case_text: In Re Application of Vouris [2004] NSWSC 384 ; (2004) 49 ACSR 543 ( Vouris ), Barrett J had occasion to consider the relationship between s 499(5) and s 502 (at [8]-[10]). His Honour treated the s 502 power as an "overarching" power and exercised it in order to avoid the expense and inconvenience associated with the convening of a meeting of creditors (at [10]). Unlike the position in relation to the present five companies, that was a case of the appointment of multiple liquidators by the creditors. Accordingly, in that case, the creditors at least had approved of the identity of the continuing liquidator. Although that was not so in the present case, it was my view that a case was made out for the Court's exercising the power under s 502 and I followed that course. 54 During Mr Watson's time at Condon Associates, he and Mr Condon were appointed as liquidators of each of the nine companies identified in Schedule 4 to the Orders. In the case of eight of the companies, the winding up order and the appointment were by the Supreme Court of New South Wales. In the case of the remaining company, Pyoja Pty Ltd, the winding up order and the appointment were made by the Supreme Court of Victoria. 55 As noted at [40] above, s 473(1) of the Corporations Act provides that a liquidator appointed by the Court may resign. I also refer to rule 7.1 of the harmonised corporations rules of court (set out at [42] above). The evidence shows that written resignations signed by Mr Watson were filed in the Supreme Court of New South Wales and the Supreme Court of Victoria on 3 December 2008, and that notices of the resignations were lodged with ASIC either on that day or earlier. The effective date of Mr Watson's resignations in all nine cases was therefore 3 December 2008. 68 Uninstructed by authority, I would have assumed that where one of two liquidators ceases to hold office, the other succeeds to the office. Barrett J may have thought similarly: see Vouris at [12]. However, his Honour considered that there was a contrary indication in McPherson's Law of Company Liquidation (4 th ed, LBC Information Services, 1999) of which Professor Andrew Keay is the author. Footnote 237 at p 297 of that notable work states that where one of two joint liquidators dies, the appropriate course is for the Court to appoint another liquidator to act jointly with the survivor, or, in the alternative, to remove the survivor and reappoint him or her as sole liquidator. The learned author cites in support a decision of Sir Samuel Griffith, then Chief Justice of the Supreme Court of Queensland, in Re Aplin, Brown & Co Ltd [1902] St R Qd 67 ( Aplin ). Barrett J considered that the relevant provisions of the then Companies Act of Queensland were sufficiently similar to those of the Corporations Act to give rise to the conclusion that any difficulties of the kind suggested in that case "also conceivably arise under the present provisions" (at [13]). 69 Barrett J took the course of removing the continuing liquidator ( Vouris concerned, not the death of a liquidator but the suspension of the registration of a liquidator for three months by the Company Auditors and Liquidators Disciplinary Board) and reappointing him as sole liquidator in the exercise of the power in s 503 of the Corporations Act . 70 Sections 502 and 503 provide: 502 If from any cause there is no liquidator acting, the Court may appoint a liquidator. 503 The Court may, on cause shown, remove a liquidator and appoint another liquidator. Section 502 did not apply in Vouris because there was still a liquidator acting, and Barrett J considered that s 503 gave only a composite power to remove and appoint, not simply a power to appoint. His Honour noted the question whether the expression "another liquidator" means a liquidator other than the one removed, but concluded that it did not mean this. 74 I was minded to follow the course established by Aplin and Vouris of removing the continuing liquidator, Mr Condon, and appointing him as sole liquidator. However, the position must now be considered in the light of the recent amendments made by the Corporations Amendment (Insolvency) Act 2007 (referred to at [61] above). Consistently with the new s 530 (set out at [61] above), s 506(4) of the Corporations Act was repealed by that amending Act (see s 3, Sch1, Pt 3, Item 113.) 85 In Re Wallace Smith; National Express Group Australia (Bayside Trains) Pty Ltd (recs and mgrs apptd) (admins apptd) (2003) 46 ACSR 674, Finkelstein J had to deal with an application for the appointment of a substitute administrator where one of two administrators had resigned. In the present case, however, that is not the relief sought. In passing, his Honour referred to s 449C(6) which provides: Where a company is under administration, but for some reason no administrator is acting, the Court may appoint a person as administrator on the application of ASIC or of an officer, member or creditor of the company. His Honour observed (at [5]): On one view, which may be the correct view, this condition cannot be satisfied when one of two or more joint administrators have ceased to act for, in that event, it cannot be said that "no administrator is acting". It will be recalled that Barrett J took a similar view in the context of joint liquidators in Vouris (see [69] above).


case_outcome: discussed

case_title: (recs & mgrs apptd) (admins appted)s (2003) 46 ACSR 674

case_text: In Re Wallace Smith; National Express Group Australia (Bayside Trains) Pty Ltd (recs and mgrs apptd) (admins apptd) (2003) 46 ACSR 674, Finkelstein J had to deal with an application for the appointment of a substitute administrator where one of two administrators had resigned. In the present case, however, that is not the relief sought. In passing, his Honour referred to s 449C(6) which provides: Where a company is under administration, but for some reason no administrator is acting, the Court may appoint a person as administrator on the application of ASIC or of an officer, member or creditor of the company. His Honour observed (at [5]): On one view, which may be the correct view, this condition cannot be satisfied when one of two or more joint administrators have ceased to act for, in that event, it cannot be said that "no administrator is acting". It will be recalled that Barrett J took a similar view in the context of joint liquidators in Vouris (see [69] above).


case_outcome: cited

case_text: The general rule of law is that two or more trustees in bankruptcy "have only a joint and not a separate authority", although the exigencies of the circumstances of a particular bankruptcy may make it proper for one to leave certain tasks to the other without being liable for the other's default: see Ex parte Griffin; Re Dixon (1826) 2 GL&J 114 at 116, cited in Re Gudgeon; Ex parte Pegler (1969) 13 FLR 350 at 352.


case_title: Re Gudgeon; Ex parte Pegler (1969) 13 FLR 350


case_outcome: referred to

case_text: The approach urged on me by counsel for Billabong would be to "over-judicialise" the process of administrative decision-making: Bushell v Secretary of State for the Environment [1980] UKHL 1 ; [1981] AC 75 at 97; Kioa v West at 628-629. Indeed, it goes beyond an application for discovery because it requires access to the Registrar's entire file. There is no basis for such an order.


case_text: Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50].


case_outcome: applied

case_text: However, counsel for Billabong points to the well-known statement of principle of Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 that a person affected by the exercise of the power should be given an opportunity to deal with any adverse information that is "credible, relevant and significant" to the proposed decision. His Honour continued by saying: "It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information." 36 Counsel for the Registrar, Mr McCarthy, accepted that the provisions of s 487 of the Corporations (Aboriginal and Torres Strait Islander) Act were engaged and that the exercise of the Registrar's power was conditional upon observance of the rules of natural justice. He referred to well-known authorities which make it plain that procedural fairness is a flexible obligation to adopt fair procedures that are appropriate to the circumstances of the particular case: eg Kioa v West (1985) 159 CLR at 585, 612-613. 37 Plainly enough, the effect of s 71 of the Act and the applicable transitional provisions of the CATSI Act is that Mr Armstrong, as the relevant delegate, must be satisfied, after considering the material before him and the submissions or representations made by Billabong, that the grounds referred to in the Act have been established. 38 It is almost trite law that the rules of procedural fairness entitle a person in Billabong's position to know the grounds upon which Mr Armstrong proposes to rely and an opportunity to respond to matters adverse to its interests: Kioa v West at 585, 628; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [140] , [191]. 39 This does not mean that every piece of information and every document that comes before the decision-maker must be disclosed. The test to be applied in the ordinary case is that stated by Brennan J in Kioa v West at 629 in the words referred to above, namely that the person affected should be given an opportunity to the deal with adverse information that is credible, relevant and significant: see also Miah at [140], [191]. 40 Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50]. 41 What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552. 50 The approach urged on me by counsel for Billabong would be to "over-judicialise" the process of administrative decision-making: Bushell v Secretary of State for the Environment [1980] UKHL 1 ; [1981] AC 75 at 97; Kioa v West at 628-629. Indeed, it goes beyond an application for discovery because it requires access to the Registrar's entire file. There is no basis for such an order.


case_text: Counsel for the Registrar therefore relies upon the following statement of Kenny J, with whom O'Loughlin and Mansfield JJ agreed, in McLachlan v Australian Securities and Investment Commission [1999] FCA 244 ; (1999) 85 FCR 286 at [52] : "By seeking access to all documents relating to the subject-matter of the hearing, the appellants seek, in effect, to conduct a search into the ASIC's records about them. That is not a purpose sought to be met by the rules of natural justice."


case_outcome: considered

case_text: Billabong relies upon a series of cases in which this principle has been applied, including the decision of Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 ; (2001) 115 FCR 561 at [90] [94]. 12 Counsel for Billabong submitted that the history of this matter shows Mr Armstrong's view of what material is, or is not, required by the rules of procedural fairness, is so erroneous that I ought not accept his evidence that no further documents exist. In particular, counsel points to Mr Armstrong's view that it was unnecessary for him to furnish the Scolari Comerford and Ernst & Young reports, although he did so as a matter of convenience. 13 Section 60 of the Act provided, relevantly: "(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Incorporated Aboriginal Association and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Association disclosed by that examination. (2) The authorised person is entitled at all reasonable times to full and free access to the documents of the Association. (3) The authorised person may make copies, or take extracts from, any such documents." 40 Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50]. 41 What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552.


case_text: It is almost trite law that the rules of procedural fairness entitle a person in Billabong's position to know the grounds upon which Mr Armstrong proposes to rely and an opportunity to respond to matters adverse to its interests: Kioa v West at 585, 628; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [140] , [191]. 39 This does not mean that every piece of information and every document that comes before the decision-maker must be disclosed. The test to be applied in the ordinary case is that stated by Brennan J in Kioa v West at 629 in the words referred to above, namely that the person affected should be given an opportunity to the deal with adverse information that is credible, relevant and significant: see also Miah at [140], [191].


case_text: What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552.


case_title: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28; 70 ALJR 603

case_text: The Commissioner contends that the AAT was wrong in finding that the documents upon which it relied disclosed the gist of the advices in the necessary sense. The mere reference to legal advice does not disclose the gist or substance of it. However, the manner of reference to it may do so. The difference may be illustrated by the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12, albeit in the context of the Evidence Act ; (see also Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607). Devereaux submits that the question as to whether or not there has been a disclosure of the substance of advice is a matter of fact and degree rather than a question of law and that any error involved would not be an error of law. In my opinion, that is generally correct although, if the wrong test is applied, there can be an error on a question of law (cf Bennett [2004] FCAFC 237 ; 140 FCR 101 at [68] ). It is unnecessary to pursue detailed examination of this issue as, in my opinion, there are more fundamental questions to be addressed.


case_title: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12


case_text: It was put on behalf of Devereaux to the AAT that there was a reasonable suspicion that the relevant tax official had made a finding of tax avoidance by evasion for the improper purpose of seeking to extend the time limits imposed by s 170(2) of the Income Tax Assessment Act 1936 (Cth) and that the legal advices were procured for the purpose of, or utilised in the course of, effecting that improper purpose, although it was not suggested that counsel were complicit. Devereaux has a formidable task to establish this ground. The AAT referred to the relevant authority Attorney-General (NT) v Kearney and Northern Land Council [1985] HCA 60 ; (1985) 158 CLR 500 and then went on to reject the argument, giving detailed reasons for that conclusion. What is more, the AAT considered in detail the evidence given by the tax official said to have been motivated by the improper purpose and accepted his evidence, that being inconsistent with any finding of the alleged improper purpose. 23 The written submissions for Devereaux pointed to a number of features of the facts and circumstances which, it was contended, showed that the AAT was wrong. Counsel for Devereaux went through the facts in great detail during the hearing. Indeed, he unsuccessfully sought to tender further evidence. If accepted, the written and oral submissions for Devereaux might establish that the AAT was wrong in its conclusion that the exception did not apply. That is essentially a question of fact. In my opinion, the arguments advanced on this point would be appropriate if there were a full appeal from the AAT to the Court but there is not. I could detect no question of law in relation to which the AAT erred on this aspect of the case. The correct principle was identified and sought to be applied. There is no merit in the suggestion that the correct standard of proof was not applied. The appropriate standard was laid down in Kearney [1985] HCA 60 ; 158 CLR 500, the authority applied by the AAT. There is no reason why a party charged with improper conduct cannot confront that charge and defeat it, as occurred here. 24 The appeal will be upheld and the decision of the AAT that the Commissioner must give Devereaux access to the withheld documents, or (where relevant) parts thereof, in accordance with Part Q of the reasons for decision, is set aside. As I have held that there is only one reasonable conclusion, there is no point in remitting the matter to the AAT. In lieu of the AAT's decision, access to the withheld documents should be refused. The cross-appeal is to be dismissed. Devereaux is to pay the Commissioner's costs of the application and cross-appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 29 May 2007 Counsel for the Applicant/Cross-Respondent: Mr A Robertson SC, Ms M Kennedy SC, Mr RM Niall Solicitor for the Applicant/Cross-Respondent: Australian Government Solicitor Counsel for the First Respondent/Cross-Appellant: Mr JW Durack SC, Ms RL Seiden, Mr JH Momsen Solicitor for the First Respondent/Cross-Appellant: Becwell Legal Services Pty Limited Dates of Hearing: 11, 12 and 13 December 2006 Date of Judgment: 29 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/821.html


case_text: Those well known general statements are illuminated by the decision in Benecke v National Australia Bank (1993) 35 NSWLR 110 that was used as an example in the joint judgment in Mann [1999] HCA 66 ; 201 CLR 1. In that case the client, on whose behalf a case was settled by counsel, brought proceedings to set aside the settlement claiming that instructions to settle had not been given. She gave evidence to that effect. It was held that, in those circumstances, the client had waived her legal professional privilege and there could be no objection on the ground of privilege to the evidence of counsel or the other legal representatives being given.


case_outcome: followed

case_text: Both parties accepted that all of the documents and parts of documents that were ordered to be released, and those sought by way of cross-appeal, were entitled to the benefit of legal professional privilege, being either legal advices themselves or documents extracting or summarising legal advice. The basis of the AAT's decision, seeking to apply the principle discussed by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, was that certain other documents, which were produced pursuant to the Freedom of Information request, disclosed the substance of the advices reflected in the nine documents not produced thereby waiving legal professional privilege in the underlying advices. The issue has been argued before the AAT and in this proceeding on the basis of the application of the common law rather than the Evidence Act 1995 (Cth). That approach is consistent with the decision in Mann [1999] HCA 66 ; 201 CLR 1 and with the approach of the Full Court in Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101. The AAT identified parts of five particular documents which it held disclosed the substance of the advices in question. One of those documents notes taken as to what occurred at a without prejudice meeting between Australian Taxation Office representatives and taxpayers' representatives including the counsel in question was taken into account on the basis that disclosure of the document waived the without prejudice privilege and so was held to be available to be utilised in relation to waiver by disclosure. 8 The Commissioner contends that the AAT was wrong in finding that the documents upon which it relied disclosed the gist of the advices in the necessary sense. The mere reference to legal advice does not disclose the gist or substance of it. However, the manner of reference to it may do so. The difference may be illustrated by the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12, albeit in the context of the Evidence Act ; (see also Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607). Devereaux submits that the question as to whether or not there has been a disclosure of the substance of advice is a matter of fact and degree rather than a question of law and that any error involved would not be an error of law. In my opinion, that is generally correct although, if the wrong test is applied, there can be an error on a question of law (cf Bennett [2004] FCAFC 237 ; 140 FCR 101 at [68] ). It is unnecessary to pursue detailed examination of this issue as, in my opinion, there are more fundamental questions to be addressed. 15 Another typical application of the principle is exemplified in Bennett [2004] FCAFC 237 ; 140 FCR 101 and the authorities considered in that decision where a party quotes the substance of legal advice in support of a position that it is taking, either in relation to another party or the public generally. As was said in that case (140 FCR 101 at [68]): '... it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.' 17 In my opinion, the Commissioner is correct in submitting that the AAT fell into error on a question of law in not considering whether such disclosure as took place was conduct inconsistent with maintenance of the confidentiality of the underlying advices. Whilst many of the relevant authorities, including Mann [1999] HCA 66 ; 201 CLR 1 and Bennett [2004] FCAFC 237 ; 140 FCR 101, were referred to by the AAT, the correct question is not to be found in the dispositive parts of its decision. If the question had been asked, in my opinion, it could only properly have been answered in the negative. I cannot see any basis upon which it could be said that the production of the documents relied upon for waiver pursuant to a request under the FOI Act could be said to amount to conduct by the Commissioner inconsistent with maintenance of the confidentiality of the underlying advices. That is reinforced by the evidence, accepted by the AAT, that the failure to mask, even if relevant, was inadvertent.


case_text: Devereaux relies upon issue waiver both to support its notice of contention that the AAT was correct in relation to the release of nine documents and in relation to its notice of cross-appeal against the refusal to release other documents. That concept is dealt with in Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 ; (2006) 151 FCR 341 and goes back, at least, to Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347. In my opinion, it has no application to compliance with a request pursuant to the FOI Act. It only relates to a true forensic situation. No issue in the relevant sense exists in cases such as this.


case_text: The production of documents by the Commissioner pursuant to the FOI request was under the control of a Mr Robinson. His evidence, accepted by the AAT, was that the documents were put together and furnished under pressure and that he had intended to claim legal professional privilege where appropriate, but that the press of events was such that he was unable to satisfactorily do so. The failure to claim privilege in relation to the relevant parts of the documents that were produced was inadvertent. There are situations in which a privileged document is inadvertently disclosed, but privilege might be maintained (cf Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538; Boensch v Pascoe [2007] FCA 432 at [38] [39]).


case_title: Lombe v Pollak [2004] FCA 264

case_text: One question is whether there was voluntary disclosure of the documents ordered to be produced. Devereaux has not seen and does not have a copy of them. Furthermore, the documents said to waive legal professional privilege in the underlying documents were not produced voluntarily but, rather, pursuant to a compulsory process under the FOI Act. Devereaux submits that the Commissioner could have masked the relevant portion of the documents pursuant to s 42 and the failure to do so amounts to waiver of any privilege attaching, referring to Lombe v Pollak [2004] FCA 264. However, the question here is not waiver of privilege in relation to the documents which were produced. The Commissioner is not seeking to assert privilege in relation to any part of those documents. They can be utilised by Devereaux in any way it sees fit. 11 In Lombe [2004] FCA 264 the other party had a copy of the legal advice. At an examination, the party was shown the advice and taken through it paragraph by paragraph and questioned about its contents without objection. There was no claim that the failure to object was inadvertent. Jacobson J applied dicta of Cole J in Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 730 and, not surprisingly, found privilege waived. Spedley 26 NSWLR 711 was a similar case, in that a former officer of the bank was examined without objection on a draft witness statement which had been prepared by the bank's solicitor and provided to the liquidator in answer to a summons under s 541 of the Companies (New South Wales) Code .


case_text: Both parties accepted that all of the documents and parts of documents that were ordered to be released, and those sought by way of cross-appeal, were entitled to the benefit of legal professional privilege, being either legal advices themselves or documents extracting or summarising legal advice. The basis of the AAT's decision, seeking to apply the principle discussed by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, was that certain other documents, which were produced pursuant to the Freedom of Information request, disclosed the substance of the advices reflected in the nine documents not produced thereby waiving legal professional privilege in the underlying advices. The issue has been argued before the AAT and in this proceeding on the basis of the application of the common law rather than the Evidence Act 1995 (Cth). That approach is consistent with the decision in Mann [1999] HCA 66 ; 201 CLR 1 and with the approach of the Full Court in Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101. The AAT identified parts of five particular documents which it held disclosed the substance of the advices in question. One of those documents notes taken as to what occurred at a without prejudice meeting between Australian Taxation Office representatives and taxpayers' representatives including the counsel in question was taken into account on the basis that disclosure of the document waived the without prejudice privilege and so was held to be available to be utilised in relation to waiver by disclosure. 13 Even if there were, there was no use of the material that was disclosed that was inconsistent with maintaining confidentiality in the underlying advices within the principles enunciated in Mann [1999] HCA 66 ; 201 CLR 1. Gleeson CJ, Gaudron, Gummow and Callinan JJ said (201 CLR 1 at [28] [29]): 'Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. ... Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.' 14 Those well known general statements are illuminated by the decision in Benecke v National Australia Bank (1993) 35 NSWLR 110 that was used as an example in the joint judgment in Mann [1999] HCA 66 ; 201 CLR 1. In that case the client, on whose behalf a case was settled by counsel, brought proceedings to set aside the settlement claiming that instructions to settle had not been given. She gave evidence to that effect. It was held that, in those circumstances, the client had waived her legal professional privilege and there could be no objection on the ground of privilege to the evidence of counsel or the other legal representatives being given. 16 Similarly, the majority in Mann (201 CLR 1 at [34]) said: 'Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect.' 17 In my opinion, the Commissioner is correct in submitting that the AAT fell into error on a question of law in not considering whether such disclosure as took place was conduct inconsistent with maintenance of the confidentiality of the underlying advices. Whilst many of the relevant authorities, including Mann [1999] HCA 66 ; 201 CLR 1 and Bennett [2004] FCAFC 237 ; 140 FCR 101, were referred to by the AAT, the correct question is not to be found in the dispositive parts of its decision. If the question had been asked, in my opinion, it could only properly have been answered in the negative. I cannot see any basis upon which it could be said that the production of the documents relied upon for waiver pursuant to a request under the FOI Act could be said to amount to conduct by the Commissioner inconsistent with maintenance of the confidentiality of the underlying advices. That is reinforced by the evidence, accepted by the AAT, that the failure to mask, even if relevant, was inadvertent. 18 Consideration needs to be given to the decision of Sundberg J in Rio Tinto Ltd 224 ALR 299; (2005) 60 ATR 339. It was held that legal professional privilege had been waived in relation to certain documents by reason of what was described as 'issue waiver' (224 ALR 299 at [21] [47]). Sundberg J went on to discuss (obiter) whether disclosure waiver had occurred by reason of reference to advice in a document that was produced and said that he would have so held. His Honour sought to apply the principles laid down in Mann [1999] HCA 66 ; 201 CLR 1. One of the issues discussed was whether or not the respondent voluntarily produced the documents said to waive privilege in the underlying advices. The document had been produced to the other side twice the first pursuant to an application under the FOI Act where no privilege was claimed; the second was in answer to a notice to produce within the course of the litigation before the Court without a claim of privilege. Sundberg J took the view that the document was produced voluntarily and held that it was not relevant that the respondent did not seek to deploy it for any commercial or forensic purpose. With all respect, that reasoning might be applicable if the underlying advice had been produced but, in my opinion, is not applicable to circumstances such as the present. I am, thus, not inclined to follow Sundberg J's dicta. It was, in any event, a particular factual application of the principle and does not purport to lay down any new law. Furthermore, the inadvertent nature of the present disclosure would distinguish this case from the facts before Sundberg J.


case_outcome: distinguished

case_text: Subject to consideration of the decision of Sundberg J in Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299; (2005) 60 ATR 339, to be discussed later, in my opinion, there has been no voluntary production of the relevant parts of the documents said to waive privilege. 18 Consideration needs to be given to the decision of Sundberg J in Rio Tinto Ltd 224 ALR 299; (2005) 60 ATR 339. It was held that legal professional privilege had been waived in relation to certain documents by reason of what was described as 'issue waiver' (224 ALR 299 at [21] [47]). Sundberg J went on to discuss (obiter) whether disclosure waiver had occurred by reason of reference to advice in a document that was produced and said that he would have so held. His Honour sought to apply the principles laid down in Mann [1999] HCA 66 ; 201 CLR 1. One of the issues discussed was whether or not the respondent voluntarily produced the documents said to waive privilege in the underlying advices. The document had been produced to the other side twice the first pursuant to an application under the FOI Act where no privilege was claimed; the second was in answer to a notice to produce within the course of the litigation before the Court without a claim of privilege. Sundberg J took the view that the document was produced voluntarily and held that it was not relevant that the respondent did not seek to deploy it for any commercial or forensic purpose. With all respect, that reasoning might be applicable if the underlying advice had been produced but, in my opinion, is not applicable to circumstances such as the present. I am, thus, not inclined to follow Sundberg J's dicta. It was, in any event, a particular factual application of the principle and does not purport to lay down any new law. Furthermore, the inadvertent nature of the present disclosure would distinguish this case from the facts before Sundberg J.


case_text: In Lombe [2004] FCA 264 the other party had a copy of the legal advice. At an examination, the party was shown the advice and taken through it paragraph by paragraph and questioned about its contents without objection. There was no claim that the failure to object was inadvertent. Jacobson J applied dicta of Cole J in Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 730 and, not surprisingly, found privilege waived. Spedley 26 NSWLR 711 was a similar case, in that a former officer of the bank was examined without objection on a draft witness statement which had been prepared by the bank's solicitor and provided to the liquidator in answer to a summons under s 541 of the Companies (New South Wales) Code .


case_title: Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347


case_title: Carole Ann Barrick v Qantas Flight Catering Limited [2001] AIRC 110


case_title: Carole Ann Barrick re Carole Ann Barrick v Qantas Flight Catering Limited [2002] AIRC 91


case_text: As the High Court said in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604: ...the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interest it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. 82 The qualification of damages is addressed in [35]: The Applicant is unable to better particularise the respective amounts of the damages claimed under the respective heads of damage until after discovery and or delivery of interrogatories but as presently advised claims the following amounts:- (i) Wages underpaid $34,064 gross as particularised in paragraph 10(e) hereof; (ii) Superannuation underpaid (a) voluntary termination - $158,000 approximately; (b) employers' termination - $48,000 approximately; (iii) loss of employment or the opportunity to properly defend against the misconduct allegations (see (iv), (v), (vi), (vii) and (viii) below); (iv) legal costs incurred which in whole or in part would not have been incurred except for the Respondent's conduct:- (a) AIRC proceedings $60,000 (b) Committal proceedings $20,000 (c) Industrial Magistrates Court proceedings $20,000 (d) Appeal to Full Bench Industrial Relations Commission $20,000 (e) Expenses to prepare proper income tax refunds and miscellaneous $ 6,000 (v) Damages to the Applicant's good name and reputation $100,000 (vi) Damages for emotional and psychiatric injury to self and husband, pain and suffering, loss of life expectancy, loss of enjoyment of life and the amenities of life $2,350,000 (vii) Costs of medical and other treatment and associated expenses $ 220,000 (viii) Loss of future income $ 564,000 nett (ix) Loss of future superannuation $250,000 (x) Discounted fares on flights (10% on full fares) $ 50,000 83 The claimed damages exceed $3.5 million.


case_text: In Deatons Proprietary Limited v Flew [1949] HCA 60 ; (1949) 79 CLR 370, the question was whether an assault upon a customer of a hotel by a barmaid in the employ of the publican company was committed in the course of her employment. Dixon J said at 380: In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable. For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do. 105 Williams J said at 386: The damage to the plaintiff was done by the glass. A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a mode, although an improper mode, of answering his request for a glass of beer.


case_text: In New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511, the majority of the High Court, (Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ, with McHugh J dissenting) held that the liability of a school authority, under its non-delegable duty of care over the pupils, does not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. 107 Gummow and Hayne JJ, after referring to the judgment of Sir Owen Dixon in Deatons said, at 591-592: First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having. What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. 108 Mrs Barrick knew that Ms Holness was directing money to her bank account from Qantas Catering. She was sharing that money with Ms Holness. She knew that the monies being paid into her accounts by Qantas Catering were greatly in excess of the wages and other payments to which she was entitled. Her claim that she thought the monies included Ms Holness' pay is not true. Mrs Barrick cannot hold Qantas Catering liable for the arrangement she had with Ms Holness.


case_text: As the High Court make plain in Byrne v Australian Airlines Limited (1995) 195 CLR 410 at 420, damages is not available as a separate remedy. 181 Because of the fraudulent scheme orchestrated by the pay-mistress, Ms Holness, Qantas Catering did not comply with the requirements of cl 13(e) of the Award, in my opinion. This failure, however, does not avail Mrs Barrick, because, in my view, she received payslips which indicated what was being paid to her, or on her behalf, to her bank and other loan accounts; those monies were recorded in payslips which she received, and the monies exceeded the entitlements for the hours that she worked. 182 None of the other causes of action has been made out.


case_text: Mrs Manatiy, a British subject, was six years of age when she first came to Australia, in 1956. She travelled on her father's passport, the stamped (though long since cancelled) original having been provided to the Tribunal. The relevant legislation governing entry into Australia at that time was the Immigration Act 1901-1949 (Cth) ("the Immigration Act"). As British subjects, Mrs Manatiy's parents and family then had the right to enter and reside in "any part of the King's Dominions except in so far as that right has been modified or abolished by positive law": Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277 at 305. Though the Immigration Act, s 3(1) imposed some number of prohibitions upon immigration into Australia, none were applied to Mrs Manatiy or to her parents.


case_text: Finally, it was recognised at the time of the 1992 legislation that there was a small number of "absorbed persons" who were lawfully in Australia as permanent residents despite not holding entry permits. In the Migration Legislation Amendment Act 1994 provision was made for a special class of permanent visa for such persons to be known as "absorbed person visas": see Migration Legislation Amendment Bill 1994, Explanatory Memorandum, paras 22-27. I would note in passing that, because of her departure from Australia in 1973, Mrs Manatiy rendered herself ineligible for such a visa: see the Migration Act 1958 , s 23 (now 34 ); although British subjects who entered Australia prior to 1958 and who remained here thereafter could qualify for that visa. Apparently Mrs Manatiy's mother holds such a visa. The point of present emphasis, though, is that the 1992 and 1994 legislation made possession of a valid visa the sole criterion for determining the lawful status of a non-citizen within Australia: see Crock, Immigration and Refugee Law in Australia , Federation Press 1998, 52; on absorbed persons visas see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370 at [12] - [22] . 25 The respondent Minister has objected to the applicant seeking relief in this Court in respect of a claim which was not made to the Tribunal and which was disavowed by her solicitor. It is further contended that even if the case now sought to be put had been presented to the Tribunal it could not have succeeded. Mrs Manatiy did not meet the requirements of subpara 823.212(4)(e) in any event. In these circumstances it is said, even accepting that a common mistake was made by the Tribunal and Mrs Manatiy in relation to the applicable definition of "entry permit", it would nonetheless be futile to remit the matter to the Tribunal. 26 Mr Ower for Mrs Manatiy in contrast has submitted that the case he now seeks to put concerning an entry permit clearly arose from the materials before the Tribunal and the mistake it shared with Mrs Manatiy's solicitor was the cause of its not dealing with it. 28 The simple and direct answer to the present application is that when Mrs Manatiy entered Australia in 1956 and while she remained in Australia until 1973, she did so in virtue of a legal regime which did not require her to have permission so to enter or to reside in Australia. As a British subject, proof of which was provided in her father's passport, she had a right to enter Australia. While British subjects seeking to enter Australia after the coming into force of the Migration Act were required to obtain an entry permit permitting them to enter and remain in Australia, Mrs Manatiy's continued presence in Australia from that time was unaffected by this legislative change. Her right to remain in Australia existed in virtue of the lawful rights she had when she entered Australia in 1956. It was not abrogated by the Act. Nor did the Act abrogate any permission she had to enter Australia. Her original entry was as of right, none of the prohibitions of s 3(1) of the Immigration Act having application to her. Until her departure in 1973 she belonged to a class of persons lawfully in Australia who stood outside the entry permit regime for so long as they continued to remain in Australia. It was only when the universal system of visas for non-citizens was instituted in the 1992-1994 reforms that the existence of this class itself required address: see Nystrom at [14]-[16]. The principal response, as I have noted, was to be found in the deeming provision of s 23 (now s 34) of the Migration Act which effected the grant (subject to limitations) of absorbed person visas. One of its applications was to members of the class I have noted above who satisfied the requirements of s 23: on s 34 see Nystrom at [18]-[22]. 29 Mrs Manatiy's entry into Australia in 1956 and her remaining in Australia until 1973 were not in virtue of any permission given by the Commonwealth under either the Immigration Act or the Migration Act . In consequence, she could never "cease to hold an entry permit ... before turning 18" for the purposes of subpara 832.212(4)(e). I accept the Minister's submission in this respect as also the submission that it would be futile to remit the matter to the Tribunal because of the Tribunal's mistake as to the proper meaning to be ascribed "entry permit" in that subpara. The actual result would remain the same. 30 In reaching this conclusion I have implicitly rejected the case put by the applicant. Though it has shifted somewhat in the course of written and oral submissions, it is premised on the agreed proposition that the preposition "or" in the operative (1989) definition of "entry permit", i.e. "permission to enter or remain in Australia" is to be read disjunctively. While I agree with this premise as far as it goes, it does not in my view capture the full scope and burden of the 1989 definition. Considered in the context of the entry permit system instituted in the 1958 Act, the definition had to accommodate itself to multiple possibilities. I simply instance (a) permissions to enter for a purpose but not to remain; (b) permissions to enter and to remain; and (c) permissions to remain, the non-citizen being already in Australia. To be added to these were those permissions which facilitated, as well, re-entry into Australia. A consequence of this, in my view, is that the preposition "or" in the 1989 definition on its proper construction is to be read as "and/or", i.e. conjunctively and disjunctively to accommodate the above possibilities. Thus a person who has permission to enter and to remain in Australia has an entry permit, not two such permits. I would note that such was made explicit in the original s 6(3) of the 1958 Act, as it is currently (in relation to visas) in the present s 29 of the Migration Act .


case_text: On 1 June 1959 the Immigration Act was repealed and the Migration Act 1958 (Cth) ("the Migration Act ") came into force. The new Act abolished the common law right of British subjects to enter Australia. It imposed the requirement that any constitutional immigrant wishing to enter Australia had to possess an instrument described as an "entry permit": see s 6 (as enacted in 1958); see also Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at [144] - [145] . 4 Mrs Manatiy remained in Australia until 1973 when she left Australia. She was then aged 23. She returned to Australia in 1979 to visit her parents and she revisited Australia on several subsequent occasions before her entry in December 1998 on a visitor visa. She held a succession of such visas until she was granted a Bridging Visa on 12 March 2004 on account of the visa application which is the subject of these proceedings. 5 The class of visa Mrs Manatiy applied for is described in Sch 2 of the Migration Regulations 1994 as a "Subclass 832 Close Ties" visa. For present purposes the particular requirements of cl 832 she claims she met were those of subcl 832.212(4). It provided: "(4) An applicant meets the requirements of this subclause if the applicant: (a) first entered Australia before the applicant turned 18; and (b) has never held either of the following: (i) a student visa; (ii) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations , for the purposes of a course of study; and (c) has turned 18; and (d) before turning 18, spend the greater part of the period that the Minister regards as the applicant's formative years in Australia; and (e) ceased to hold an entry permit or a substantive visa before turning 18."


case_text: The Court now considers the issue of discovery under Order 15A Rule 6 of the Rules. In Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728 at 733 Burchett J held that Order 15A Rule 6 is to be given a wide operation and construed beneficially: see also Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27] . Order 15A Rule 6 has been the subject of judicial consideration by the Full Court of this Court in Bailey v Beagle Management Pty Limited [2001] FCA 60 ; (2001) 105 FCR 136. At 143 the Court said: In a number of cases it has been pointed out that O 15A, r 6 (discovery before action) expressly contemplates what once might have been castigated as fishing and that it would be incongruous if the power to order discovery were less extensive in favour of a party to a proceeding properly brought in the Court than in favour of someone unable for lack of evidence to mount a case: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113, Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 at 436 (Lindgren J), Treasurer of the Commonwealth v Canwest Global Communications Corp [1997] FCA 578 (Full Court), Microsoft Corporation v Adelong Electronics Pty Ltd (t/as Ade Computers) [1997] FCA 224 (Burchett J), Bertran v Vanstone [1999] FCA 1753 at [18] - [23] (Kenny J). Donnelly v Davison [2000] FCA 1396 ; (2000) 105 FCR 1 (Branson J). Also one should not lose sight of what the majority of the High Court in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 685 noted as the public interest " ... which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."


case_text: In Fermanis v Cheshire Holdings Pty Limited (1990) ATR 1862 at 1865 Murray J said: It is clear, I think, the provision operates as a machinery provision to facilitate tax collection in relation to liable trust income, when the liability is otherwise imposed than by s 254. At 1866 his Honour continued: I conclude that the Income Tax Assessment Act s 254(1)(d) is a machinery provision which requires a trustee in possession of trust income to retain out of such income received by him in his representative capacity moneys sufficient to pay tax which is, or will become due, in respect of the income. 17 Since there may be a debt to the Commissioner of Taxation arising out of the nondisclosure of income from undisclosed overseas assets of the estate, the Court is satisfied that, prima facie, the applicants may have a claim arising under a Commonwealth statute sufficient to attract the jurisdiction of the Court pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 19 of the Federal Court of Australia Act 1976 (Cth). Accordingly the Court possesses jurisdiction to grant relief.


case_title: Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728


case_title: Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549


case_title: Skyes v Stratton [1972] 1 NSWLR 145

case_text: As a second source of federal jurisdiction to support the orders sought the appellants rely upon Regulation 41 of the Banking (Foreign Exchange) Regulations 1959 ('the Regulations') which provides for a possible right to restitution. The applicants refer to the decision in Skyes v Stratton [1972] 1 NSWLR 145 at 160 and submit that any contract or arrangement is illegal if it is made for the purpose of or has the effect of defeating, evading, avoiding or preventing the operation of the Regulations. They submit that the evidence prima facie establishes the existence of such arrangement between the deceased and the respondent. 14 The applicants submit that unless restrained, the respondent may destroy relevant records and deal with assets derived from the estate in such a manner as may defeat the interests of the Commissioner of Taxation. Further, there may be tax liabilities of the estate which will need to be met from the assets held overseas. The applicant's concern is based upon the fact that the respondent has refused requests to make disclosure of the existence of such assets. 15 In these proceedings the applicants are trustees as defined by s 254(1) of the ITAA 36. By virtue of s 254(1)(f) of the ITAA 36 trustees are indemnified for all payments which they may make pursuant to the ITAA 36 or of any requirement by the Commissioner.


case_text: The subject of the inquiry by the Tribunal was a claim by the appellant to be accorded protection by Australia as a refugee within the meaning of the Convention Relating to the Status of Refugees . Such a claim raises issues of the utmost importance, of "human fate" as Toohey J remarked in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407. In many cases it will be a matter of very great difficulty for applicants to produce evidence to corroborate their accounts of why they have fled their own countries. Often enough, applicants may feel it necessary, in an alien culture, to exaggerate or even fabricate aspects of their claims to have the kernel of a just claim recognised. A genuine refugee may be far from a saint. These observations are, by now, trite.


case_text: The Tribunal was obliged to give the appellant a fair and full hearing of such material as she produced as might support a conclusion that she met the Convention definition of a refugee, and to strive earnestly to decide the matter on the substantial merits of the case (s 353(2) of the Act) in order to arrive at "the correct or preferable decision": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409 at 419. In my opinion, it cannot be said as to the relevant evidence, that the appellant was fairly heard. Not only was the material unlawfully rejected, if properly considered and accepted, it could have directly affected an assessment of the appellant's prospects vis a vis the government and the Maoists respectively if she were returned to Nepal. It could indirectly have forced some re-examination of her credit, otherwise damned. That is, material of crucial importance to her case was effectively excluded from consideration for no legally acceptable reason. On this aspect of her case the Tribunal effectively did not give her a fair hearing. That was also a jurisdictional error. 22 The matter may also be analysed as a species of apprehended bias. It is possible, in my opinion, that a reasonable, well-informed lay observer might suspect that the Tribunal, being otherwise dissatisfied with the appellant's credit, had rejected her witness' testimony regardless of what might have been, independently of the appellant, its intrinsic worth. In my view, that is enough to constitute nullifying apprehended bias.


case_title: NADH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264

case_text: Their importance must not, however, be minimised. They affect the nature of the inquiry and must inform the inquisitorial method: see, eg NADH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 ; 214 ALR 264 at [18] (considered below at [23]). In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable. 15 Even in a court of law, bound by the rules of evidence (unlike the Tribunal: cf s 353(2) Migration Act 1958 (Cth) (the Act)), first-hand hearsay evidence is admissible under Commonwealth, New South Wales, Australian Capital Territory and Tasmanian law if the maker of the original statement is "unavailable", as defined: eg Evidence Act 1995 (Cth) s 63. In other States hearsay evidence is admissible of statements by persons "beyond the seas" whom it is not reasonably practicable to have attend the hearing, and even simply where undue expenses or delay would be involved in having the maker of the statement called: see generally Heydon JD, Cross on Evidence (7 th Australian ed, Butterworths, 2004). There would be little difficulty in persuading a court that a Maoist rebel in Nepal could not reasonably be brought to the court room. 16 The significance of this is that while the proposition that the original maker of the statement is unexaminable was a justification for the exclusion of such evidence from any consideration under the old common law hearsay rule, there is no justification for simply disregarding such evidence out of hand when it is permissible to receive it, and it has been received, as material to be weighed in assessing a claim. When the evidence is legally available for consideration notwithstanding that the person who was the original source of the information is not present, the Tribunal must do its best to assess the weight to be given to the evidence of the absent person. This will involve such questions as the likely truthfulness and means of knowledge of that person and how accurately the witness actually before the Tribunal is likely to have reported the original statement. The absent person in this case was a Maoist rebel leader, speaking to a relative and naming another person as a fellow Maoist rebel leader. This, on the face of it, can only be inferred to have been a conversation between trusted intimates in which the original maker of the statement is likely to have known what he was talking about. 17 In such a case, it would be, and was here, perverse not to accord the reported statement considerable weight, unless the witness reporting it appeared untruthful or unreliable. But the Tribunal made no criticism at all of the reporting witness and may safely be inferred to have had none. 18 There may of course be other reasons that might have emerged upon inquiry of the reporting witness or otherwise as to why the weight prima facie to be accorded to the reported statement should not, in the end, be placed upon it. But no such reason was given. Indeed, as the transcript shows, no such inquiry was made. 23 The interrelationship of arbitrary findings and apprehended bias and the content of the latter concept was comprehensively and, with respect, compellingly considered by Allsop J (Moore and Tamberlin JJ concurring) in NADH of [2004] FCAFC 328 ; 2002 214 ALR 264. What his Honour said (at [13]-[14], [16]-[21]) as to apprehended bias bears repetition (omitting internal references) here, despite its length: The obligation to accord procedural fairness involves the notion that administrative decisions, including a decision of a Tribunal of the kind here, will be made without the reasonable apprehension of bias in the decision maker... . The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision... . ...It was said that the approach to finding the facts, and the facts as found, demonstrated a lack of impartiality. No particular interest, affection, enmity or prejudice was identified which might have occasioned or contributed to the impugned conduct or approach. Thus formulated, the criticism of lack of impartiality is one which amounts to a complaint of an apprehension of predisposition, tendency or propensity towards a given result... . To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof... . Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias... . Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court... . The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power. The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct "objectified" through the prism of what a fair-minded and informed observer would reasonably apprehend... . It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality. 24 Later in the judgment his Honour said (at [115]-[116]): By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 [2003] HCA 30 ; (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. ...The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material. In my view, at least these possibilities (real and not remote) would come to mind to such a fair-minded and informed observer. The second possibility is the apprehension of possible bias. (Emphasis added.) 25 The relevant key question here is: by the time the Tribunal Member came to assess the value of the material reported by the witness whose own credibility she did not question, which material consisted of information from a relative close to that witness and apparently in a position to know what he was talking about, would a fair-minded observer apprehend, as a real and not remote possibility, that the Member could not bring a mind open to persuasion and willing and able to evaluate all the material in the case, including crucially that material? In my opinion, a fair-minded and informed observer would so apprehend. 26 The consequence is that such an observer would apprehend that there was a possibility that the appellant had been refused refugee status because she was thought to be a liar and not because the Tribunal had considered all of the material which might have given rise to a conclusion favourable to her in the fair-minded way she was entitled to. 27 Thus, in the end, in my view, however the matter be analysed, as counsel for the applicant in NADH [2004] FCAFC 328 ; 214 ALR 264 put it, the Tribunal "misconceived the role of the hearing and[/or] failed to afford a hearing of the character contemplated by the Act", and the Tribunal "came to its state of satisfaction ... in a manner ... which require[s] the Court to conclude that there was no relevant absence of satisfaction for the purposes of ss 36 and 65 of the Migration Act according to law". 28 The point is important. There is no possibility that the respondent could have met it by calling further evidence. The point is also, in my view, a good one. It was not the appellant's personal fault that it was not taken below. The fact that the omission to take the point below has led to the expense of an appeal which, it should be assumed, would otherwise have been obviated, can be remedied by an appropriate costs order. 29 Leave to allow the point to be taken here should be granted.


case_title: R v War Pensions Entitlement Appeal Tribunal, Ex parte Bott (1933) 50 CLR 227

case_text: In my opinion that was also a jurisdictional error. Misconception of a public duty and a professed performance of it based on that misconception "amounts in law to no performance": R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 227 at 242-3 per Rich, Dixon and McTiernan JJ.


case_title: Cargill v Bower (1878) 10 Ch D 502

case_text: a party does not repeat a claim for relief made in the originating application in the statement of claim, the claim must be taken to be abandoned: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584 ; Cargill v Bower (1878) 10 Ch D 502 ; Lewis and Lewis v Durnford (1907) 24 TLR 64 at 65.


case_text: context in which s 444F finds itself must be examined to determine the construction of the section. The context not only includes the enactment itself but also the existing state of the law and the mischief which the enactment was intended to address and remedy: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. Part 5.3A of the Corporations Act Part 5.3A of the Corporations Act , which contains s 444F , was enacted in 1993 following the Harmer Report and provided at that time for a wholly new regime for the administration of companies apart from the existing forms of external administration and especially winding up in insolvency. Section 435A identifies the objects of the Part: 435A The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that: (a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or (b) if it is not possible for the company or its business to continue in existence results in a better return for the company's creditors and members than would result from an immediate winding up of the company.


case_text: rule enunciated in those cases is no more than an extension of the general principles of pleading. There is more than one purpose for pleadings. One of the purposes of pleadings is to define the issues and to give the opposing party fair notice of the case that that party must meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. Order 11 rule 2 of the Federal Court Rules assists to achieve that purpose by requiring a party to plead a statement in a summary form of the material facts upon which the party relies. Absent any claim for relief in the statement of claim, a respondent may properly assume such a claim is not being pursued. A court will confine a party to the party's pleadings if to do otherwise would be unjust to another party.


case_text: are, of course, only a means to an end. They are designed to accord the parties procedural fairness. If the parties choose to ignore the pleadings and fight the case on different issues "it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest": Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) [1916] HCA 81 ; (1916) 22 CLR 490 at 517. The applicants abandoned their claim for statutory relief against forfeiture under s 138 of the NT Property Act in their written submissions. It was accepted that the conditions precedent for the operation of the section had not yet occurred. The only claim therefore arising on the pleadings at trial was the claim for relief under s 444F of the Corporations Act . The Parties The first applicants (the administrators) are the joint and several deed administrators of the second applicant, DNPW Pty Ltd (subject to DOCA) (DNPW). DNPW was incorporated on 23 December 2003 and operated two licensed venues, namely the Ducks Nuts Bar and Grill (Ducks) and the Fox Alehouse (Fox) in Darwin.


case_text: 444F should be construed with those objects in mind and should be given a construction that would promote those purposes rather than a construction that would not: s 15AA of the Acts Interpretation Act 1901 (Cth); Lam Soon Australia Pty Ltd v Molit (No 55) Pty Ltd (1996) 22 ACSR 169. The scheme of Part 5.3A is to empower the creditors to determine the future of the company. It does so by allowing the company to appoint an administrator in circumstances where the directors are of the opinion that the company is insolvent or likely to become insolvent at some future time and resolve that an administrator should be appointed: s 436A. The administrator is entrusted with the administration of the company and after his or her appointment has control of the company's business, property and affairs and has the power to carry on the company's business and manage its property and affairs, and to perform any function that the company or any of its officers could have performed if the company were not under administration: s 437A. The administrator's appointment stays the powers of any officer or a provisional liquidator of the company: s 437C. After his or her appointment, only an administrator can deal with the company's property: s 437D. The administrator's appointment also impacts upon the members in that the members cannot, during the administration of the company, transfer shares in the company, except if the administrator consents or the Court permits: s 437F. The administrator must convene a meeting of the company's creditors within eight business days of the beginning of the administration in order to determine whether to appoint a committee of creditors: s 436E.


case_title: Lewis and Lewis v Durnford (1907) 24 TLR 64


case_text: argued that Re Java 452 Pty Ltd (administrator appointed) (No 2) (1999) 32 ACSR 507 was authority for the proposition that an order cannot be made after the lease is determined. I do not agree. The application with which the Court was concerned in Re Java 32 ACSR 507 was by a lessor for an order that it have leave to take possession of leasehold premises pursuant to s 440C of the Corporations Act or, alternatively, a declaration under s 441F of the Corporations Act . In Re Java 32 ACSR 507 the landlord, Permanent Trustee, gave notice of default under the lease for non-payment of some four months rent. The notice stipulated that if the breach were not remedied Permanent Trustee would re-enter the premises 14 days later. Five days later Permanent Trustee gave a notice said to be under s 146 of the Property Law Act 1958 (Vic) in relation to interest and legal costs said to be owing and warned that unless the breaches were remedied within 14 days Permanent Trustee would re-enter without further notice. About a week after the second notice the directors of the lessee company appointed administrators to the company under s 436A. The company was then still in possession of the leasehold property but the breaches in the two notices had not been remedied. During the administration two offers were made to purchase the company's business and for the purchaser to take an assignment of the lease. The administrators recommended that the creditors approve the arrangement. However, Permanent Trustee insisted that the lease had been terminated and that it was not prepared to negotiate with the prospective purchaser but had found another prospective tenant. The administrators recommended to the company's creditors that a deed of company arrangement be executed pending the sale of the business and the assignment of the lease. Permanent Trustee commenced the proceeding in the first place seeking leave to enter into possession pursuant to s 440C in case the creditors resolved that the company enter into a deed of company arrangement that day because Permanent Trustee would be at risk under s 444F if such a proposal were made. The application therefore before the Court was in relation to a company in administration, not a company subject to a deed of company arrangement.


case_title: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584


case_text: The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.


case_text: There are two other possible bases for orders in this case. The first is that, in the circumstances of this case, the Court is able to look behind the trust structure and determine that, in reality, the property of the trust is effectively Mr Donovan's property because he effectively controls the power of selection ( Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 at 518 [29] and 520-521 [36]-[39] per French J). The second possible basis is that Mr Donovan has, in the particular circumstances of this case, an expectancy under the Stephen Donovan Family Trust (see Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 607 per Lord Reid, at 615 per Lord Wilberforce; Hunt v Muollo [2003] 2 NZLR 322 at 325 [11]) and the case falls within Cardile ((i) in the passage quoted above at [15]) or O 25A r 5(5)(a). As these possibilities were not the subject of detailed submissions by counsel, I do no more than identify them as a possible basis for the freezing orders against the third parties.


case_text: The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make Mareva orders or (as they are referred to in the Federal Court Rules ) freezing orders. A number of principles relating to the circumstances in which such orders may be made have been developed in the cases. For present purposes, it is sufficient to refer to Jackson v Sterling Industries Ltd (1987) 162 CLR 612 ; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 (" Cardile "). 15 Cardile is of particular significance in this case because it concerned Mareva orders sought against third parties. In their joint reasons, Gaudron, McHugh, Gummow and Callinan JJ made a number of points. First, there is no basis for the making of an order against a non-party which is not answerable or liable in some way to a party (applicant or respondent) in a proceeding where judgment has not been obtained or execution recovered, or not holding, controlling or capable of disposing of the property of a party in that proceeding (at 401-402 [45]). Secondly, the jurisdiction of the Court to grant Mareva orders against third parties is not limited to cases in which the third party holds or is about to hold or dissipate or further dissipate property beneficially owned by the defendant in the substantive proceedings. Nevertheless, if such circumstances do not exist, it will be a rare case in which a Mareva order will be granted (405 [54]). Thirdly, the guiding principle in considering whether to grant Mareva orders against third parties is set out in the following passage from the joint reasons (at 405-406 [57]) (citations omitted): What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word "may", be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including "claims and expectancies", of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor. Fourthly, there are a number of discretionary factors (referred to at 404 [53]) relevant to whether an order should be made and these include, but are not limited to, the following: 1. Whether the applicant has acted in a timely fashion; 2. Whether the applicant has obtained a money judgment in the proceeding; and 3. Whether the applicant has a cause of action against the third party. 16 Order 25A of the Federal Court Rules is entitled "Freezing Orders" and came into operation on 5 May 2006. For the most part it reflects the principles developed in the cases, including Cardile . Order 25A r 6 provides that "[n]othing in the Order diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or an ancillary order". Order 25A r 5(1)(b) provides that in a case such as the present, the applicant must have a "good arguable case" on an accrued cause of action. Order 25A r 5(4) deals with freezing orders against judgment debtors and prospective judgment debtors. Order 25A r 5(5) deals with freezing orders against third parties and it provides: (5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party ) if the Court is satisfied, having regard to all the circumstances, that: (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because: (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. 17 The first question in the present case is whether the applicants have a good arguable case on an accrued cause of action against the respondents. Neither party made detailed submissions on this question. I have considered carefully the pleadings and affidavits and I am satisfied that the applicant has a good arguable case on an accrued cause of action against the respondents. 18 The second question is whether there is a danger that a prospective judgment in favour of the applicants against the respondents will remain unsatisfied, or partly unsatisfied, if recovery is restricted to the assets of those respondents. Details of the financial affairs of the respondents have not been put before me and, in fact, the applicants seek by way of ancillary orders, orders that affidavits of disclosure be filed and served by the respondents. It has been established that the respondents do not own any real property in the State of Victoria. It has also been established that the second respondent owes reasonably substantial sums of money to the third parties. It has also been established that one of the companies associated with Mr Donovan, Gemhall Holdings, will be unable to pay the mortgage over the Chapel Street property beyond December 2008 if it is not sold. If the property is sold the deposit money will be sought to be released to be used to continue to pay the mortgage until settlement of the sale. In my opinion, the applicants have established that there is a danger that a prospective judgment in their favour against the respondents will remain unsatisfied, or partly unsatisfied, if recovery is restricted to the assets of the respondents. 19 It seems to me that the most contentious issue in this case relates to the third question, namely, whether some process, ultimately enforceable by the courts, is or may be available to the applicants as a consequence of a judgment against the respondents, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the respondents to help satisfy the judgment against the respondents. 20 The applicants submit that I should ignore the transactions effected on 10 or 11 December 2008. They submit that, if anything, those transactions should heighten the Court's concern about the disposal of assets rather than allay it. The applicants submit that Mr Donovan owns and controls Gemhall Holdings and that, by reason of the fact that he holds the power of appointment, he controls the Stephen Donovan Family Trust. 21 The respondents submit that the properties are held by the third parties as trustees for the respective trusts and that, as the Stephen Donovan Family Trust is a discretionary trust, there is no property of Mr Donovan which could be recovered by a trustee in bankruptcy, should Mr Donovan suffer bankruptcy as a result of the applicants obtaining a judgment against him. 22 In my opinion, a Mareva or freezing order should be made against the third parties. 25 The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165. 26 There are two other possible bases for orders in this case. The first is that, in the circumstances of this case, the Court is able to look behind the trust structure and determine that, in reality, the property of the trust is effectively Mr Donovan's property because he effectively controls the power of selection ( Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 at 518 [29] and 520-521 [36]-[39] per French J). The second possible basis is that Mr Donovan has, in the particular circumstances of this case, an expectancy under the Stephen Donovan Family Trust (see Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 607 per Lord Reid, at 615 per Lord Wilberforce; Hunt v Muollo [2003] 2 NZLR 322 at 325 [11]) and the case falls within Cardile ((i) in the passage quoted above at [15]) or O 25A r 5(5)(a). As these possibilities were not the subject of detailed submissions by counsel, I do no more than identify them as a possible basis for the freezing orders against the third parties. 27 I have considered whether there are any discretionary reasons not to make freezing orders against the third parties. I have considered the type of matters identified by the High Court in Cardile (see [15] above). I do not think that there are any discretionary reasons not to make the orders. 28 In addition to the freezing orders, I think it is appropriate to make the ancillary orders. 29 I will make the orders sought by the applicants, subject to any submissions the respondents wish to make as to the form of the orders. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 18 December 2008 Counsel for the Applicants: Mr I C Robertson Solicitor for the Applicants: Cosoff Cudmore Knox Counsel for the Respondents: Mr S J White Solicitor for the Respondents: Madgwicks Date of Hearing: 12 December 2008 Date of Judgment: 17 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1931.html


case_title: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553


case_title: Hunt v Muollo [2003] 2 NZLR 322


case_title: In re Coleman; Henry v Strong (1888) Ch D 443


case_title: In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145


case_text: The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make Mareva orders or (as they are referred to in the Federal Court Rules ) freezing orders. A number of principles relating to the circumstances in which such orders may be made have been developed in the cases. For present purposes, it is sufficient to refer to Jackson v Sterling Industries Ltd (1987) 162 CLR 612 ; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 (" Cardile ").


case_title: Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165


case_title: Westpac Banking Corporation v Hilliard [2001] VSC 187


case_title: Australian & New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244

case_text: There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia & New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.


case_text: To answer these questions it is necessary to begin with an examination of the Court's jurisdiction to award costs in favour of a witness ordered to attend to give evidence before, or produce document to, a court. There is a detailed examination of this topic by Sheppard J in Bank of New South Wales v Withers (1981) 35 ALR 21. According to that analysis, at common law, a person required to attend by subpoena was entitled to his costs and charges of attendance and, if a professional witness, some indemnity for his loss of time. The first statute allowing such expenses was 5 Eliz 1562, c 9 which, by s 12 , provided that a person served with a subpoena should have paid to him "such reasonable sums of money for his or their costs and charges, as having regard to the distance of the places necessary to be allowed in that behalf". Thereafter all superior courts adopted scales that set out the "reasonable costs and expenses" to which a witness was entitled. The scale was set by the judges. Sheppard J's analysis led him to conclude that the witness was only entitled to receive the amount provided for in the scale of fees for witnesses. He said (35 ALR at 38) that "unless the payment is provided for in the rules there can be no recovery". 5 Following the decision in Bank of New South Wales v Withers , O 27 r 4A was introduced. This provides that when a person named in the subpoena is not a party to the proceeding and incurs expense in compliance with a subpoena, the court may order the party who issued the subpoena to pay an amount to compensate the person "for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena". Similar rules were introduced in all states and territories, other than Queensland, Tasmania and the Australian Capital Territory, to deal with what would otherwise have been an unsatisfactory state of affairs. 6 The views of Sheppard J have not withstood the test of time. The most powerful attack came in Danieletto v Khera (1995) 35 NSWLR 684. In that case Bryson J rejected the idea that the entitlement of witnesses to be reimbursed for their costs and expenses could be established by reference to conflicting decisions from long ago affected by a Tudor statute long since repealed. He said (35 NSWLR at 688) that the matter should be approached as one of principle and, according to principle it "is a necessary incident of the exercise by the court of its subpoena power that the court should deal with the question of paying persons whose time and attention are involved in the exercise". That is, the court has an inherent jurisdiction to award in favour of a witness such costs as it thinks appropriate to compensate the witness for his time and expenses incurred in compliance with a subpoena. Thus it has been said, correctly in my opinion, that the rules that fix costs for witnesses "represent[s] but an aspect of the more comprehensive jurisdiction in respect of persons subjected to compulsion by the processes of the Court in proceedings to which they are not parties": Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, 690 per Barrett J.


case_title: Bouras v Grandelis [2005] NSWCA 463

case_text: A "solicitor and client" costs order is to be distinguished from an order for taxation on a solicitor and own client basis. On such a taxation all costs are to be allowed, except if they are unreasonably incurred or unreasonable in amount: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59, 64. On one view the onus lies on the paying party to show unreasonableness: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991). Another view is that it is just "a question of who gets the benefit of any doubt in the mind of the taxing master": EMI Records at 71. See also Bouras v Grandelis [2005] NSWCA 463.