority to alter the articles of association of a company must be exercised in a lawful manner and "bona fide for the benefit of the company as a whole" was inappropriate where the proposed resolution involved a conflict of interests and advantages. The plurality judgment said at 444: It seems to us that, in such a case not involving an actual or effective expropriation of shares or of valuable proprietary rights attaching to shares, an alteration of the articles by special resolution regularly passed will be valid unless it is ultra vires, beyond any purpose contemplated by the articles or oppressive as that expression is understood in the law relating to corporations.


case_text: with the expression in Gambotto , in Peters' American Delicacy Co Ltd v Heath [1939] HCA 2 ; (1939) 61 CLR 457 , Dixon J when upholding the validity of an alteration of the articles which discriminated against holders of partly-paid shares in favour of the majority shareholders said at 513 that the resolution involved no oppression, no appropriation of an unjust or reprehensible nature and did not imply any purpose outside the scope of the power. Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].


case_text: the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase "the interests of the members as a whole" in s 320 of the Companies (New South Wales) Code is synonymous with "the benefit of the company as a whole" because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view.


case_text: the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase "the interests of the members as a whole" in s 320 of the Companies (New South Wales) Code is synonymous with "the benefit of the company as a whole" because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc [1985] HCA 68 ; (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view. Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].


case_title: Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1


case_title: Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365

case_text: Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365 , was also an "oppression" case brought in reliance upon the current statutory equivalent, s 232 of the Corporations Act 2001 (Cth), in relation to the conduct of the affairs of an unlisted not-for-profit public company limited by guarantee. It was an entity formed to effect a merger of two existing sustainable energy industry associations. Goldberg J at [59] remarked in the course of his reasons: The "contrary to the interests" provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the "oppression" provisions in subpar (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company's members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company: Turnbull v National Roads & Motorists' Association Limited [2004] NSWSC 577 ; (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 ; (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.) An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas. The Residents correctly point out that, as his Honour said, the assessment of what is in the interests of the members as a whole of the Housing Associations must be assessed by reference to their objects and purposes. That is uncontentious, so long as their interests as a whole are in broad terms synonymous with the interests of the Housing Associations. Goldberg J did not suggest to the contrary. My analysis of their Constitutions and Rule Books is intended to reflect that approach.


case_text: counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 , a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows: The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club's constitution in its consideration of the membership applications. The requirement that an exercise of an association's powers be for the benefit of the members as a whole is to exclude their exercise for "ulterior special and particular advantages", that is, it negatives "purposes foreign to the association's operations, affairs and organizations". ... Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters' 61 CLR]. Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde , Brennan J said: [I]f the directors exercise a power albeit in good faith and for a purpose within the power so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene ... ... However, proof of invalidity or non-compliance with an association's rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association's constitution. ... [citations omitted].


case_text: taken that step, that the proper approach is to determine whether those persons acting on behalf of the Housing Associations are acting for proper purposes and could reasonably have engaged in that conduct. Barwick CJ, McTiernan and Kitto JJ said in Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co N.L. [1968] HCA 37 ; (1968) 121 CLR 483 at 493: Directors in whom are vested the right and the duty of deciding where the company's interests lie and how they are to be served may be concerned with a wide range of practical considerations, and their judgment, if exercised in good faith and not for irrelevant purposes, is not open to review in the courts. Whether the obligation of the Housing Associations and of those persons on their behalf is founded in the contractual relationship between the Housing Association and its members; or in the fiduciary obligation of the Management Committee of the Housing Associations to the members, or upon the Constitutions and Rule Books of the Housing Associations, in my view the appropriate question is for present purposes the same. I have referred above to the finding that each Housing Association, although having no legally enforceable right to any particular part of the $100 million, could reasonably expect and assume that a significant proportion of that sum would be spent on housing and facilities at its town camp. They were aware of the fundamental importance of the town camps land to their respective members. They had negotiated with the Minister for over 12 months. They could reasonably conclude that no "better deal" could be reached. They could reasonably conclude that, if they did not agree to the proposed subleases, the town camps would be compulsorily acquired. They understood the very strong desire of their members to avoid alienation of their land (the land held under the Special Purposes Leases or Crown Leases), and so were making the decision which would ultimately preserve their lands rather than have them compulsorily acquired. They had secured some consultation rights, both directly and through the Forum. They were aware that the $100 million was a package for all the Housing Associations, and its allocation would follow consultation through the Forum. They were aware that the $100 million was required to be expended over a period of five years, and so would provide promptly benefits to existing members, as well as to future generations. They had consulted widely with their members. They had the support of the Council in their decision. They were aware that, under the terms of the proposed subleases, they could be given a significant and direct ongoing role (as recognised in Recitals I and J of the proposed subleases, and in respect of community land, vacant land and after three years potentially as a Housing Authority). As senior counsel for the Housing Associations argued, the Housing Associations were aware that there was no other realistic opportunity available to secure the potential benefits to the town camps which the expenditure of $100 million would bring; they knew of the past "years of inadequate funding leading to substantial housing and conditions for the members and tenants"; and they believed that that funding to the Housing Associations through clause 6(a) of the proposed subleases would directly serve their primary function of relieving the poverty, sickness and suffering and helplessness of Aboriginal people in Central Australia, including their members. Finally, they were aware that the proposed subleases would not preclude them from continuing to engage in activities directed to the six "means" set out in Item 1.3(b) of the respective Constitutions and Rule Books, save to the extent that certain of those activities would be subject to the role and obligations and activities of the Executive Director under the proposed subleases, and they were also aware of the ongoing important role of the Council.


case_text: The course of authority outlined above requires me to hold that the alleged representations by Novapharm to the APO and to the USPTO were not made in trade or commerce. They were not made in the course of a trading or commercial relationship between Novapharm on the one hand, and either the APO or USPTO on the other hand. Novapharm had no trading or commercial dealings with the APO or the USPTO. Nor were they made in the course of the negotiation of contracts; cf Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389. The alleged representations were made to a government instrumentality pursuant to legislation for the purpose of obtaining an exclusive right or bundle of rights made available by that legislation.


case_text: In The British South Africa Company v The Companhia de Moçambique [1893] AC 602 ( Moçambique ), the House of Lords held that the Supreme Court of Judicature had no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad. Moçambique recognised a distinction between "transitory" and "local" actions. The English courts would exercise jurisdiction in respect of the former but not the latter. Actions in which title to land or infringement of rights and interest in real property were in issue were prime examples of local actions. 38 The " Moçambique rule" has been held to apply to intellectual property rights. In Potter v The Broken Hill Pty Co Ltd [1906] HCA 88 ; (1906) 3 CLR 479 ( Potter ), the High Court held that a cause of action for infringement in New South Wales by a Victorian company carrying on mining operations in New South Wales, of the plaintiff's patent issued under the Patents Act 1899 (NSW), was not justiciable in Victoria. 40 In Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52, Finkelstein J recognised that the Moçambique rule was subject to exceptions. 41 In Potter the High Court described one exception to the Moçambique rule (at 498-499 per Griffith CJ): The Courts will no doubt entertain such a question of title if it arises merely incidentally in a case in which the foundation of the jurisdiction is a personal obligation arising from contract or quasi-contractual relationship between the parties.


case_text: It may be that Mr Glueck would be entitled to pursue the remaining general law causes of action in this Court, notwithstanding the non-pursuit of those based on alleged contravention of s 52 of the TP Act . Whether he would be entitled to do so would depend upon a consideration of principles of the kind discussed in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 and Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507. Whether Mr Glueck's general law claims can survive in this Court is better determined after he has filed any amended application and amended statement of claim. Mr Glueck would, in any event, be entitled to pursue relief in a State Supreme Court based on general law causes of action, such as fraudulent misrepresentation, against Novapharm and the individual respondents.


case_title: Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594

case_text: The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ). 25 In Concrete Constructions , the High Court held that an internal communication from one employee to another in their ordinary activities in building work was not conduct engaged in by their employer company in trade or commerce (at 605). The High Court held that what is required is that the relationship between the corporation and the representee be of a trading or commercial character, and that the conduct of the corporation have taken place in the course of that relationship. 26 In their join judgment in Concrete Constructions , Mason CJ, Deane, Dawson and Gaudron JJ said (at 603): ... the words 'in trade or commerce' refer to 'the central conception' of trade or commerce and not to the 'immense field of activities' in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. 27 Their Honours also said (at 604): What the section [s 52 of the TP Act ] is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character...In some areas, the dividing line between what is or what is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. 28 In Village Building , representations made in the nature of forecasts of aircraft traffic noise levels in the vicinity of Canberra International Airport were provided by the Airport's lessee and operator, Canberra International Airport Pty Ltd (CIA), to the Minister for Transport and Regional Services pursuant to the Airports Act 1996 (Cth). As well, the forecasts were published on the company's website and were used in public debate concerning, inter alia, an application to rezone land south of the airport and under the flight path as residential. 29 The applicant for relief was a developer of land in the area south of the airport. 30 Finn J held that the conduct alleged against CIA was not conduct in trade or commerce for the purposes of the TP Act , and an appeal against his Honour's decision was dismissed by the Full Court. 33 No doubt the alleged representations were made by Novapharm in trade or commerce in a broad non-s 52 sense. However, in Concrete Constructions the High Court (at 603) rejected the view that the expression "in trade or commerce" in s 52 referred to "the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business, and held that it bears the narrower meaning to which I referred above. 34 Mr Glueck responded to Novapharm's first ground of attack by submitting that Novapharm did not make representations in trade or commerce to the APO or to the USPTO because all representations made to them were made by Novapharm's Australian and US patent attorneys respectively. His submission must be that the representations that were made by those patent attorneys were not in law representations by Novapharm. In making this submission, Mr Glueck was accepting, in effect, that in suing Novapharm for having made the representations, he had sued the wrong entity, since it was the patent attorneys alone who were responsible for the alleged misrepresentations. It is necessary for Mr Glueck to appreciate that it is possible for a company to make a representation through its agent. In any event, allegations that Novapharm had made the representations in trade or commerce permeate the proposed amended statement of claim and lie at the heart of Mr Glueck's claims. 35 In the result, the proposed amended application and the proposed amended statement of claim should not be allowed to be filed because the former would claim relief, including accessorial relief, based on alleged contraventions of s 52 of the TP Act , and the latter would plead claims for such relief.


case_title: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 ; (2003) 128 FCR 507


case_title: Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563


case_text: The " Moçambique rule" has been held to apply to intellectual property rights. In Potter v The Broken Hill Pty Co Ltd [1906] HCA 88 ; (1906) 3 CLR 479 ( Potter ), the High Court held that a cause of action for infringement in New South Wales by a Victorian company carrying on mining operations in New South Wales, of the plaintiff's patent issued under the Patents Act 1899 (NSW), was not justiciable in Victoria. 41 In Potter the High Court described one exception to the Moçambique rule (at 498-499 per Griffith CJ): The Courts will no doubt entertain such a question of title if it arises merely incidentally in a case in which the foundation of the jurisdiction is a personal obligation arising from contract or quasi-contractual relationship between the parties.


case_text: The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ). 31 Similarly, in RGC v Wimmera , I held that representations made to the Commissioner of Patents in an opposition proceeding were not made in trade or commerce for the purposes of s 52 of the TP Act .


case_text: In Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52, Finkelstein J recognised that the Moçambique rule was subject to exceptions.


case_text: In Tyburn Productions Limited v Conan Doyle (1990) 19 IPR 455, the High Court of England held that an issue as to the existence or non-existence of rights under United States copyright, unfair competition and trademark laws was not justiciable in the English courts.


case_text: The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ).


case_title: Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330


case_text: Order 15A rr 3 and 6 of the Federal Court Rules provide respectively for what is colloquially known as "identity discovery" and "information discovery": see generally Hooper v Kirella [1999] FCA 1584 ; (1999) 96 FCR 1. I am empowered by our Rules to order identity discovery where (i) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in this Court against that person; and (ii) it appears that some other person has, has had, or is likely to have knowledge of facts or possession of any document tending to assist in ascertaining who that person is. 4 Information discovery in contrast is discovery against the very person against whom relief may be sought. It is tightly circumscribed in the requirements to be met before discovery may be ordered. These are that: "(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision." 5 Common to both species of discovery is a prospective proceeding which may be commenced in this Court. Inherent in this possibility are the requirements that the proceeding will be (a) within federal jurisdiction and (b) in respect of a cause of action known to law which is not purely speculative in character and which is not devoid of prospects. There is no difficulty in this matter in relation to the former of these requirements, some at least of the prospective causes of action being said to arise under Commonwealth legislation: see Judiciary Act 1903 , s 39B(1A)(c). It is the latter requirement, which requires the identification of a possible cause of action (in this case a legal wrong done to the applicants), that is problematic. 6 It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subpars (a), (b) and (c) of that rule. Subpar (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]: "(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]." 125 Accordingly, I am not satisfied that the applicants have met the limiting conditions of O 15A r 6(a) for the purposes of information discovery in respect of the potential tort of misfeasance in public office. Equally I am not satisfied for the purposes of O 15A r 3 identity discovery that the prospective proceedings intended to be commenced would be other than speculative: Hooper v Kirella , at [33]. Hence this form of discovery will not be ordered. 126 I will order that the application be dismissed. I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 23 January 2006 Counsel for the Applicants: Mr McDonald QC with Ms Webb QC and Mr Johnson Solicitor for the Applicants: Greg Murray Solicitors Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 & 8 November 2005 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/12.html


case_text: It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subpars (a), (b) and (c) of that rule. Subpar (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]: "(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]."


case_title: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147


case_text: While O 15 r 6 expressly contemplates "fishing", it equally requires that each of the limiting conditions prescribed in subpars (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia Ltd v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at [5] . 8 Before outlining the factual setting of this matter I should indicate that it has undergone a significant transformation since the hearing of the application. I gave the applicants leave to file supplementary submissions directed primarily to the prospective causes of action they might wish to pursue. They have acted upon this leave and, in quite some degree, have recast their cases for present purposes. This explains why matters which received some attention at the hearing are only dealt with cursorily in these reasons. 9 Much in the detail of what follows relates only to the first applicant, Scott Rush, and gives rise to potential claims unique to him. As will become apparent, the cases of the other three applicants arise from their involvement in events in which Scott Rush as well was implicated. The evidence in this matter was given by way of affidavit and without cross-examination. In relation to Rush's case I should also indicate that a number of affidavits have been read which expose significant conflicts of evidence between witnesses. I should indicate that I have not been asked in the circumstances to make findings in relation to contested issues of fact in the material before me, the respondent being prepared to accept that their resolution is for another day, if at all.


case_text: The AFP Act and the Australian Federal Police Regulations made under it apply both throughout and also "outside Australia": the AFP Act , s 5A. Finally, in abolishing the "independent discretion" rule exemplified in Enever v The King [1906] HCA 3 ; (1906) 3 CLR 969, s 64B provided (insofar as presently relevant) that: "(1) The Commonwealth is liable in respect of a tort committed by a member in the performance or purported performance of his or her duties as such a member in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member." 36 This Act assumed its presently relevant form as a result of amendments made to it in 1996. The 1996 legislation aimed (to quote the "Outline" to the Explanatory Memorandum to the 1996 Bill) to: " clarify the areas in which mutual assistance in criminal matters may only be sought by the Attorney-General and the areas in which assistance may be sought using other channels enable the Attorney-General to grant or request assistance without the Act having to be applied by regulation to a particular country give the Attorney-General a discretion to refuse assistance where the request relates to the prosecution or punishment of a person for an offence in respect of which the death penalty could be imposed or carried out enable the Attorney-General to refuse assistance where he considers it appropriate in the circumstances of a particular request." 37 The areas in which a request was required to be made by the Attorney-General, or to the Attorney-General in respect of a request by a foreign country, for international assistance in a criminal matter, were specified in the Act. Put shortly, they related to matters that would require either Australia (in respect of a foreign request) or the foreign country (in respect of an Australian request) to exercise coercive powers: see ss 5, 7, 10 and 11 and Parts II to VIIA of the Act; see also Second Reading Speech, Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996, House of Representatives, Wed 26 June 1996, 2831-2832.


case_text: Other provisions both of the Mutual Assistance Act and of the Mutual Assistance Treaty with Indonesia make plain that no such limitation on the making of other requests was so intended. Section 6 of the Act expressly states that the Act does not prevent the provision etc of international assistance in criminal matters other than assistance of a kind that may be provided under that Act. Section 5 (the objects provision) states the purpose of the Act to be (inter alia) to facilitate the obtaining by Australia of international assistance in criminal matters: s 5(c). The interpretation of s 10(2) proposed by the applicants impedes rather than advances that purpose especially in light of s 6. Distinctly, the Mutual Assistance Treaty (the provisions of which limit the applicability of the Mutual Assistance Act to requests between Australia and Indonesia: see s 7(3)(a)) expressly provides that the Treaty does not derogate from obligations subsisting between the contracting parties, nor does it prevent them from providing assistance to each other: Art 2. Finally, if Parliament had intended through s 10(2) to impose such a fetter on obtaining international assistance in criminal matters as the applicants submit, thereby precluding the taking of such action as would otherwise be mandated by other legislation (e.g. the AFP Act : see below), one would have expected it to have spoken with far greater clarity than it has, the moreso given the purpose of the Act noted above: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 at 63-64. 63 I am in consequence satisfied that, on the proper construction of the Mutual Assistance Act, any foreshadowed cause of action founded on that Act must fail. In the circumstances it provides the applicants with no basis for any reasonable cause to believe they may have a right to obtain relief in this Court. 64 In supplementary submissions, the focus of the applicants' prospective ultra vires case turned to the provisions of the AFP Act . The relevant provisions of this Act and of directions given under it are set out at [33] to [35] above. It is now contended that the functions and powers set out in ss 8 and 9 of that Act, when read in context, do not include, authorise or justify any act or decision made by an AFP member which exposes an Australian citizen to the death penalty, whether in Australia or overseas. The context referred to in this submission is said to be provided by the Death Penalty Abolition Act 1973 ("the Abolition Act "), the provisions of s 8(1A) and (1B) of the Mutual Assistance Act, unambiguous Australian Government policy which is opposed to the death penalty (at least for its citizens) and Australia's signing of the Second Optional Protocol to the ICCPR.


case_text: It is now well accepted that the modern approach to statutory interpretation requires that "context" be considered at the first instance, not merely at some later stage when ambiguity might be thought to arise. "Context" here is used in a wide sense and includes legal and historical context: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408; Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 at [36] ; see also Allsop, "Statutes: Context, Meaning and Preenactment History", Jo of NSW Bar Assoc, Winter 2005, 19 ff. It is questionable whether any of the matters relied upon are relevantly contextual for the purposes of interpreting s 8 of the AFP Act .


case_title: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256


case_text: The international treaties and instrument that have been ratified by Australia and on which the applicants rely have not as such been incorporated into Australian law by express enactment. The Abolition Act pre-dated Australia's signing up to the Second Optional Protocol to the ICCPR. Neither the Abolition Act nor the Protocol addresses action taken by Australian public officers or agencies vis-à-vis foreign law enforcement agencies in connection with offences in their jurisdiction which can there attract the death penalty. Neither expressly or impliedly prohibits taking such action as, for example, the provision of information of the type contained in the Hunniford letters. Neither expressly betrays an intent in relation to such action. The Abolition Act cannot thus properly be used to read down s 8 of the AFP Act . The Second Optional Protocol only came into effect for Australian purposes years after the enactment of s 8. It provides no contextual aid to the section's interpretation. In any event it imposes no obligation on a Contracting Party vis-à-vis a non-contracting party in respect of the former's dealings with the latter in relation to offences in the latter jurisdiction which can attract the death penalty. Even if s 8 was relevantly ambiguous, the Second Optional Protocol could not assist in resolving that ambiguity: see Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 at 306; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-304. 76 The applicants initially sought to contend that they had in Australian law an enforceable right to life and not to be executed. The ICCPR and the Second Optional Protocol were invoked to this end. This was later abandoned, as it had to be. The provisions of an international treaty do not form part of Australian law merely because Australia is a ratifying party to it. For that reason neither the ICCPR nor the Second Optional Protocol of itself "operate[s] to give rights to or impose duties on members of the Australian community: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [35] ; see also Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292 at 305-306.


case_text: The international treaties and instrument that have been ratified by Australia and on which the applicants rely have not as such been incorporated into Australian law by express enactment. The Abolition Act pre-dated Australia's signing up to the Second Optional Protocol to the ICCPR. Neither the Abolition Act nor the Protocol addresses action taken by Australian public officers or agencies vis-à-vis foreign law enforcement agencies in connection with offences in their jurisdiction which can there attract the death penalty. Neither expressly or impliedly prohibits taking such action as, for example, the provision of information of the type contained in the Hunniford letters. Neither expressly betrays an intent in relation to such action. The Abolition Act cannot thus properly be used to read down s 8 of the AFP Act . The Second Optional Protocol only came into effect for Australian purposes years after the enactment of s 8. It provides no contextual aid to the section's interpretation. In any event it imposes no obligation on a Contracting Party vis-à-vis a non-contracting party in respect of the former's dealings with the latter in relation to offences in the latter jurisdiction which can attract the death penalty. Even if s 8 was relevantly ambiguous, the Second Optional Protocol could not assist in resolving that ambiguity: see Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 at 306; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-304.


case_text: It may be possible to discern in Australian legislation, treaties, official guides, etc a declared antipathy to the death penalty. That antipathy, though, has not been pursued unqualifiedly in our legislation and guides in relation to dealings with foreign countries in respect of matters which could attract the imposition of the death penalty: cf the Mutual Assistance Act ss 8(1A) and (1B) and the Extradition Act 1998 (Cth) s 22(3)(c). It is unsurprising that it has not. In particular contexts, the call of other public interests may be the more powerful. As was said in Rodriguez v United States 480 US 522 (1987) at 526: "Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice".