case_title: Millington v Loring (1880) 6 QBD 190

case_text: is a question as to the content of the term "material facts" in O 11 r 2 of the rules. An English case, Millington v Loring (1880) 6 QBD 190 , is still annotated in the Butterworths Practice for a proposition that: Whether or not a fact is material will depend on the circumstances of each case. Material facts are not limited to the facts constituted in the cause of action, but extend to the relief being sought, and generally, so that there is no chance of the respondent being taken by surprise. I can see how this proposition has pertinence in relation to the giving of particulars in relation to the damages which an applicant seeks in either a common law or statutory cause of action founded claim for damages. It is rather less easy to see how this has any application in relation to a claim for injunctive relief under s 475. Especially, that is so, having regard to the terms of s 479 which excludes from the fatality of impact on a discretion to grant injunctive relief particular considerations, that, under the general law of equity, would be followed. Whether or not the considerations that are set out in relation to these representations become material may depend upon the course taken by Burnett Water in its defence. I do not see that they have any place in the statement of claim. I strike them out. Paragraphs 60-82 are as follows: Compliance audit and internal audit In early June 2007 the department administering the EPBC Act, then the Department of Environment and Water Resources ("DEWR"), informed the respondent that it proposed to conduct a random compliance inspection of the dam to assess compliance with the conditions of approval ("the compliance audit"). Prior to the compliance audit occurring in June 2007 the upstream fishway had not been operated for a period of 8 consecutive months as particularised in paragraph 26 above. At the time of the compliance audit and subsequently a company trading as "SunWater" operated the dam as agent of the respondent. PARTICULARS OF AGENT AND AGENCY (a) On or about 16 December 2005 the respondent became a wholly-owned subsidiary of SunWater Pty Ltd (ACN 059 666 625), trading as "SunWater". (b) on 16 January 2006 SunWater Pty Ltd changed its company name to ACN 059 666 625 Pty Ltd, trading as "SunWater". (c) On 12 May 2008 ACN 059 666 625 Pty Ltd was de-registered and its assets transferred to a newly incorporated company, SunWater Pty Ltd (ACN 131 034 985), trading as "SunWater"). (d) The agency between the respondent (as principal) and SunWater(as agent) commenced in or about November 2005 when the dam commenced operation and continued thereafter. (e) The scope of the agency was at all material times for SunWater to operate the dam on the respondent's behalf, including compliance with the approval and negotiations with the department administering the EPBC Act. Prior to the site visit to the dam by a four person audit team from DEWR for the purposes of performing the compliance audit, an employee of SunWater and agent of the respondent, Andrew Maughan, worked to ensure that the upstream fishway operation would be demonstrated to the auditors. When the DEWR audit team conducted a site inspection of the dam on 26 June 2007, SunWater staff acting as agents for the respondent operated the upstream fishway to represent to the auditors that the upstream fishway was in fact operational. Further, on 10 August 2007 Peter Sampson, General Manager Water Services, SunWater, and an agent of the Respondent, wrote to DEWR and requested that the audit report find, inter alia , that "The upstream fish lift is operational." In so doing Mr Sampson represented to DEWR that the upstream fishway was operational. On 8-10 October 2007 an internal auditor employed by SunWater, Danny Green, acting also as an agent for the respondent, conducted an internal audit of the environmental management system of the dam. Mr Green found in his report, dated 10 October 2007 ("the internal audit report") inter alia : It is noted that SunWater may be breaching the conditions outlined within its Federal licence to operate and maintain Paradise Dam. The wording of the condition may work in the favour of SunWater however SunWater is exposed to negative publicity and undue political scrutiny even if a court does find that the organisation has not breached the conditions. Further, Mr Green found in the internal audit report: There is a possible non-conformance with the operation of the upstream fish lift at Paradise Dam as it has only been operated 13 days in the year up to 30 June 2007. The operation of the upstream fishway at the Paradise Dam for 13 days in the year up to 30 June 2007 represented operation for 3.5% of total daily time. The findings of the internal audit report were not conveyed to DEWR. DEWR and representatives of SunWater, acting as agents for the respondent, arranged a meeting in Brisbane on 22 November 2007 to discuss a draft compliance audit report provided by DEWR to SunWater concerning the findings of the compliance audit of the dam conducted by DEWR in June 2007. On 14 November 2007 Mike Smith, Director of the DEWR Monitoring and Audit Section sent an email to Briony Pomplum, Environmental Services Manager, SunWater, setting out the issues that DEWR wished to address at the meeting. One of the issues raised by Mr Smith was: Can SunWater provide advice as to whether the fishlift has been operating as intended i.e., with optimal operating times and if not, what are SunWater's plans to address any shortfall in operational performance? The proposed meeting on 22 November 2007 to discuss the draft DEWR compliance audit report was cancelled by DEWR and in lieu of the meeting SunWater prepared a letter to answer the questions raised by Mr Smith. Ms Pomplun prepared a draft response to Mr Smith's questions on 22 November 2007 that responded to his question regarding "whether the fishlift has been operating as intended ..." by stating in reply that the upstream fishway had been "plagued with mechanical failure." On 22 November 2007 Mr Danny Green, acting as an employee of SunWater and agent of the respondent, stated in an email in relation to the draft response prepared by Ms Pomplun, inter alia , that: I suggest that the words responding to whether the fishlift has been operating as intended should be modified. The audit did not come down too hard on this aspect so I don't [sic] think we should include comments like "plagued with mechanical failure". Mr Green's email on 22 November 2007 in relation to Mr Pomplun's draft response was copied, inter alia , to Peter Boettcher, Chief Executive Officer of SunWater and Chief Operating Officer of the respondent. On 23 November 2007, Mr Boettcher wrote, as Chief Operating Officer of the respondent, to DEWR in lieu of the meeting planned for 22 November 2007 and responded to the question from DEWR particularised in paragraph 73 above by stating: The upstream fishway operating range is EL 44.44m to EL66.66m. The fishway became operational when the dam commenced in December 2005. The fishway has not been operated as intended due to: December 2005 to March 2006 represented the commissioning phase of the fishway; Initial mechanical problems were experienced during March 2006 to June 2006; During the period June 2006 December 2006, the fishway operation was interrupted by the construction of the mini-hydro facility at the Dam; Advice was received in August 2006, from the Burnett Dam Alliance (BDA), to cease operating the fishway at the then current level of EL 49.09m, due to concerns by BDA that the fish hopper might hit a submerged rock pimple ( Evidence Doc No. 14 ). The storage continued below this level from August 2006 to October 2007. Investigations during July to September 2007 by [Burnett Water Pty Ltd (BWPL)], found that the fishway could in fact be operated to the full lower operating level of EL44.44m, without damaging the hopper. On 10 October 2007, a correction was received from BDA that the fishway could operate to the EL 44.44m ( Evidence Doc No. 15 ) and operation of the fishway recommenced with on-site supervision. The current operation will be monitored to assess any further operational issues, whilst the operator is on-site. Once reliable operation is confirmed, continuous operation of the fishway will recommence. The statements by Mr Boettcher in his letter to DEWR of 23 November 2007, particularised in paragraph 78, acknowledged that: (a) condition 3 of the approval required continuous operation; and (b) the respondent knew it had failed to operate the upstream fishway for long periods. The conduct engaged in by Mr Boettcher, set out in the preceding paragraphs, was engaged in on behalf of the respondent by Mr Boettcher as an employee of the respondent with in the scope of his actual or apparent authority. In the premises, that state of mind of Mr Boettcher in engaging in the conduct set out in the preceding paragraphs was the state of mind of the respondent pursuant to section 498B(2) of the EPBC Act. In the premises, the respondent, through its employees and agents, knew that the upstream fishway had not operated for long periods during 2006 and 2007 and the respondent knew that this contravened or may contravene condition 3 of the approval. There are a number of criticisms that were made, legitimately, in my opinion, in relation to these paragraphs. As a general proposition the paragraphs plead evidence rather than material facts. That aside, paras 79 - 82 are particular conclusions related to Burnett Waters having acknowledged that condition 3 of the approval required continuance of operation and then Burnett Water knowingly contravening that. The submission is made that these allegations going to the subsequent conduct are irrelevant.


case_outcome: distinguished

case_text: analysis, that reliance can be seen to be misconceived, for the following reasons: (a) Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39. The foundation for the injunctive relief sought in that case under s 475 was an alleged breach of s 12 of the Act. An element of s 12 is that the action concerned either have a significant impact on world heritage values or be likely to have such an impact in respect of a declared world heritage property. In contrast, "significant impact" is - unless it has in some way in the wording of a condition in a particular case, and this is not one of no relevance at all in respect of whether there has been a contravention of a condition of the kind with which s 142 is concerned. (b) Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 ; (2004) 138 FCR 198. In that case, the injunctive relief sought pursuant to s 475 had as its foundation an alleged breach of s 16 of the Act as read with s 17. Regard to s 16 discloses that it, too, has a "significant impact" element akin to that found in s 12, but in this instance focused upon the ecological character of a declared RAMSAR wetland. For reasons already given in respect of Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play here in relation to the alleged breach of the condition and hence a contravention of s 142. (c) Brown v Forestry Tasmania (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In this case, the alleged contravention grounding injunctive relief was a contravention of s 18 of the Act. Regard to that section discloses that it, too, has a "significant impact" element, on this occasion related to listed threatened species included in the "extinct in the wild" category. Again, for reasons given in relation to Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play in this case in relation to s 142.


case_outcome: cited

case_text: is convenient also to make some comment in respect of what one might term a root authority in relation to factors that are relevant in deciding whether or not, in planning and environment cases, to grant injunctive relief as a consequence of a failure to comply with a condition of land use or with an unlawful use of land in some other way. That case is Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. In that case (at page 339), Kirby P, as his Honour then was, sets out a number of guidelines for the exercise of a court's discretion in relation to the granting of injunctive relief. Whilst whether or not injunctive relief should be granted in the present case is dependent upon the terms of s 475 and also is informed by s 479, his Honour's guidelines nonetheless have a persuasive value. So, too, so far as the granting of injunctive relief is concerned as a matter of discretion, do remarks made in the Queensland Court of Appeal in NRMCA (Queensland) Limited v Andrew (1993) 2 Qd R 706 at 713. These remarks were made in the context of the width of the discretion granted to the court under Queensland's Local Government (Planning and Environment) Act 1990 (Qld). It was that stated that the discretion to grant or refuse an injunction is not constrained by any rule that it must enjoin the illegality unless special circumstances are shown. The court rejected a submission that there was a prima facie right to an injunction in the case before it, instead endorsing that the correct approach was to treat the matter as necessitating the exercise of wide discretion. Paragraphs 53 - 59 are as follows: Representations made to obtain approval In seeking to obtain the approval the respondent submitted an environmental impact statement ("the EIS") to the Minister in September 2001 that, inter alia , proposed to install a fish transfer device to mitigate impacts on the passage of fish movement caused by the construction of the dam at an estimated cost of $1,492,000 within an overall project cost then estimated at $180,864,000. The fish transfer device was proposed by the respondent in the EIS to mitigate the impacts of the dam on a number of fish species, including lungfish. On 4 November 2002, Mike Montefiore, then Director of the respondent, wrote to the department then administering the EPBC Act, Environment Australia, regarding actions the respondent proposed to take focussed on the lungfish and giving commitments to implement a range of initiatives "to ensure the ongoing health fo the species." In his correspondence of 4 November 2002 Mr Montefiore stated that the project specific actions to protect lungfish to be undertaken by the respondent were, inter alia : incorporation of a fishway into the Burnett River Dam ... to allow downstream and upstream passage of fish, including lungfish. The fishway has been designed to accommodate the lungfish. Based, inter alia , on the respondent's commitments to incorporate a fish transfer device into the dam, between or about 3 April 2003 and 29 July 2003 Environment Australia and the respondent negotiated and agreed to additional conditions to be attached to the approval focused on the lungfish. The respondent represented to Environment Australia on or about 26 June 2003 that the additional conditions were: ... specifically relevant to the lungfish that would, in the opinion of Burnett Water Pty Ltd and its expert advisers, be appropriate to protect the lungfish and mitigate damage to the lungfish from the construction and operation of the Burnett River Dam. The additional conditions attached to the approval of the dam by the Minister on 8 August 2003 adopted to the respondent's commitments to "a suite of initiatives to address the long-term survival of the Australian lungfish." These paragraphs are directed to allegations in respect of representations said to have been made on behalf of Burnett Water in order to obtain the approval subject to conditions. They are not relevant to whether or not the condition has been breached. In relation to whether, as a matter of discretion, injunctive relief should go, it is possible to see how, having regard to Warringah Shire Council (1987) 10 NSWLR 335 and the NRMCA (Queensland) Limited (1993) 2 Qd R 706 , evidence of what was put to the Minister might have a relevance if what was constructed was something completely different.


case_title: Warringah Shire Council v Sedevic (1987) 10 NSWLR 335


case_text: broad factual background to the proceedings is described in an earlier interlocutory judgment which I gave on 12 December 2008, Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900. The most convenient way to deal with the challenge made is, first, to make some particular comments on the general submission advanced on behalf of the Conservation Council: that the paragraphs under challenge were factors going to the exercise of a discretion to grant injunctive relief, and therefore necessarily pleaded in the statement of claim so as to avoid Burnett Water being taken by surprise. In that regard, a number of decisions of this Court in which a question of the granting of injunctive relief under s 475 of the Act were relied upon.


case_text: practice application is a sequel to an order which I made on 18 March 2009 striking out the then existing statement of claim for reasons which I then published: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237. Having so done, I granted leave to the Wide Bay Burnett Conservation Council Inc (Conservation Council) to file and serve an amended statement of claim. In today's application, Burnett Water Pty Ltd (Burnett Water) seeks the following orders in respect of the amended statement of claim: that paras 35 - 43, 45, 46 - 90 and 96 - 98 be struck out. In Professor Cairns' work, Australian Civil Procedure (6 th Ed) at page 160, the following statement is made in respect of the Australian position relative to the system of pleadings which developed in England following the Judicature Act 1875 (UK) (Judicature Act) reforms: The same system was later introduced into the Australian jurisdictions. The system of pleading initiated by the Judicature Act 1875 is still in force, although with some modifications. Supreme Courts in the Australian States and Territories are courts of unlimited jurisdiction. Their rules adopt the procedural concepts of the 1883 revision of the English rules of 1875. That particular observation made by Professor Cairns commended itself to the authors of Bullan and Leake and Jacob's Precedents of Pleadings (16 th Ed) at para 1-08 as a good background in respect of the Australian position. Professor Cairns, in the paragraph quoted, speaks of the position in relation to the Supreme Courts of the States and Territories. Whilst a purist might these days debate the proposition as to whether or not truly those courts are courts of unlimited jurisdiction, having regard to the impact of Federal statute law conferring exclusive jurisdictions on this Court, the proposition about the taking up of the Judicature Act rules which Professor Cairns makes in respect of the Supreme Courts, has, so far as the essence of the pleading rule in this court is concerned, equal resonance. By that I mean that in O 11 r 2 one finds familiar language having regard to post-Judicature Act pleading rules. That rule provides as follows: Subject to these rules: (a) a pleading of a party shall contain and contain only a statement in summary form of the material facts on which the party relies but not the evidence by which those facts are to be proved. Order 11, rule 16 of this Court's rules provides: Where a pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of process of the court, the court may at any stage of the proceeding order that the whole or any part of the pleading be struck out. It is under this rule that Burnett Water seeks the striking out of the paragraphs identified.


case_title: Glass v Demarco [1999] FCA 482

case_text: In Glass v Demarco [1999] FCA 482 , a bankruptcy petition was before the court. The debtor filed an affidavit in which he gave evidence about an offer of compromise in another court proceeding. Objection was taken by the petitioning creditor to the admissibility of that evidence who relied on s 131(1) of the Evidence Act . The debtor relied on s 131(2)(i) of the Evidence Act . At par [10] Emmett J said: "... The contention, as I understand it, is that a right of the debtor is affected by the offer because the debtor, by reason of the offer, has a right to accept it and thereby create a contract of compromise. I consider that the reference to a right in s131(2)(i) is to an existing right and it is not satisfied by reason of a right coming into existence upon the making of an offer." Although it might be said that the plaintiff had at the date of the conciliation conference rights by virtue of his position as a director of the defendants, that right was not affected by the making of the communications in respect of which the plaintiff wishes to adduce evidence.


case_title: Talbot v NRMA Limited [2000] NSW SC 602

case_text: In Talbot v NRMA Limited [2000] NSWSC 602 , Hodgson CJ in Eq said at par [3]: "Mr Shand has referred me to s 121(3) of the Evidence Act , which states that privilege would not prevent the producing of evidence of a communication or document which affects the rights of a person. In my opinion, that cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person." I consider that these observations apply equally to the communications in respect of which the plaintiff wishes to adduce evidence. They do not affect in any direct way the actual rights of the plaintiff. 35 I do not consider that subpar (j) of s 131(2) is of any assistance to the plaintiff. Notwithstanding the provisions of subs (3) of s 131 , I am not satisfied that the circumstances identified by the plaintiff form any basis for suggesting that the communications in respect of which the plaintiff wishes to adduce evidence and the document which was handed to his legal advisers were made or prepared in furtherance of the commission of a fraud or of an offence or the commission of an act that rendered any person liable to a civil penalty. There is not sufficient evidence before me upon which I could form even a tentative or preliminary view that Ms Asciak was seeking to commit a fraud or an offence or an act that rendered her liable to a civil penalty. 36 The plaintiff relied in his written submissions on subpar (k) of s 131(2) of the Evidence Act . This was not addressed in oral submissions and there is no material before me upon which it could apply.


case_text: In Hardcastle v Advanced Mining Technologies Pty Ltd [2001] FCA 1846. Emmett J, in the course of analysing the right of inspection conferred by the subsection, considered that specific books should be identified. His Honour said at par [24]: "That does not mean to say that specific documents need to be identified by the former director. A former director would not necessarily remember every piece of paper that a Company had. However, in my view, the section requires that a person seeking to inspect books must identify at least specific categories or classes of books, which have some bearing on the relevant legal proceeding. There may be a question as to whether or not the former director is required to identify precisely how the relevant books are relevant or material to that proceeding. There must, however, be some indication of the nature of the books sought and the bearing that the books have on the proceeding in question." I agree with these observations and am satisfied that the ultimate formulation of the order sought by the plaintiff identified the books sought to be inspected with sufficient particularity. 50 The defendants submitted that the proceeding in the Federal Court did not relate to anything the plaintiff had done in his capacity as a former director of the defendant companies. 51 In Hardcastle v Advanced Mining Technologies (supra), Emmett J considered that there was a second possible limitation on the operation of s 198F(2) of the Corporations Act . His Honour said at par [25]: "...the proceeding must be a proceeding to which the former director is a party or believes might be brought against him or her or which he or she proposes to bring in his or her capacity as a director of the company . It would be curious if a person who, fortuitously, happened to have been a director of a company in the past would be entitled to access to books of the company that might be material to proceedings brought by that former director or which might be brought against the former director in a capacity totally unconnected with the capacity of the former director as a director. I do not express any firm or final view on that question at this stage because it does not arise in the application before me. Section 1303 authorises intervention by the Court where a person in contravention of the law refuses to permit inspection." Emmett J did not form a concluded view on this issue and I would, with respect, not read such a limitation into the provision. 52 The defendants submitted that on the proper construction of s 198F(2) of the Corporations Act the only right given to a director was to inspect such books of the company which came into existence during the period of seven years immediately preceding the date upon which the former director ceased to be a director of the company. I do not accept this construction of s 198F(2). The reference to seven years in the subsection is a reference to the period during which the right to inspect exists; that is to say, the right to inspect is a right which continues for seven years after the date upon which the person ceases to be a director of the company. If that right is exercised during that seven year period, it is a right to inspect books which may well have come into existence a considerable period before the date upon which the person ceased to be a director of the company, and it also is a right to inspect books which have come into existence after the date upon which the person ceased to be a director of the company. The period of seven years referred to relates to the period during which the right to inspect arises; it is not a period which relates to the period during which the books of the company came into existence. 53 The defendants submitted that the plaintiff was not proposing in good faith to bring a proceeding in the Family Court. They submitted that the lack of good faith was evidenced by the facts that in August 2006 both parties had been involved in a Family Court property dispute, they had been represented by highly qualified advisers, they had made a decision which was recorded in consent orders and that 18 months later it could not be said that the plaintiff was acting in good faith in raising the issues he had. The defendants pointed to the fact that the plaintiff was seeking to criticise the expert's report which had been given to the parties prior to the conciliation conference and that it had always been open to him to do so prior to the making of the final orders. In short, it was submitted that the plaintiff was not acting in good faith in bringing an application in November 2007 to rectify matters which were within his control prior to the making of the final orders.


case_title: Stewart v Normandy NFM Ltd [2000] SASC 344

case_text: A difficulty facing the plaintiff, which is relevant to the determination of the question whether he is proposing in good faith to bring the proceeding in the Family Court, is whether he is able at the present time to establish the factual background or foundation for his application otherwise than by unsubstantiated assertions: see Stewart v Normandy NFM Ltd (2000) 211 LSJS 41 at par [10]; Boulos v Carter (2005) 220 ALR 572 at par [31].


case_title: Boulos v Carter (2005) 220 ALR 572


case_title: Gordon v Tolcher [2006] HCA 62

case_text: By reason of the way I propose to proceed, those questions do not require my consideration, although I should say that my preliminary view would be that s 79 of the Judiciary Act , in the circumstances of this case, would allow there to be reliance by this Court on s 66 of the Act: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162 at 167-8; John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 80-1 and at 94-5; Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553 at 587-9, 650-1 and 607-9; Gordon v Tolcher [2006] HCA 62 at [4] .


case_outcome: considered

case_text: I am informed that there has been an appeal from that decision, but until that appeal is heard and determined, the order of the County Court and the application to VCAT stand as matters of which I should take cognisance. In those circumstances I need to consider, without more, whether or not this action brought by the applicant should be stayed. The principles in relation to a stay were set out, appropriately, in a number of the cases, but conveniently, the principles are set out by Mansfield J in Guglielmin v Trescowthick (No 3) (2005) 220 ALR 535 at [8]-[21]. 15 One starts with the important proposition that it is a fundamental principle that an applicant is entitled to have his or her action tried in the ordinary course of the procedure and business of the Court subject only to the exercise of judicial discretion on proper grounds as part of the Court's inherent powers. In this particular case there is already a question of the proper legal representation of the first respondent and in addition also there are the applications of the first and second respondents to have the whole application dismissed. Necessarily, they are matters that need to be determined before the applicant can go to trial in relation to this matter. If a stay is granted obviously it will affect the process by which the first and second respondents seek to have summary judgment and those matters will be stayed as well, as the whole proceeding being stayed itself. 16 In the unusual circumstances of this case, it is my view that a stay should be granted pending the hearing and determination of the matter before VCAT and I propose to so order. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice MIDDLETON. Associate: Dated: 21 December 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: P Hanks QC with T Cordiner Solicitor for the First Respondent: Russell Kennedy Counsel for the Second Respondent: A O'Brien Solicitor for the Second Respondent: Victorian Government Solicitor Date of Hearing: 20 December 2006 Date of Judgment: 20 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1817.html


case_title: John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65


case_title: Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553


case_text: Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005).


case_title: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406


case_title: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441


case_title: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505


case_text: Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005). 24 All that was referrable of course to the implications of the payment of $1,116,405.63 by Ms Hemming to TIL, following the sale of her Sydney residence on 4 February 2005; that payment appears to have been made out of the proceeds of a sale of that residence, which was effected for the gross price of $2,100,000 to a person identified by the evidence as an accountant of certain of the Sharman companies. There was no sufficiently detailed or otherwise cogent evidence as to who exercised the substantial or underlying control of decision making of TIL, or as to the basis of or reasons for such alleged indebtedness having crystallised in the first place. The state of the evidence as to the control of TIL was itself the subject of disputation before Moore J and senior counsel for the Sharman applicants sought to attribute error to his Honour's judgment for the further reason that he had failed to make a finding as to Ms Hemming's control, or otherwise, of that entity. The Sharman applicants postulated that the 'remark' made by Lindgren J at [13] of his Honour's reasons for judgment in Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 that '[Wilcox J] accepted [in the course of granting the Mareva relief on 22 March 2005] that the Sharman Companies were controlled by Ms Hemming by reason of a "client services agreement" between her and TIL dated 8 April 2002' was an 'unsure foundation for any finding of control of the Sharman trust or the Sharman companies [by Ms Hemming]', and was thus inappropriately or impermissibly relied upon by Moore J in formulating his reasons for judgment. That submission lacked merit, particularly in the light of [31] of Lindgren J's reasons for judgment in which his Honour paraphrased the two-fold acceptance, given in cross-examination by the solicitor acting for Sharman License and Sharman Networks in their application before Lindgren J, that TIL as trustee of the Sharman trust was the ultimate beneficial owner of all the shares issued in Sharman License and Sharman Networks, and moreover that Wilcox J had himself appeared to accept that in consequence of the client services agreement, Ms Hemming 'controlled the Sharman trust'. 25 The Music companies had submitted to Moore J that given the evidentiary shortcomings on a subject readily susceptible to documentary demonstration, inclusive of banking records I might add, there was in truth and reality no antecedent loan, that the transfer of those funds by Ms Hemming to TIL in Vanuatu constituted a sham transaction, and consequently that those monies remained her own property beneficially, and should have been identified and disclosed as such in her affidavit provided in the Mareva context. Once more, so it was asserted by the Sharman applicants, his Honour declined to make any concluded finding on the subject. The point is however that his Honour had been able to infer from the surrounding circumstances I have already outlined that there was some force in the Music companies' submission. But in any event his Honour was of the view that he could permit cross-examination of Ms Hemming on and in relation to those matters because at least doubt existed in relation to that area of enquiry. 32 It is readily apparent that the primary judge placed significant weight, and I think rightly so, upon the following findings made by Lindgren J in the context of the preceding interlocutory proceedings of Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 , being proceedings which I have referred to earlier. At [15] of his reasons for judgment, Lindgren J observed as follows: 'As noted earlier, the Sharman Companies were ultimately beneficially owned by TIL as trustee of the Sharman Trust, and, notwithstanding the reference to "discretion" and the right of termination, the client services agreement provided evidence before his Honour that TIL, including TIL as trustee of the Sharman Trust, was likely to act at the direction of Ms Hemming. Since TIL, as trustee of the Sharman Trust was the ultimate beneficial owner of all the issued shares in the Sharman Companies, there was evidence before his Honour to show that they were also likely to act at her direction.' Earlier, at [4], his Honour had observed: 'On 4 February 2005, Ms Hemming and Richard Kilmer-Barber settled a sale of their home at Castle Cove in Sydney to John Simon Myers for $2,100,000. Title was transferred on 16 February 2005. Ms Hemming and Dr Kilmer-Barber continued to occupy the property. Ms Hemming's interest in the home was apparently her only substantial asset within the jurisdiction. There was evidence before his Honour that Mr Myers occupied some role such as accountant or bookkeeper of the Sharman Companies. Ms Hemming was the Chief Executive Officer of the Sharman Companies. Out of the proceeds of sale, $1,116,405.63 was transferred to a bank account in Vanuatu... which is where the Sharman Companies are incorporated.' 33 After reviewing in some detail the Australian authorities relating to misuse or abuse of process and of Mareva orders, and also the evidence placed before him in the present segment of the proceedings, in particular that concerned with Ms Hemming's apparent control of Sharman Networks, and Wilcox J's conclusions thereon, Moore J expressed his satisfaction that Ms Hemming should be required to swear a disclosure affidavit in relation to Sharman Network's assets, largely for the reasons I have already canvassed and which I will reproduce below, the same having been the focus of much of the respective parties submissions made in the present interlocutory proceedings (at [36] and [37]): 'This leads to a consideration of whether [Ms Hemming] should be cross examined on her affidavits concerning disclosure of her assets. In my opinion, such an order should be made. The evidence points clearly to the structure reflected in the Sharman trust and the arrangements in Vanuatu more generally, having been established by [Ms Hemming]. Counsel for the applicants described that structure as opaque. This is in an apt description. However, it is, in my opinion, unnecessary for me to resolve some specific issues concerning that structure which were the subject of argument. One was whether the fourth respondent has a beneficial interest in the Sharman trust or at least has an interest which should have been identified in her disclosure affidavit. Not only is the evidence on this issue likely to be incomplete ([Ms Hemming] has proffered no evidence and almost certainly the applicants do not have all relevant records - they do not even have the trust deed) but it is also by no means clear to me how the law of Vanuatu would operate on the arrangements revealed, to this point, by the evidence. It would be unsatisfactory, dealing with the type of issues presently under consideration, to proceed on the basis that the law in that country can be presumed to be the same as the law of Australia: see The Parchim [1918] AC 157 at 161. The findings of Wilcox J... point towards a conclusion that she does have such an interest. If this issue is explored in cross examination then the Court will be left with a greater measure of certainty about whether she does. The transfer of the property by [Ms Hemming] to another... has several unusual features. It occurred at a time when final submissions were being made in the primary proceedings. Registration of the transfer occurred five days after the applicant's final submissions were served on the respondents. One can infer that the strengths and weaknesses of the respective cases would have been apparent to the parties and those advising them. The transferee was to a person associated with [Ms Hemming]. He was an accountant who had work [sic] for the Sharman companies. A significant part of the proceeds of the sale were paid to [TIL]... This was in settlement of what was said to be a loan. While some of the documents in evidence can be viewed as supporting the existence of a loan, they nonetheless suggest a loan was made after the property was purchased. That, itself, is unusual, though one must accept there may be an explanation for this including, as counsel for [Ms Hemming] pointed out, that the funds lent replaced bridging finance. But the evidence suggests that a loan was not secured by a mortgage. In all, real doubts arise about, and uncertainty surrounds, the reason why this transaction took place when it did and whether the moneys transferred to TIL were, in truth, in satisfaction of a loan or continues to constitute an asset of, and requires disclosure by, [Ms Hemming]. Greater clarity about this matter may arise from the cross examination of [Ms Hemming].'


case_text: Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) stipulates that an appeal shall not be brought from a judgment of the Court constituted by a single judge, being a judgment that is interlocutory in nature, unless the Court or a Judge gives leave to appeal. Although s 24(1A) does not purport to qualify or limit the Court's discretion (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 in the joint reasons for judgment of Sheppard, Burchett and Heerey JJ), the Courts have developed general principles which inform the exercise of the discretion to refuse or grant leave to appeal from an interlocutory judgment. The rationale for those principles is the public interest in the efficient administration of justice, and the maintenance of 'the integrity and vigour of the procedures of the court, including as they do, the immediate involvement of the judge at all stages in the progress of cases to trial' ( Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 104 ALR 165 at 173, per Gummow J). One consequence sought to be avoided is the expansion of expensive and delaying pre-trial litigation involved in appeals on issues of practice and procedure, and the concomitant reduction in the authority of the trial judge, should such appeals be frequently entertained ( Bomanite at 176, per French J). 7 At least for those reasons, this Court has held on a number of occasions that typically a party seeking leave to appeal from an interlocutory judgment ought to establish, first, that in all the circumstances, the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered by the Full Court, and secondly, that substantial injustice would result if such leave was to be refused, supposing the decision to have been wrong: see Décor at 398. That those two questions were the touchstone of exercise of discretion in matters of this kind was common ground between the parties. I observe that it is well accepted that those criteria are not to be applied rigidly or fixedly, and the Court must bear in mind all of the circumstances of the particular case: see in that regard Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177, where Gibbs CJ, Aickin, Wilson and Brennan JJ said: 'For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323: "...I am of the opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a Court of Appeal." ...It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.'


case_text: Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) stipulates that an appeal shall not be brought from a judgment of the Court constituted by a single judge, being a judgment that is interlocutory in nature, unless the Court or a Judge gives leave to appeal. Although s 24(1A) does not purport to qualify or limit the Court's discretion (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 in the joint reasons for judgment of Sheppard, Burchett and Heerey JJ), the Courts have developed general principles which inform the exercise of the discretion to refuse or grant leave to appeal from an interlocutory judgment. The rationale for those principles is the public interest in the efficient administration of justice, and the maintenance of 'the integrity and vigour of the procedures of the court, including as they do, the immediate involvement of the judge at all stages in the progress of cases to trial' ( Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 104 ALR 165 at 173, per Gummow J). One consequence sought to be avoided is the expansion of expensive and delaying pre-trial litigation involved in appeals on issues of practice and procedure, and the concomitant reduction in the authority of the trial judge, should such appeals be frequently entertained ( Bomanite at 176, per French J).


case_text: At least for those reasons, this Court has held on a number of occasions that typically a party seeking leave to appeal from an interlocutory judgment ought to establish, first, that in all the circumstances, the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered by the Full Court, and secondly, that substantial injustice would result if such leave was to be refused, supposing the decision to have been wrong: see Décor at 398. That those two questions were the touchstone of exercise of discretion in matters of this kind was common ground between the parties. I observe that it is well accepted that those criteria are not to be applied rigidly or fixedly, and the Court must bear in mind all of the circumstances of the particular case: see in that regard Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177, where Gibbs CJ, Aickin, Wilson and Brennan JJ said: 'For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323: "...I am of the opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a Court of Appeal." ...It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.'


case_outcome: discussed

case_text: It was the Music companies' contention that the orders of Moore J, from which leave to appeal is now sought, determined matters of practice and procedure within the foregoing statements of principle, involving as they did the obligation of Ms Hemming to submit to cross-examination on affidavits made by her in early April of this year, and to file a separate affidavit disclosing the assets of Sharman Networks. Those obligations were said to be no different in principle to any other interlocutory procedural order of the court, whether made pre-trial or during a trial, requiring parties to swear affidavits, to answer questions in cross-examination and to provide documentation. On the question of what constitutes 'substantial injustice' for the purposes of determining an application for leave to appeal, counsel for the Music companies placed particular reliance upon the decision of the Full Federal Court delivered earlier in the primary proceedings, which denied leave to appeal from a decision by Wilcox J refusing to set aside Anton Piller orders that his Honour had earlier made: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373. I will refer further to that authority shortly. 13 The Music companies, for their part, placed particular reliance upon the joint reasons for judgment of Black CJ and Stone J in Brilliant Digital for the approach that they contended ought to be adopted in my consideration of the present application for leave to appeal. In refusing leave to appeal from Wilcox J's decision to decline to set aside earlier Anton Piller orders that had been made in the course of the subject litigation, their Honours were said not to have considered at all the merits of the contemplated appeal there in issue. The following passages appearing at [7]-[8] and [13]-[14] of their Honour's reasons for judgment in Brilliant Digital were asserted by the Music companies to be apposite to the present application: '[7] In our view these matters [the matters contended by the applicants to amount to substantial injustice] would not, either individually or cumulatively, occasion injustice to the applicants of such a character and to such a degree as to justify the grant of leave. While it is neither necessary nor appropriate to attempt to define the concept of substantial injustice some observations may be ventured. The flexibility of the principles governing the grant of leave to appeal indicates that the concept of substantial injustice must also be flexible. The requirement of leave to appeal indicates, however, that substantial injustice requires something more than that the subject decision is incorrect, otherwise the criterion would be superfluous. The qualification of "injustice" by "substantial" points to a detriment that, while not necessarily irreparable, is more than mere inconvenience or delay in the exercise of a right . [8] The distinction between interlocutory decisions concerning matters of practice and procedure and those that concern the substantive interests of the parties recognises both the greater likelihood of an incorrect decision as to a substantive right causing substantial injustice and the importance of preserving a judge's power to supervise the orderly preparation of a matter for trial. In determining whether there has been substantial injustice it is appropriate for the court to take these factors into account. The need to keep a tight rein upon interference with orders at first instance that do not determine substantive rights has even more force today in the context of procedural reforms and active case management undertaken with a view to the early identification of the real issues between the parties and the expeditious and efficient resolution of them... [13] The challenged orders were plainly directed to matters of practice and procedure and did not determine any substantive rights. They were directed to the capture and preservation of certain data and information and this purpose has now been effected. Importantly, the applicants for leave do not seek to reverse this by destruction of the material seized pursuant to the challenged orders. The primary judge has now made orders relating to the use of the material seized including its safekeeping by an independent party and, subject to appropriate confidentiality undertakings, the making of a safety or backup copy of the material. Orders have also been made granting preliminary access to the material for the purpose of any application that includes material not falling within the challenged orders. The music companies are to have only such access to the seized material as would be normally available on discovery. This shows that there is presently in train an orderly process for the management of the seized material in which the interests of both parties will receive due consideration. [14] In these circumstances we are far from satisfied that substantial injustice would follow from refusing the application for leave to appeal and, on that basis, we would refuse leave to appeal. That being so we do not propose to comment on the correctness or otherwise of the decision of the primary judge. Nothing we have said should be taken as suggesting that the making of the challenged orders was not a serious matter requiring very careful consideration by the primary judge; plainly, whether or not the applicants are correct in their contention that his decision was erroneous, the application for the challenged orders and the subsequent application to set them aside did receive consideration of that character.' (The emphasis appearing in [7] above in non-italics is mine). 14 The Music companies contended that the orders made by Moore J were truly interlocutory in nature, rather than substantial in effect, being directed to 'the capture and preservation' of assets of the Sharman applicants pursuant to the Mareva relief granted. They pointed out that Moore J had reached his decision to impose those orders after careful application of the relevant legal principles, with due consideration of the lengthy evidence put before him by both parties. Moreover, Moore J was said to have made it clear in [39] of his reasons for judgment that any cross-examination would be subject to the control of the Court, thereby limiting any prejudice that may be suffered by Ms Hemming or the other applicants. In those circumstances, counsel for the Music companies further contended that the applicants had failed to show that the obligations imposed upon them by Moore J amounted to anything greater than 'mere inconvenience'. On that footing, the Music companies concluded that the Sharman applicants had failed to overcome the threshold requirement of establishing substantial injustice, and that leave to appeal should be refused on that basis alone. Acceptance of that proposition was said to have the consequence realistically that consideration of the draft grounds of appeal from Moore J's judgment as formulated by the Sharman applicants, would not be necessary. There is considerable force in those submissions of the Music companies. 15 The Sharman applicants submitted that Brilliant Digital was distinguishable from the present circumstances because in the former instance, the orders the subject of application for leave to appeal arose from an Anton Piller order that had already been executed, but in the present case, Ms Hemming was yet to be cross-examined and had not, as at the date of hearing of the application, sworn an affidavit for instance on behalf of Sharman Networks. I should interpolate to record that subsequent to reserving judgment on the question of leave to appeal, the Sharman applicants applied for a stay on Moore J's order requiring Ms Hemming to file that affidavit, and that I refused to grant that stay, but made orders requiring the affidavit to be left in a sealed envelope to be opened only upon further order of the Court. Because a Full Court on appeal is in a position to intervene in relation to the subjection of Ms Hemming to Moore J's orders, and because those orders were made, on the Sharman applicants' case, erroneously by his Honour, it was contended by the Sharman applicants to be unjust if leave to appeal was not to be granted in relation to his Honour's orders. 16 The Sharman applicants further submitted that the Full Court 'regularly' grants leave to appeal where it can be shown that the exercise of a discretion has miscarried, and where that miscarriage in the exercise of a discretion involves an important question of principle, citing as authority Wong at [22]. In Wong , the Full Federal Court held that the primary judge had failed to correctly apply the relevant legal test grounding the order made below. No mention was made by the Full Court of the need to establish 'substantial injustice' before a grant of leave to appeal is to be made. Counsel for the Music companies submitted in response that Wong was of no assistance, since it was a decision made as a result of the primary judge having ordered the filing of interrogatories in the absence of evidence from the party sought to be interrogated going beyond a 'mere allegation'. So much was said to stand in contrast with the considerable array of evidence provided respectively to Wilcox, Lindgren and Moore JJ at various interlocutory stages concerning Ms Hemming's control of the Sharman companies and a related and involved trust estate. In any event the Music companies submitted that the Court's decision in Wong must be read subject to the later reasons of the Full Court in Brilliant Digital , which required inter alia that 'substantial injustice' be shown. There is in my opinion clear force in those submissions of the Music companies. 34 With respect to the carefully as well as forcefully presented submissions made to the Court by senior counsel for the Sharman applicants, I am unable to distil material or significant error in the approach of the primary judge. It was readily to be inferred by the primary judge, from the material placed before his Honour, that Ms Hemming did exercise what his Honour described as a central role in relation to the business of Sharman Networks, and moreover that Mr Gee, who was put forward by the Sharman applicants as having performed that role, was '... only in form an appropriate person' to have provided the principal affidavit evidence on behalf of the Sharman companies. I have not found the observations appearing in the English authorities, to which I have been referred by the Sharman applicants, and which I have extracted, to be of assistance, at least in contextual circumstances such as here involved, where the Sharman applicants have resorted to offshore transactions bearing no evident commercial significance, at least of transparency, and did so, in part, co-incidentally upon the unsuccessful involvement of the Sharman parties and their entities in the very substantial Universal Music litigation which concluded on the question of liability on 5 September 2005. At least in circumstances such as those, the description 'Star Chamber interrogatory procedures' is inapposite. Moreover in line with the observations made in Brilliant Digital , the orders here complained of are in substance at least presently concerned with 'matters of practice and procedure', and not 'substantive interests of the parties'. 35 Largely upon the footing of the foregoing findings, and his Honour's further findings as to the Sharman companies' principal deponent of affidavit evidence (being Mr Gee) having been '... only in form an appropriate person', though not in substance, and instead his having been essentially 'a cipher', I am unable to accept otherwise than that the primary judge was correct in his view that '[i]t is not possible to be affirmatively satisfied that [the disclosure]... is now complete', and further, in pointing out that Mr Myers' testimony did '... not provide sufficient assurance that Mr Gee's affidavits can, on their face, be accepted as constituting a full disclosure'. 36 In the light of my preceding discussion and analysis I also think that his Honour was right to have concluded in the following terms at [39] in the course of rejecting the Sharman applicants' contention that the subjection of Ms Hemming to cross-examination amounted to an abuse of the Court's process: 'I accept that the [Music companies] would wish to ascertain who are the real and effective controllers of the Sharman companies. I also accept that this may become a matter about which questions might be asked if the orders sought by the applicants are made. However if that becomes a legitimate area of cross examination (bearing in mind that any cross examination will be subject to the control of the Court) it will be for a legitimate purpose and not an illegitimate and collateral one. I do not accept the criticisms of the way the [Music companies] identified and characterised the breaches of the disclosure order. In particular, [Sharman License and Sharman Networks] elected to provide the disclosure affidavits required of them from a person appropriate in form but not in substance. The [Music companies], who necessarily cannot be certain from their own knowledge of the matters to which the disclosure affidavits related, were entitled to review critically the affidavits proffered by [those Sharman companies]. All the more so given the opaque structure reflected in the Sharman trust and the arrangements in Vanuatu more generally and referred to above. While some of the criticisms were not significant, they included the failure to disclose significant sums held by lawyers on trust. I am not satisfied that the application should be dismissed for the reasons advanced by the [Sharman applicants].' 37 In making order 3 on 17 November 2005, it was submitted that Moore J also fell into error. The effect of order 3 was said to extend the 'freezing order' to the assets of Sharman Licence, which was erroneous because his Honour had overlooked the implications of the circumstance that Wilcox J had found in the main proceedings that such company had been completely successful and the claims made against it had been wholly dismissed. Thus at [40], his Honour held as follows: 'In view of (Wilcox J's) conclusions concerning the liability of [Sharman License], no such order should be made concerning that company.' It was apparently common ground moreover that Sharman Licence was a wholly owned subsidiary of Sharman Networks. So much was said by the Sharman parties to have been 'entirely overlooked' when his Honour concluded at [40] of his reasons as follows: '... the proposed order is intended to bind existing respondents and prohibiting them from "causing or permitting any wholly-owned subsidiary" from dealing with its assets subject to the exceptions in the order as originally formulated. This appears to me to be an appropriate extension of the original Mareva order and will ensure that assets of the respondents held, indirectly, through wholly-owned subsidiaries, will be controlled in the same way and for the same purpose as assets directly held to which the Mareva order presently applies.' I am unable however to comprehend why Sharman License's subsidiary status in relation to Sharman Networks should exclude it from the operation of the order of the Court below, which understandably was so framed as to extend to 'any wholly owned subsidiary.' As pointed out by the Music companies, such an order does not have the effect of extending the Mareva order to Sharman License's assets, per se , but rather, the order prevents 'Sharman Networks from causing its subsidiaries to dispose of their assets'. 38 In the result, I am of the opinion that the application of the Sharman parties for leave to appeal addressed in these reasons must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 January 2006 Counsel for the First, Second and Third Applicants: J M Ireland QC Solicitor for the First, Second and Third Applicants: Clayton Utz Counsel for the First to Thirtieth Respondents: R Cobden SC and J M Hennessy Solicitor for the First to Thirtieth Respondents: Gilbert + Tobin Date of Hearing: 30 November and 1 December 2005 Date of Judgment: 5 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1.html


case_text: The Sharman applicants sought to emphasise the existence of practical burdens imposed by the orders made by Moore J on 17 November 2005, although in reality it was principally with respect to the order for cross-examination of Ms Hemming to which that assertion was directed. They maintained that the requirement to appear for cross-examination was not analogous to the 'routine steps' of swearing an affidavit during the normal course of a trial and entering the witness box to answer questions related to its contents. Rather, the requirement to be cross-examined on an asset disclosure affidavit was said to be 'at the extreme end of the Court's armoury', by virtue of the fact that the making of an order for cross-examination on an affidavit of this kind is predicated upon the Court having implicitly found the deponent of that affidavit to be in contempt of court. I was referred by the Sharman applicants to an earlier Full Federal Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 in support of their submission that since the present circumstances give rise to an important question of principle, leave to appeal should be readily granted. 10 The affidavit filed in support of the application for leave to appeal by Mr Rohan Higgins, the solicitor for the Sharman applicants, contained the following broad submission under the heading '[i]njustice if leave is refused': 'If leave to appeal is not granted then the orders of Moore J will operate and will have to be complied with. Any subsequent challenge to those orders would then be futile and academic. The orders are interlocutory in form but final in the result in relation to the issues raised.' So much is correct as a general statement as to the consequences of his Honour's orders. However, the nature and context of the application for leave here involved in practical terms an appeal, or virtually so, as will hereafter emerge. 11 The Music companies contended that the Sharman applicants' submissions proceeded in reality 'on the erroneous basis that every interlocutory decision that requires a party to do an act will be automatically susceptible to leave to appeal and to being stayed'. The Music companies' position was that the orders requiring Ms Hemming to file an affidavit disclosing the assets of Sharman Networks, and to attend for cross-examination on the affidavit she had earlier sworn as to disclosure of her assets, were merely procedural in nature and therefore, incapable as such of determining any final rights of the parties. So much accorded with Moore J's understanding of the nature of those orders, as indicated in [30] of his Honour's reasons for judgment. 16 The Sharman applicants further submitted that the Full Court 'regularly' grants leave to appeal where it can be shown that the exercise of a discretion has miscarried, and where that miscarriage in the exercise of a discretion involves an important question of principle, citing as authority Wong at [22]. In Wong , the Full Federal Court held that the primary judge had failed to correctly apply the relevant legal test grounding the order made below. No mention was made by the Full Court of the need to establish 'substantial injustice' before a grant of leave to appeal is to be made. Counsel for the Music companies submitted in response that Wong was of no assistance, since it was a decision made as a result of the primary judge having ordered the filing of interrogatories in the absence of evidence from the party sought to be interrogated going beyond a 'mere allegation'. So much was said to stand in contrast with the considerable array of evidence provided respectively to Wilcox, Lindgren and Moore JJ at various interlocutory stages concerning Ms Hemming's control of the Sharman companies and a related and involved trust estate. In any event the Music companies submitted that the Court's decision in Wong must be read subject to the later reasons of the Full Court in Brilliant Digital , which required inter alia that 'substantial injustice' be shown. There is in my opinion clear force in those submissions of the Music companies.


case_text: The primary submission made by the Music companies as to why leave to appeal ought not to be granted related to the failure of the Sharman applicants to adduce evidence demonstrative of the claim that they would suffer 'substantial injustice', should leave be refused. The Music companies rejected any notion to the effect that the mere fact of Ms Hemming being compelled to swear an affidavit as to disclosure of Sharman Networks' assets, and to attend for cross-examination upon her own disclosure affidavits, without more, amounted to 'substantial injustice', in the sense that such expression has been used in numerous authorities concerned with the grant of leave to appeal. Reference was made to Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22 ; (2002) 209 CLR 478, in which Gaudron, McHugh and Hayne JJ, in a different context, considered that the bare proposition that an order mandating 'trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice, [was] a startling proposition'. The reality of the dilemma in which the Court is placed by the present application is the need for consideration in some depth of the matters to which attention has been drawn by the Sharman applicants, before determining whether leave to appeal ought formally to be granted to appeal in the first place. The Sharman applicants relied upon a further passage from the majority's reasons for judgment in Gerlach at [13], as follows: 'The principles governing the grant of leave to appeal against interlocutory orders are well established...If it is plain that wrong principle was applied by the judge considering the application, it may well be that leave should be granted...'


case_text: Thus in Den Norske Bank ASA v Antonatos [1999] QB 271, Waller LJ (with whom Chadwick and Millett LJJ agreed) said in a passage at 290, upon which the Sharman applicants placed reliance: 'It is finally important to recognise that it is only in exceptional circumstances that cross-examination will be ordered on an affidavit sworn pursuant to a Mareva order: see House of Spring Gardens Ltd v Waite [1985] FSR 173 at 181, per Slade LJ. The anxieties expressed by Scott J in Bayer AG v Winter (No 2) [1986] 1 WLR 540 relating to the court wanting no part of a star chamber process must constantly be borne in mind...' The passage from the reasons for judgment of Slade LJ in House of Spring Gardens, referred to by Waller LJ above, reads as follows: 'I can very well see that on the particular facts of many cases perhaps most cases the court might not consider it "just and convenient" to order the cross-examination of a defendant who has filed an affidavit in purported compliance with a Mareva order, in a case where the plaintiff has not yet seen fit to issue a motion for contempt and is not seeking an order for the swearing of a second affidavit by the defendant concerned...' Whether there has occurred 'purported compliance with a Mareva order' must surely be viewed in terms of substance as well as mere form. Lord Justice Slade made those remarks in the course of overruling the decision of Scott J at first instance, which decision had been to the effect that a court did not have the power under s 37 of the Supreme Court Act 1981 (UK) to make an order requiring cross-examination ancillary to compliance with a Mareva order, in the absence of circumstances whereby a justiciable issue is before the Court in respect of which the evidence of the deponent is relevant to the resolution thereof, for instance where the deponent of the disclosure affidavit was the subject of a contempt motion. The 'anxieties expressed by Scott J', and also referred to by Waller LJ in Den Norske Bank , appear in Scott J's earlier reasons for judgment in Bayer AG v Winter (No 2) [1986] 1 WLR 540. In that latter case, Scott J was concerned with an application seeking orders that the defendant submit to cross-examination on a wide range of matters in aid of earlier Anton Piller and Mareva orders made by the Court. Scott J referred to the scope of the cross-examination contemplated at 543 as follows: 'Mr Prescott [for the plaintiff] made clear that the purpose of his proposed cross-examination of the first defendant is a free-ranging one. He proposes to question him as to the whereabouts of his assets world-wide. He proposes to question him as to his knowledge of and part played in transactions in counterfeit Baygon wherever they may have happened.'


case_title: House of Spring Gardens Ltd v Waite [1985] FSR 173


case_text: Thus in Den Norske Bank ASA v Antonatos [1999] QB 271, Waller LJ (with whom Chadwick and Millett LJJ agreed) said in a passage at 290, upon which the Sharman applicants placed reliance: 'It is finally important to recognise that it is only in exceptional circumstances that cross-examination will be ordered on an affidavit sworn pursuant to a Mareva order: see House of Spring Gardens Ltd v Waite [1985] FSR 173 at 181, per Slade LJ. The anxieties expressed by Scott J in Bayer AG v Winter (No 2) [1986] 1 WLR 540 relating to the court wanting no part of a star chamber process must constantly be borne in mind...' The passage from the reasons for judgment of Slade LJ in House of Spring Gardens, referred to by Waller LJ above, reads as follows: 'I can very well see that on the particular facts of many cases perhaps most cases the court might not consider it "just and convenient" to order the cross-examination of a defendant who has filed an affidavit in purported compliance with a Mareva order, in a case where the plaintiff has not yet seen fit to issue a motion for contempt and is not seeking an order for the swearing of a second affidavit by the defendant concerned...' Whether there has occurred 'purported compliance with a Mareva order' must surely be viewed in terms of substance as well as mere form. Lord Justice Slade made those remarks in the course of overruling the decision of Scott J at first instance, which decision had been to the effect that a court did not have the power under s 37 of the Supreme Court Act 1981 (UK) to make an order requiring cross-examination ancillary to compliance with a Mareva order, in the absence of circumstances whereby a justiciable issue is before the Court in respect of which the evidence of the deponent is relevant to the resolution thereof, for instance where the deponent of the disclosure affidavit was the subject of a contempt motion. The 'anxieties expressed by Scott J', and also referred to by Waller LJ in Den Norske Bank , appear in Scott J's earlier reasons for judgment in Bayer AG v Winter (No 2) [1986] 1 WLR 540. In that latter case, Scott J was concerned with an application seeking orders that the defendant submit to cross-examination on a wide range of matters in aid of earlier Anton Piller and Mareva orders made by the Court. Scott J referred to the scope of the cross-examination contemplated at 543 as follows: 'Mr Prescott [for the plaintiff] made clear that the purpose of his proposed cross-examination of the first defendant is a free-ranging one. He proposes to question him as to the whereabouts of his assets world-wide. He proposes to question him as to his knowledge of and part played in transactions in counterfeit Baygon wherever they may have happened.' 20 The primary proceedings in Bayer concerned allegations of an organised system for the sale of counterfeit Baygon insecticide products. As at the time of the hearing before the presiding judge, no statement of claim had been filed. Moreover, no evidence proving the allegations of sale of counterfeit Baygon was placed before the presiding judge for the purposes of the application, and at no stage had the defendant had an opportunity to confront any such evidence. Counsel for the plaintiff had indicated to the presiding judge that pending receipt of certain answers in cross-examination, the plaintiffs were minded subsequently to pursue contempt proceedings against the defendant. It was in those somewhat extreme circumstances, well removed from the present context here presented that Scott J made the following emphatic statement (at 544) in the course of refusing the order sought for the cross-examination of the defendant, being dictum upon which the Sharman applicants placed reliance in the present context: 'Star Chamber interrogatory procedure has formed no part of the judicial process in this country for several centuries. The proper function of a judge in civil litigation is to decide issues between parties. It is not, in my opinion, to preside over an interrogation. The police, charged with the upholding of the public law, cannot subject a citizen to cross-examination before a judge in order to discover the truth about the citizen's misdeeds. How then, as a matter of discretion, can it be right in a civil case, in aid of rights which, however important, are merely private rights, to subject a citizen to such a cross-examination? A fortiori it cannot be right to do so in a case where the plaintiff seeking the cross-examination of the defendant is holding itself free to use the defendant's answers for the purpose of an application to commit him to prison for contempt.' I would respectfully withhold from any such somewhat characterisation of the present conduct of the Music companies in their pursuit of what seems to me to be both reasonable and authentic means designed to ensure that Mareva relief is afforded adequate facilitation and implementation in the context of Music companies' intellectual property protection and preservation upheld by the primary judge in the principal litigation. 21 Senior counsel for the Sharman applicants asserted that nowhere in the reasons for judgment of Moore J is there a finding that the disclosures made by Mr Gee of the assets of the relevant two Sharman companies were incomplete, or that the disclosures by Ms Hemming in her affidavits as to her own assets were incomplete. I would first observe that any finding of Moore J on the completeness, or otherwise, of Mr Gee's disclosure affidavits could not possibly have any bearing upon the appropriateness of his Honour's order requiring Ms Hemming to attend for cross-examination on her own affidavits, and any suggestion to the contrary is in my opinion incorrect. Moreover, any such conclusion begs the question as to the operation of the notion of 'incomplete', and the context in which it is used. The theme of the primary judge's concern was more in the nature of inadequacy and lack of clarity. Senior counsel for the Sharman applicants asserted that the Music companies had not demonstrated that Ms Hemming's assets included what he termed 'the beneficial interest in the Sharman companies' or that the 'loan transaction with TIL was a sham'. A present concern of the Music companies is indeed with the beneficial ownership of funds. In the case of tangible and intangible assets subjected to the interposition of a complexity of offshore established companies and trust estates purportedly controlled by an offshore trustee corporation, the task of gaining access to and control of those assets, in order to enforce onshore court judgments and orders, can be an expensive and formidable undertaking for a successful litigant. It was in the light of the complexity and opacity concerning Ms Hemming's apparent employment of a Vanuatu trust instrument that the primary judge observed for the time being as follows at [36]: '... it is, in my opinion unnecessary for me to resolve some specific issues concerning that structure which were the subject of argument. One was whether [Ms Hemming] has a beneficial interest in the Sharman trust or at least has an interest which should have been identified in her disclosure affidavit.' 22 Senior counsel for the Sharman applicants submitted that having failed to make a finding on this point, the primary judge appeared to have concluded that the power to order cross-examination should be exercised in order to allow the matter of any such beneficial ownership to be further explored, his Honour observing in that context at [36]: 'If this issue [was] explored in cross-examination then the Court will be left with a greater measure of certainty about whether she does [have an interest in the Sharman companies per medium of the Sharman trust].' 23 In further response to the primary judge's endeavours to distil an expedient means for the ascertainment relevantly of beneficial ownership, it was contended by the Sharman applicants that in circumstances such as the present, an order for cross-examination of a deponent 'cannot be made unless the Court is affirmatively satisfied that there has been a non-disclosure', all that being said to have involved 'a resolution of the arguments expressly eschewed by Moore J in [36] [of his reasons]'. I have difficulty with that contention. In the context of his Honour's review of some of the offshore as well as onshore transactions, his Honour had made the significant finding, along the way as it were, that the 'evidence ... suggest[s] a loan was made after the property was purchased...' and also that 'a loan was not secured by a mortgage'. Consequently his Honour was able to observe at [37] that '... real doubts arise about, and uncertainty surrounds, the reason why this transaction took place when it did, and whether the moneys transferred to TIL were, in truth, in satisfaction of a loan or continues to constitute an asset of, and requires disclosure by, [Ms Hemming].' In the circumstances I have thus far recorded, that was an apposite observation.


case_text: In respect of that finding, the Sharman applicants referred to Moore J's rationale expressed at [37] of his reasons for judgment and emphasised it as is indicated in non-italics: 'Greater clarity about this matter [being the transfer of funds to TIL on 4 February 2005] may arise from the cross-examination of [Ms Hemming].' From what I have already reviewed, there was ample justification for his Honour to have reached that view of the unusual transactional offshore circumstances in evidence before him. It was submitted however on behalf of the Sharman applicants that so much did not imply that Moore J was satisfied that there had not been compliance with the order of the court to disclose assets by Ms Hemming, which affirmative finding was of course contended by the Sharman applicants to be a prerequisite to the making of an order for cross-examination; I was referred for comparison to Planet International v Garcia (No 2) (1991) 1 Qd R 426, where the following appears at 427 of Thomas J's reasons for judgment: 'In the present case I am satisfied Mr Garcia has not adequately complied with the order of the Court. On the material before me, he has provided a collection of some untruthful statements, non-disclosures and qualifications...' I was also referred, by way of further comparison, to the following observations of the Court of Appeal in England in Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752 ; [2004] 1 WLR 113 at [147] : 'The piecemeal, late, untruthful and manifestly incomplete disclosure which the defendants gave amply justified the view that cross-examination was just and convenient because it might reveal assets which would make the freezing order more effective.' But of course those respective findings related to differing matters and circumstances, and neither finding was intended to be definitively exemplary, such as to exclude the need for further exploration.


case_title: Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752 ; [2004] 1 WLR 113


case_text: My reading of his Honour's reasons here was that he was far from satisfied with the nature or extent of the purported offshore structures and transactions to the extent apparent from the evidence, involving as they did the creation of a trust estate somewhat cognate to what have often been described as 'blind trusts'. Concerns of that nature appear to have persuaded or assisted to persuade the primary judge of the need to order that Ms Hemming submit to cross-examination on her disclosure affidavits. In determining to take that approach, his Honour paid regard to the relevant authorities dealing with both the grant of Mareva relief, and the making of orders ancillary to the same, including orders requiring the swearing of disclosure affidavits and cross-examination on those affidavits. After reviewing the relevant principles enunciated in those authorities, his Honour concluded at [28]: '...ultimately the cautionary words of the four members of the High Court in [ Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 403-404] set out at [18] above must be heeded. Orders made in the Court's ancillary jurisdiction must be founded on a doctrinal and principled basis. A Mareva order is protective of the Court's processes, including the efficacy of execution of those orders. Orders concerning disclosure affidavits and cross examination can, in turn, be made to render the Mareva order more efficacious. This is the touchstone for determining whether leave should be given to cross examine. A relevant consideration in determining whether leave should be given might, in an appropriate case, be the failure of the deponent of a disclosure affidavit to disclose assets completely or promptly or both. In such a case, leave might be given because doubts might arise about whether the deponent had understood and accepted the obligations and burdens imposed by the Mareva order and the ancillary order requiring the disclosure affidavit. Cross examination might be appropriate to test whether the disclosure affidavits fully revealed all assets on which the Mareva order operated and which might be available to satisfy any judgment. However, in other cases, other more significant factors might support the granting of leave to cross examine.' The 'cautionary words' of the High Court in Cardile earlier extracted by his Honour at [18] of his reasons below referred to the need for courts to exercise caution in making Mareva orders and to only do so upon a principled basis, having regard to the impact that those orders may have on respondents and third parties. 28 It was submitted nevertheless on behalf of the Sharman applicants that the premise upon which the application for an order for cross-examination order proceeded here was that Ms Hemming had breached the order requiring her to disclose her assets, and that the basis upon which the Music companies litigated the proceedings below was to seek to convince the primary judge that there had occurred inadequate disclosure, on the footing that Ms Hemming did have a substantial asset, namely beneficial interests in the Sharman companies, and further that the loan transaction with TIL was in truth a sham arrangement. Those issues were to have been debated before his Honour at length below 'but were never resolved'. Certainly the premise upon which the order is sought, as I have already sought to explain, was an inadequacy of disclosure of such matters in circumstances that indicated the need for further exploration and inquiry. 29 It was next asserted by the Sharman applicants that the high point of his Honour's conclusion below, both as to the so-called 'putative ownership by Ms Hemming of the Sharman Trust' and as to 'the existence or otherwise of the loan made by TIL to Ms Hemming repaid in February 2005', was that there was 'a lack of clarity' about the matter. My observation is however, that any such lack of clarity about the alleged loan and its repayment or partial repayment derives from its inherently commercially, inexplicable origins and purposes in the first place. It was submitted therefore to be an unprincipled exercise of discretion for his Honour to have ordered cross-examination in circumstances where the Music companies had not convinced his Honour upon either of those conditions which they had raised. In truth, so the submissions continued, his Honour fell into the error of making an order for cross-examination in circumstances where no basis had been demonstrated to the Court to make such an order. For reasons I have already ventured, the concerns relevantly expressed by his Honour were more than some mere 'lack of clarity'. 30 In conclusion therefore, it was the case of the Sharman applicants that Moore J failed correctly to apply the relevant legal principles in committing Ms Hemming to cross-examination on her disclosure affidavit, and that it must follow that the Sharman applicants would inherently suffer 'substantial injustice' if Ms Hemming be so required to submit to cross-examination in accordance with the relief granted by the primary judge. In short, the complaint was that Moore J gave leave for the cross-examination to take place because the Court might 'be left with a greater measure of certainty' [36], and further 'because cross-examination may lead to greater clarity' [37], and that so much exemplified errors in principle in the exercise of his discretion. 31 In my opinion, and for the reasons I have largely foreshadowed in my observations upon the submissions already recorded, the application for leave to appeal brought by the Sharman applicants has not sufficient cogency to justify the grant of any such leave. The case of the Music companies presented to the primary judge (Moore J) for relief of the nature and to the extent granted was sufficiently in line with established principle as to be clear from 'sufficient doubt'. I do not think that the United Kingdom and Australian authorities establish inflexible requirements to the extent postulated by the Sharman applicants, in particular concerning the Court's jurisdiction to grant leave to cross-examine the deponents of disclosure affidavits in Mareva contexts. His Honour's approach in particular to the issue of granting leave to the Music companies to cross-examine Ms Hemming was soundly justified in the light of the evidentiary circumstances concerning the Sharman applicants' offshore trust structure, and the circumstances of and context in which such a substantial sum of money was transferred to an offshore company in the amount and in the context that occurred.


case_outcome: followed

case_text: It is accepted by counsel that there is authority for the proposition that the specified time limit of 28 days can go to the issue of jurisdiction. Reference is made to Wang v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 717 at 721, where Merkel J said that reference to the 28 day time limit in s 478 was not merely directory, but specified an absolute mandatory requirement. 8 Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.


case_text: Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349. 9 In my view, these authorities do not assist the applicants in the present circumstances. In these matters, the instances of non-compliance did not go to jurisdiction and were of a non mandatory and non-essential nature. In Yong Jun Qin, for example, the applicant was allowed to amend an application and name the Minister as respondent in place of the Immigration Review Tribunal. In NABM, the applicant sought and was entitled to seek judicial review, although the application mistakenly referred to s 476 of the Migration Act 1958 (Cth) rather than s 39B of the Judiciary Act 1903 (Cth). In Rishmawi , an application for review of the Tribunal's decision was made in the form of a comprehensive letter. The letter did not strictly comply with the requirements of the Federal Court Rules but gave all the necessary information.


case_title: NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64


case_title: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611


case_outcome: referred to

case_text: Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.


case_title: Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349


case_text: In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [7] , Gleeson CJ referred to privative clauses as those clauses which deprive, or purport to deprive, courts of jurisdiction to review the acts of public officials or tribunals in order to enforce compliance with the law, or which limit, or purport to limit, such jurisdiction. Section 477 is not a provision which makes a decision final and conclusive such that it may not be challenged, appealed against, reviewed or called into question in any court. It contemplates a challenge and provides a challenge to be made in a timely way. Section 474 , which was the subject of consideration in S157 , attempted to exclude a challenge in clear terms. It is evident that s 477 does not purport to preclude judicial review but imposes a limitation on the time for initiating that review. In these circumstances, I do not consider there is any substance in the submission that s 477 gives rise to a privative clause which is invalid or unconstitutional. In my view, it is appropriate to construe clauses fixing time limits with due regard to the necessity to ensure that courts are able to properly exercise their jurisdiction in a timely manner. 15 Further submissions were made by counsel for the applicants regarding the desirability of having uniform extendable time limits for appeal and review of administrative decisions, as referred to in the Second Reading Speech for the Migration Litigation Reform Bill 2005 presented in March 2005. It is said that the purpose of s 477 is to avoid the potential unfairness of the strict 28 day time limit while ensuring timely handling of the application. In my view, the section does have the effect of extending the time limit and is a provision favourable to an applicant. 16 I do not consider that there is anything incongruous, capricious or unreasonable in the application of s 477 in the circumstances of the present case. Accordingly, I do not accept the submission that the clear language of s 477 can or should be read down on the basis that it produces such results. 17 Accordingly, for the above reasons, I am not persuaded that there has been any error demonstrated in the judgment of the Federal Magistrate and I dismiss this application with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 December 2006 Counsel for the Applicants: S. Thode Counsel for the Respondents: T. Wong Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 11 August 2006 Date of Judgment: 21 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1803.html