case_text: that background the evidence which it is sought to elicit from Professor Garnaut does not go to the meaning of any particular word or words in the PRRTA Act. The term 'economic rent' appears nowhere in the Act, nor does the term 'resources rent tax' save for the title to the Act. In particular, the Act does not contain any explicitly economic terms whose application to a particular case would be assisted by economic evidence. By explicitly economic terms, I mean words such as 'market' and 'competition' which appear in Pt IV of the Trade Practices Act 1974 (Cth). In proceedings under Pt IV of that Act the evidence of economists may be relied upon to aid in the identification of the relevant 'market' and judgments about the effects, historic or predictive, of particular conduct on competition in a market. 53 Re Michael concerned the application of statutory and Gas Access Code provisions to the determination of an access tariff for a gas pipeline. Parker J (Malcolm CJ and Anderson J agreeing) referred to some of the terms of the relevant Act and the Code as being 'in common use in that field of economics which is concerned with competition policy, or more particularly with the regulation of essential infrastructure' (at [107]). His Honour observed that these words or phrases conveyed a meaning to those familiar with the field of economics differing from that which the words themselves would suggest in ordinary everyday usage. He said (at [107]): 'As the subject matter is by nature conceptual there is no uniform, accepted and certain meaning, but there is a principle or theory, the essential tenets of which are widely understood, though there need not be uniform acceptance of them. In my view, expert evidence may relevantly and usefully inform the court as to this specialised usage, of which the court would otherwise be unaware, so that the court can determine whether the Act and Code is using particular words or phrases in their ordinary everyday usage, or in the specialised usage among those versed in this field of economics.' Importantly his Honour continued (at [107]): 'Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics, and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood.' In Visa , Tamberlin J observed in relation to Re Michael and other cases involving admissibility of expert economic evidence (at [665]): 'The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.' His Honour also agreed with Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79, that, generally, it is not for an expert to give evidence as to the application of a legislative provision, as opposed to furnishing evidence from the viewpoint of an economist with respect to what factors can or should be taken into consideration or ignored. It is also appropriate to note his Honour's prudential observation, with which I agree, that (at [669]): 'In ruling on the admissibility of the expert evidence at an early stage of the hearing, I was conscious that there can be substantial difficulties particularly in relation to issues of relevance and appreciating the overall context against which to properly or fully consider admissibility. The general approach which I took was to err on the side of admitting evidence which was on or close to the borderline, on the basis that such evidence, if admitted, could be evaluated as to substance and weight in final submissions.' Professor Garnaut's evidence assumes that the Act is intended to tax economic rent as he explains that term. The company relies upon various extrinsic materials antedating the passage of the Act as indicative of that purpose. Assuming that purpose is made out, then Professor Garnaut offers what amounts to the inference that the overall objective of the Act is to generate revenue 'without distorting business decisions on the amount or composition of investment or production'. This identified purpose is relied upon to assist the Court to decide in the first place, whether the contentious hedging losses were 'expenses payable by [Woodside Energy] in relation to the sale' of petroleum within the meaning of s 24(a) of the PRRTA Act. Assuming that the hedging losses are properly to be called 'expenses' the question reduces to whether they are expenses 'in relation to' the sale. The words 'in relation to' and similar terms like 'in respect of' or 'in connection with' or just 'in' have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642, the term 'in respect of' was said to have a wide meaning. It '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends' (at 653-654 per Deane, Dawson and Toohey JJ). The words 'in relation to' have been described as a 'prepositional phrase' which is 'indefinite' and which, 'subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters' O'Grady v North Queensland Company Limited [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited. Two things may stand 'in relation to each other' in a variety of ways. The relationship may be spatial, temporal or causal. It may be a relationship of similarity or difference. Relationships between things in the law do not simply exist to await discovery. They are defined by the common law or by legislation and their authoritative interpreters. The criteria by which a statutory test of 'relationship' is to be applied will have to be relevant to and serve the purposes of the statute. The relationship between claimed expenses and the sale of petroleum products in s 24(a) of the PRRTA Act cannot be the subject of a bright line definition covering all cases but it must lie within the bounds of relevance to the statutory purpose. If that purpose can be explained or elucidated by reference to a recognised economic mechanism to which the Act is intended to give effect, then expert evidence about the operating principles of that mechanism can be received. Such evidence may not be material directly concerned with interpretation of provisions of the Act as is extrinsic material received pursuant to s 15AB of the Acts Interpretation Act . Nor can it justify any application of the Act beyond the bounds set by its language. But it may help to identify the purpose of the statute and thus inform the application of ambulatory terms in it such as 'in relation to' in s 24(a). The preceding observations do not import any concluded view about whether the assumption on which Professor Garnaut will base his evidence is made out. That will require a closer consideration of the terms of the Act and the extrinsic materials relevant to its interpretation. It is better done in the context of all the evidence, including the extrinsic materials relied upon. I am not prepared to rule Professor Garnaut's evidence inadmissible. I take it as evidence rather than as submission in that it purports to demonstrate that the economic mechanism to which the PRRTA Act is said to give effect would treat hedging losses as expenses in the way for which Woodside Energy contends. If some of his evidence trespasses into argument, I will simply treat it as such. I do not regard him as offering evidence on the ultimate issue even if that were a difficulty. Rather, it proposes that a certain treatment of hedging losses would advance the purpose of the statute viewed in the light of the economic theory which underpins it. I will therefore admit the evidence proposed to be called from Professor Garnaut. Ultimately, this is a decision about relevance. It may be that in the light of further evidence and argument his evidence will be shown to be based upon a false assumption. If that is so, then it may be that it will be rejected as irrelevant. I am not prepared to find, on the materials presently before me, that the assumption upon which he advances his evidence has been falsified. It seems to me to be at least arguably relevant and so will be admitted. The admissibility of the evidence of Professor Walker It is well established that evidence of accounting practice may be admitted in revenue cases so that the Court has the opportunity to characterise such things as receipts and payments for the purposes of the relevant statute by reference to accounting and commercial realities. That is not to say that such evidence can displace the words of the statute. Nor does it involve the expert witness in interpreting the statute. But where, as in this case, there are terms used of indefinite import such as 'in relation to', 'incurred ... in relation to' and 'made ... in carrying on ... operations', then such evidence may properly inform their application having regard to the purpose of the statute and the context in which the provision appears. In Rowe and Son Pty Ltd v Commissioner of Taxation [1970] HCA 57 ; (1971) 124 CLR 421, Gibbs J referred to expert evidence that it was unusual to bring into the accounts of a trader, making sales on terms only, the payments received or receivable in the year in question and that to do so would not record the true position of the trading. In connection with such evidence generally he said (at 452): 'When the [ITAA] gives no directions on the point, the question when income is earned, and the method of accounting to be adopted for the purpose of ascertaining the income, depend upon business conceptions and the principles and practices of accountancy ...'. In BHP Billiton Professor Walker gave evidence as to the proper accounting treatment to be adopted in the accounts of a corporation such as BHP Billiton. The passage from the judgment of Gibbs J quoted above was quoted in the joint judgment of Hill and Heerey JJ at 134. In Ogilvy Mather Pty Ltd v Federal Commissioner of Taxation (1990) 95 ALR 663, Hill J, in the Full Court, referred to expert evidence which had been adduced from a professor of accounting and said (at 703): 'Accounting evidence cannot be substituted for the test laid down by s 51(1): FCT v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506-7. Nevertheless, as the Full Court of this court pointed out in Hooker Rex Pty Ltd v FCT 88 ATC 4392 at 4399: "... the tendency of judicial decision has been to place increasing reliance upon the concepts of business and the principles and practices of commercial accountancy, not only in the ascertainment of income, but also in the ascertainment of expenditure: DCT (SA) v Executor Trustee and Agency Co of South Australia Ltd [1938] HCA 69 ; (1938) 63 CLR 108 at 153; FCT v Australian Guarantee Corp Ltd (1984) 54 ALR 209; 84 ATC 4642'.' Applying the prudential approach adopted by Tamberlin J in the Visa case, to which I referred earlier, I am of the opinion that Professor Walker's evidence should be admitted as arguably relevant to the application of the terms to which I have referred and the proper characterisation of the hedging losses in the context of the provisions to which I have referred. Conclusion For the preceding reasons, the evidence of Professors Garnaut and Walker will be admitted at the hearing. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 4 October 2006 Counsel for the Applicant: Mr J De Wijn QC and Mr A Broadfoot Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Ms M Gordon SC and Mr SH Steward Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 September 2006 Date of Judgment: 4 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1303.html


case_outcome: cited

case_title: Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642


case_title: O'Grady v North Queensland Company Limited [1990] HCA 16 ; (1990) 169 CLR 356


case_title: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472


case_title: Rowe and Son Pty Ltd v Commissioner of Taxation [1970] HCA 57 ; (1970) 124 CLR 421


case_title: Ogilvy & Mather Pty Ltd v Federal Commissioner of Taxation (1990) 95 ALR 663


case_outcome: distinguished

case_text: The parties proceeded on the basis that, as the application to the Federal Magistrates Court was determined summarily as an abuse of process, it is an interlocutory judgment: see Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177; SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 at [48] ; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 ; Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [8] - [15] ; SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798. The nature of the present application, being an application for leave to appeal, appears to recognise that position: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA). By way of contrast, an appeal lies as of right from a final decision of the Federal Magistrates Court: see s 24(1)(d) of the FCA. 4 The respondent submitted that the applicant's application for leave to appeal was out of time as O 52 r 10(2A)(b) allows seven days to file the application from the date judgment was pronounced. That Rule applies only where leave to appeal is sought from an interlocutory judgment of the Federal Court. The time for filing an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court is set out in O 52 r 5(2), which allows 21 days. Consequently, this application (if it is properly an application for leave to appeal), having been made on 13 October 2006, was made in time. 5 In my view, leave to appeal the Federal Magistrate's decision is not required as I think the decision of Raphael FM was a final decision. 7 The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35 and Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33] , Lander J suggested that those two decisions may not sit readily together. 8 In the more recent case of Re Luck [2003] HCA 70 ; 78 ALJR 177 at 179, the High Court (McHugh ACJ, Gummow and Heydon JJ) said: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexations or an abuse of the process of the court or does not disclose a reasonable cause of action." The High Court was concerned with whether summary dismissal in that circumstance would finally determine the rights of the parties. In that case, Ms Luck had been refused leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court or a frivolous or vexatious proceeding. It was concluded that her rights had not been finally determined because she retained the right to issue proper proceedings.


case_outcome: applied

case_text: The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35 and Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33] , Lander J suggested that those two decisions may not sit readily together. 9 But their Honours did not seek to qualify or explain what had earlier been said in Anshun [1980] HCA 41 ; 147 CLR 35, and the unequivocal statement at page 179 does not specifically refer to decisions such as in this case, where the applicant's application to review the decision of the RRT for the second time sought to go behind an already final judgment which had finally determined his rights. 10 Anshun [1980] HCA 41 ; 147 CLR 35 recognises that different results flow, depending on the grounds on which a proceeding is deemed to be an abuse of process. At 38, Gibbs J said: "There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata ..." The Court held in Anshun [1980] HCA 41 ; 147 CLR 35 that summary dismissal in the latter circumstances did finally determine the rights of the parties and so should be considered a final, rather than interlocutory, judgment. 11 In this matter, the applicant seeks to challenge afresh a decision that he has already unsuccessfully challenged in the Federal Magistrates Court and in this Court. His application for special leave to appeal is still before the High Court. The decision of Raphael FM, that the fresh application was an abuse of process, was based upon the application of the principles in Anshun [1980] HCA 41 ; 147 CLR 35. In my view it was therefore a final judgment. I consider that it finally determined the applicant's rights, as he has now (subject to the present proceeding before this Court) no right to further challenge the RRT decision, except by pursuing his earlier application for special leave to appeal to the High Court. 12 Accordingly, strictly speaking, in my view leave to appeal from the decision of Raphael FM was not necessary. 13 In the result, my view on that issue does not matter. If leave to appeal were necessary, I would refuse it for the reasons set out below. If leave to appeal were not necessary, I would dismiss the appeal for the same reasons.


case_outcome: considered

case_text: In Cabal v Secretary, Department of Justice (Victoria) (2000) 177 ALR 306 Gray J considered a claim similar to Mr Rivera's concerning treatment and the asserted right by persons awaiting extradition not to be held in the same manner as convicted persons (at [14] [15]). There it was argued that the Act does not permit a person to be held under a regime of correction but only under a regime of detention and that the term "prison" should be read this way. The submission was that the prison in which the applicants were held, a correctional prison, was not a prison within the meaning of the Act (at [16]). There, too, the applicants sought habeas corpus. 19 As noted by Gray J in Cabal (at [21]), "prison" is a term of broad definition. It is defined in the Macquarie Dictionary as meaning ' a public building for the confinement or safe custody of criminals and others committed by law ' or ' a place of confinement or involuntary restraint '. The common law has accorded the term similar breadth. It encompasses both confinement and custody. Justice Gray concluded that Parliament intended, by s 53, to give the term "the broadest meaning". His Honour concluded that ' the intention of s 53 of the Act is to ensure that, so far as practicable, those detained under the Extradition Act will not be treated as convicted criminals, but will be treated according to whatever regime exists in the particular state or territory for persons held in prison awaiting trial ' (at [21]). In Victoria, there was no distinction between convicted and unconvicted prisoners. Where that was the case, the way in which a person was held under s 53 was not inconsistent with the terms of the Act (at [22]). His Honour concluded (at [23]) that even though Parliament sought to achieve the object of treating persons awaiting extradition as humanely as possible, there was no occasion for reading down the definition of "prison" to promote that underlying object or purpose. 20 In Cabal , Gray J concluded (at [33]) that there was no valid argument available to reduce the meaning of the term "prison" in s 19(9) of the Act so as to render it inapplicable to different classes of prison. Similarly, I am of the view that no arguable case for any breach of the Act on this basis has been made out. The term "prison" applies to the Remand Centre and to Parklea. 21 The relevant NSW Act with respect to the administration of sentences is the Crimes (Administration of Sentences) Act 1999 (NSW) ('the Administration Act'). There is nothing in the Administration Act or the Act which imposes any obligation on the NSW correctional authorities or the Commonwealth to accord to Mr Rivera segregation from convicted persons. 22 The Remand Centre is a maximum security correctional facility, one of three correctional facilities which make up the Silverwater Correctional Complex. It operates for prisoners on remand, or awaiting transfer, or attending Court. Most inmates leave the Remand Centre within the first few months of arrival. This is either because they obtain bail and are released or they are classified and transferred to the centre of classification. Parklea is a correctional centre that houses remand and sentenced maximum and minimum-security prisoners. Each of Parklea and the Remand Centre has, since 2001, been declared a correctional centre pursuant to ss 225 and 226 of the Administration Act. That is, they have the same prison classification under the Administration Act. 26 In Cabal (at [26]) Gray J noted that Australia is a signatory to the Covenant and has ratified it, subject to certain conditions. One of those reservations is in Article 10 which provides: ...in relation to paragraph 2(a) the principle of segregation is accepted as an objective to achieved progressively. 27 That reservation was in effect at the time of the decision in Cabal . There is no suggestion that it has been withdrawn and the parties accept that the reservation is still in force. After considering the Covenant and Australia's obligations in the light of the reservation and the Act in some detail, Gray J concluded (at [28]) that the Act has a clear meaning which cannot be changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. His Honour also held that, even if the actions of one state were such as to place Australia in breach of its international obligations, that would not change the meaning of the Act. Neither the Act nor the Administration Act impose any obligation on the NSW correctional authorities to accord Mr Rivera, or any other prisoner, segregation from convicted persons. Even if Mr Rivera's imprisonment at Parklea were a contravention of Australia's obligations under the Covenant, it would be of no assistance to him. The terms of the Covenant form no part of the law of Australia ( Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 per Mason CJ and McHugh J at 305; per Brennan J at 321; per Dawson J at 348; per Toohey J at 359-360).


case_text: That reservation was in effect at the time of the decision in Cabal . There is no suggestion that it has been withdrawn and the parties accept that the reservation is still in force. After considering the Covenant and Australia's obligations in the light of the reservation and the Act in some detail, Gray J concluded (at [28]) that the Act has a clear meaning which cannot be changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. His Honour also held that, even if the actions of one state were such as to place Australia in breach of its international obligations, that would not change the meaning of the Act. Neither the Act nor the Administration Act impose any obligation on the NSW correctional authorities to accord Mr Rivera, or any other prisoner, segregation from convicted persons. Even if Mr Rivera's imprisonment at Parklea were a contravention of Australia's obligations under the Covenant, it would be of no assistance to him. The terms of the Covenant form no part of the law of Australia ( Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 per Mason CJ and McHugh J at 305; per Brennan J at 321; per Dawson J at 348; per Toohey J at 359-360).


case_text: Habeas corpus is not available to remedy perceived inadequacies in the conditions of custody. Habeas corpus is not available to impeach collaterally the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity (Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480 per Deane J; Re Stanbridge's Application (1996) 70 ALJR 640 at 642-3 per Kirby J).


case_title: Re Stanbridge's Application (1996) 70 ALJR 640


case_outcome: followed

case_text: for the respondents has submitted that the relevant principles which should guide me in considering his clients' application were summarised by Lee J in Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484. In that case, his Honour said: Section 500(2) of the Corporations Law requires the leave of the Court to be obtained before an action may be commenced against a company in liquidation. The purpose of such a provision is to prevent a company in liquidation being subjected to actions that are expensive and, therefore, carried on at the expense of the creditors of the company and, perhaps, unnecessarily: Fielding v Vagrand Pty Ltd (In Liquidation) (1993) 11 ACLC 172 at 174; Ogilvie Grant v East (1983) 1 ACLC 742 at 744; Maher v Taylor (1984) 8 ACLR 931 at 934; Re A J Benjamin Ltd (In Liquidation) (1969) 90 WN (Pt 1) (NSW) 107 at 110. In determining whether leave should be granted, the Court considers whether the balance of convenience lies in allowing the applicant to proceed by way of action to judgment, or whether the applicant should be left to pursue his claim by lodging a proof of debt with the liquidator. The matter is one of discretion and the onus is on the applicant to demonstrate why it is more appropriate, in respect of a particular claim, to proceed by way of action: Fielding v Vagrand at 174; Ogilvie Grant v East at 744; Stewart v Intercity Distributors Limited (1960) NZLR 944 at 946. For leave to be granted, it must be shown that there is a serious or substantial question to be tried: Oceanic Life v Insurance & Retirement Planning Services Pty Ltd (In Liquidation) (1993) 11 ACLC 1157 at 1159; Olgilvie Grant v East at 744; and a real dispute between the parties: Fielding v Vagrand at 175; Zempilas v J N Taylor Holdings Ltd (In Provisional Liquidation) (No 4) (1991) 9 ACLC 297 at 298; Capita Financial Group Ltd v Rothwells Ltd (No 2) (1989) 7 ACLC 634 at 637. Leave will not be granted where the applicant does not have a genuine claim or where the claim would be futile. Hence, leave has been refused where the claim has been for unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust, on the basis that by virtue of the joint application of s 82(2) Bankruptcy Act 1966 (Cth) (" Bankruptcy Act ") and s 553(2) of the Corporations Law (or equivalent provisions), such a claim would not be provable in the winding up of an insolvent company unless judgment had been entered prior to the order for winding up: Re Autolook Pty Ltd; O'Brien v Bills (1984) 2 ACLC 30 at 33, Re A J Benjamin Ltd (In Liquidation) at 110; Page v Commonwealth Life Assurance Society Ltd (1935) 36 SR (NSW) 85 at 99; In re Southern Cross Coaches Ltd (1932) 49 WN 230; Cutten and Harvey v Mount (1989) 50 SASR 81 ; Fielding v Vagrand at 176-177; cf Re Berkeley Securities (Property) Ltd [1980] 3 All ER 513. As a result of amendments to the Corporations Law in 1992 (see ss 553 and 553E), s 82(2) of the Bankruptcy Act is no longer imported into the Corporations Law , and a claim for damages against Nericon would no longer be futile for that reason. However, nonetheless it may be inappropriate in all the circumstances to grant leave in respect of such a claim. The orderly winding up of Nericon and the interests of Nericon's existing unsecured creditors must also be taken into account: Oceanic Life Ltd v Insurance and Retirement Planning Services Pty at 1159. In a situation such as the present, where the liquidator has no funds to conduct a defence and there is little prospect of funds becoming available and the company is not insured against the damages sought, there is strong reason for refusing leave: Maher v Taylor at 934; Re A J Benjamin at 109-110. Furthermore, claims against Nericon cannot be sustained unless CALM succeeds in its claims against the first and second respondents. With respect to the declaratory and injunctive relief, it is a factor in favour of granting leave that the relief cannot be obtained otherwise than by a successful application to the Court: Vagrand Pty Ltd (In Liquidation) v Fielding (1993) 11 ACLC 411 at 414; Fielding v Vagrand at 177; Wyley v Exhall Coal Mining Co Ltd (1864) 33 Beav 538. The real purpose of the application to join Nericon is to obtain orders that will bind it in the event that the claims against the first and second respondents are made out. Another matter to consider in granting leave is that the joinder would enable the liquidator to participate in the mediation process provided by this Court and being used by the existing parties. However, these purposes can be achieved without Nericon actively participating in the proceedings as a respondent. It is likely that the declaratory and injunctive relief sought by CALM against Nericon could be obtained by consent, if CALM succeeded against either the first or the second respondent. On the material before the Court it is apparent that at least the second respondent will contest the applicant's claims. In view of the undertaking given by the liquidator, CALM's position is protected as far as Nericon is concerned and no interlocutory proceeding against Nericon is required. If circumstances change CALM may apply to vary the order I propose to make. Meanwhile, if it considers it appropriate CALM may lodge a proof of debt with the liquidator. A grant of leave can be made subject to conditions directed at minimising interference with the orderly winding up of the company in liquidation: Oceanic Life Ltd v Insurance and Retirement Planning Services Pty Ltd at 1159. In the present case, it is appropriate in all the circumstances that leave be granted to join Nericon to the proceedings, the proceeding against Nericon being restricted to claims for declaratory and injunctive relief and not to include a claim for damages or account of profits. In addition, Nericon will not be required to participate in the proceeding by filing a defence or taking any other step. In essence, the applicant for leave must satisfy the Court that there is a serious or substantial question to be tried and that the interests of justice (including the balance of convenience) would be best served by the applicant for leave being permitted to proceed. The fact that a money judgment may not be ordered is not determinative. The prospect of making declarations may justify the grant of leave. One matter which is often important is whether the applicant for leave should be left to pursue his claim by lodging a proof of debt. In the present case there will almost certainly be difficulties in the respondents successfully lodging a proof of debt in the liquidation of Bedrock. However, this is not a significant matter in this case, since there is no prospect that any funds will be available to meet such a proof in any event. Although initially I had some reservations about granting the leave which the respondents seek, the respondents have now satisfied me that it is appropriate, in the present case, to make an order in the terms of the usual order made in cases such as this. I am prepared to make those orders because the subject matter of the contraventions alleged against Bedrock is serious and involves an important matter concerning the regulation of workers' safety and should, therefore, receive the consideration of the Court in the way contemplated by the reasoning of Lee J in Ringfab Environmental Structures Pty Ltd [1997] FCA 1484 , notwithstanding the fact that the Court may not order any monetary judgment in favour of the respondents against Bedrock and notwithstanding the fact that Bedrock has no assets. For these reasons I propose to make the orders sought. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 21 September 2009 Counsel for the Applicant: Mr D Stewart Solicitor for the Applicant: Clinch Long Letherbarrow Pty Limited Counsel for the Respondents: Mr CD Freeman Solicitor for the Respondents: HopgoodGanim Lawyers Counsel for Mr John Howard Austin: Mr MJ Heath Solicitors for Mr John Howard Austin: Norman Waterhouse Lawyers Date of Hearing: 17 September 2009 Date of Judgment: 17 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1054.html


case_text: has also drawn my attention to the observations made by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382. At 388, his Honour said that, in many cases, there will be a public interest in ensuring that all errant entities are identified and dealt with. This is particularly the case where the subject matter of the contraventions is serious and involves matters of the kind in play here, that is to say, the safety of workers on mine sites.


case_outcome: related

case_text: this matter an extension of time is sought for filing a notice of appeal from the decision of Scarlett FM made on 17 March 2006 ( SZHUC v Minister for Immigration & Multicultural Affairs [2006] FMCA 460). Both the applicant and his solicitor have given evidence that the applicant gave prompt instructions to appeal which were not complied with by the solicitor, solely because of his default due to what he claims was distraction at the time caused by external events which I need not go into. Whilst the position revealed is quite unsatisfactory and has led to an unacceptable delay, I am not prepared, in this case, to penalise the applicant because of the default of his solicitor. To say he has the right to sue his solicitor is of no comfort in a case of this kind. It is necessary, however, to also show there is a proper basis for an appeal. In the course of argument, I have indicated that a number of the proposed grounds will not be allowed. Some meet Full Court authority head on. That is the case in respect of proposed grounds 3 and 4. Ground 5 was not put before the learned Federal Magistrate and should not be permitted on appeal. Ground 6 is contrary to the statute.


case_outcome: referred to

case_text: am persuaded to permit grounds 1 and 2 because of the decision of the Full Court in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Whilst the solicitor for the Minister has submitted that there are differences between this case and the underlying factual situation of that case, it seems to me that the applicant should not be shut out from seeking to bring himself within the rather ample boundaries set by that case if it is to be regarded as good law, and for present purposes I must so regard it. It is not appropriate for me to say any more than that I think that the rather liberal threshold has been met. I order that: (1) the time within which to file and serve a notice of appeal in the form initialled by me is extended to 5.00 pm on Monday 6 November 2006; (2) the costs of this application are the first respondent's costs in the appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 November 2006 Solicitor for the Applicant: Mr D Knaggs of Cross Law Solicitor for the First Respondent: Ms Felicity Kerr of Blake Dawson Waldron Date of Hearing: 31 October 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1449.html


case_text: Scarlett FM correctly found that the Tribunal did not have any obligation to notify the applicant of any information under s 424A(1). The only information used by the Tribunal in an adverse way was derived from the applicant's oral evidence at hearing, and from general country information about Falun Gong practitioners and document fraud in China. The information from the oral evidence at hearing falls within the exception in s 424A(3)(b) , as it was information "that the applicant gave for the purpose of the application". The information from the general country information falls within the exception in s 424A(3)(a) , as it was "not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member": Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 26 at [71] - [73] ; [2004] FCAFC 264 ; (2004) 140 FCR 572, 586-587.


case_text: The asserted basis for the allegation of bias was that the Tribunal did not believe the appellant. His Honour noted this to be a circular and unconvincing argument. There was no evidence of bias or bad faith in the decision of the Tribunal: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] - [44] . His Honour then considered whether the Tribunal refused the application without evidence, rejected this and had regard to the positive duty imposed on the Tribunal by s 65 of the Act to be positively satisfied that the relevant criteria for grant of a visa had been satisfied. 18 The third ground was dismissed by his Honour who found that the independent country information was irrelevant relating as it did to the Chinese Government crackdown on Falun Gong, the situation in Tianjin where the appellant claims to have taken up Falun Gong in 2001. The information concerned the years 2001-2006 and as his Honour found could not therefore be characterised as being out of date. 19 The Notice of Appeal contains the following grounds: '2. The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to inform me why the information is relevant to my application, and I was not given an opportunity to comment upon the reason. 3. The Tribunal had bias against me and did not consider all the information and evidence provided for my application for a protection visa. The Tribunal misunderstood my claims and could not consider my application according to s 91R of the Migration Act 1958 .' (Transcribed without alteration). 20 The first ground, in effect, alleges a breach of s 424A of the Act . The second asserts bias, that the Tribunal failed to consider all the information which accompanied the protection visa application and that it misunderstood his claims and could not consider his application according to s 91R of the Act . 21 The respondent made the following submissions: 23 It is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision maker. It must be clearly proved by evidence. It is rare for a Court to find that an administrative decision maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]. 24 There is no evidence of bias, or apprehended bias, in any of the material before the Court. The mere fact that the Tribunal found that the applicant was no credible, and did not believe the applicant's claims, does not establish bias on the part of the Tribunal member. 25 This ground is not particularised. There is no evidence to support the allegation that the Tribunal misunderstood any of the applicant's claims.


case_text: The last two arguments under ground 2 were not agitated before Scarlett FM. In order to raise a new ground the appellant must demonstrate that it is expedient and in the interests of justice to allow the ground to be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. Factors relevant to the Court's consideration include, inter alia, the appellant's prospects of success on appeal on the new ground: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] .


case_title: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1


case_title: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168


case_text: The MRT also concluded that that the nominator did not require assistance because of "other serious circumstances" at the time of application. Citing Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (" Hussein "), the MRT stated that it was "not satisfied that the nominator's concerns for the safety of the visa applicant manifest a need for assistance due to circumstances serious enough to reach the threshold set by 'death, prolonged illness or disability'". The MRT noted that the nominator worked on a full time basis and that Mr Kleynhan's August 2002 report stated that the nominator's stress level had not been a major concern in 1998. 9 Next, the MRT considered whether the assistance provided by the appellant was "substantial" within the meaning of regulation 1.03. The applicant claimed that he assisted his uncle by providing him with company, assurances and moral support, as well as helping with household chores. The MRT concluded that this assistance was not "substantial" in the relevant sense. Finally, the MRT considered whether circumstances had changed sufficiently at the time of decision to alter any of these conclusions. The MRT determined that the appellant was not a special need relative of his uncle at the time of decision. 10 On 16 July 2003, the appellant filed an application in the Federal Court of Australia, pursuant to s 39B of the Judiciary Act 1908 (Cth), for review of the MRT's decision. The proceeding was transferred to the Federal Magistrates Court. Before a Federal Magistrate, the appellant argued that the MRT had misapplied the definitions of "prolonged illness", "other serious circumstances" and "substantial and continuing assistance". In a decision delivered on 12 November 2004, his Honour dismissed the application for review. This is an appeal from that judgment. 11 The parties agreed that, although the "special needs relative" regulation was omitted from the Regulations on 1 December 1998, the MRT was to have determined the application as the law stood at the time of application on 30 July 1998. The appellant's Notice of Appeal raised a number of grounds, not all of which were pursued at the hearing today. 12 In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39 (" Wu ") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances." The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein . 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error.


case_text: In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39 (" Wu ") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances." The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein . 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error.


case_text: Furthermore, in written submissions, citing Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473 (" Cohen ") per McHugh J, the first respondent claimed that as "serious circumstances" is used in its ordinary, non-technical sense, its meaning is a question of fact. Accordingly, the first respondent submitted that, even if the MRT did apply erroneous precedent concerning the meaning of "serious circumstances", this was not jurisdictional error. 20 As no error has been shown in the MRT's decision, I need not consider the significance of Cohen and whether or not any error of interpretation would have been a jurisdictional error. 21 I would order that the appeal be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 18 April 2006 Counsel for the Appellant: Mr A Hands Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 April 2006 Date of Judgment: 18 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/421.html


case_text: To be a special need relative, a visa applicant must be willing and able to provide substantial and continuing assistance: see, e.g., Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 at [22] per Moore, Emmett and Bennett JJ. The language of regulation 1.03 makes this clear. 18 Because of the appellant's concession that it was open to the MRT to find that the assistance he provided to the nominator was not substantial, the appellant has also effectively conceded that it was open to the MRT to find that he did not satisfy a necessary requirement of the visa. The appeal must be dismissed if only for this reason.


case_text: I delivered judgment in this matter on 7 March 2008: Coombes v Registrar of Aboriginal Corporations [2008] FCA 321. I reserved the question of costs, and gave the parties the opportunity to exchange written submissions on costs.


case_text: Both the first and second respondents seek costs of the proceedings to date on an indemnity basis against the applicants, relying upon the principles discussed in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 223-234 and alternatively party and party costs. The applicants contend that no order as to costs should be made at all in the circumstances. 3 In the proceeding the applicants unsuccessfully sought orders requiring the second respondent, the Administrator of the Nyangatjatjara Aboriginal Corporation (NAC) under the Aboriginal Councils and Associations Act 1976 (Cth) (the Act), to take certain steps in the administration relating to the preparation of a Register of Members, to the calling of certain general meetings, and to the preparation of certain reports with a view to having the NAC return to the control of its members. They also unsuccessfully sought orders requiring the first respondent to require the second respondent to establish a current Register of Members of the NAC and for declaratory orders as to the proper operation of the Act. 4 In my view the application for indemnity costs should be refused.


case_text: Although I concluded, for the reasons I expressed, that the applicants' claims should not succeed, that was a view reached after hearing all of the evidence. By way of an extreme example, had there been total inactivity by the second respondent appointed under the Act, and had the first respondent been indifferent to that circumstance, the Court may have concluded that some error of law underlay that inactivity. The point is that the conclusions generally depended upon findings made on the evidence. There were some orders sought which I found simply not to be available as a matter of law, but on those matters the hearing including submissions was relatively brief in the context of the entire hearing. I do not therefore consider, viewed overall, that the applicants' claims were so unreasonable or so unlikely to succeed, or that they conducted their case in such a manner, that an award of indemnity costs should be made. Compare Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1998) 81 ALR 397 at 401.


case_title: Ritter v Godfrey [1920] 2 KB 47

case_text: The applicants identified a number of matters relevant to whether the normal order as to costs should apply. It is necessary to identify special circumstances which would lead to departure from the general rule that costs should follow the event: Ritter v Godfrey [1920] 2 KB 47 ( Ritter ), at least at a practical level. 9 The first was that the administration of the NAC was initiated by the first respondent, and then the applicants were in effect obliged to institute proceedings because the respondents denied them information about the progress of the administration. The applicants were the Anangu, ie representatives of the three Aboriginal Communities directly affected by the appointment of the second respondent. As the evidence in the proceedings showed, there was a real concern on the part of the first respondent about the maintenance of a Register of Members by the Governing Committee of the NAC before the appointment of an Administrator and a real concern about how the then members of the Governing Committee came to hold their offices (as well as about other matters concerning the administration of the NAC). However, at a practical level, I do not think there is any doubt that at least informally the applicants were all, or almost all, members of the Governing Committee (at least a de facto governing committee) of the NAC at the time of the appointment. They were, and remain, genuinely and properly interested in the well being of the NAC on an ongoing basis and the effect of the administration upon its affairs. The NAC and its subsidiary or associated activities was a very substantial enterprise. That proper interest (in the practical sense) arose from the applicants being representatives of the Anangu as well as their previous status. It is also apparent from the evidence that the applicants, through their solicitors, invited the respondents to keep them informed as to the progress of the administration but that their requests for information were largely unsatisfied. That circumstance must be seen in context. Their request for information was, on occasions, more than that: assertions that the second respondent, and later the first respondent, should do things which they allegedly had not done; and that the second respondent was doing things detrimental to the interests of NAC. That may explain, in large measure, why the applicants' requests for information were not satisfied. In addition, the respondents took the view that their asserted position as officers of the NAC was in doubt for the reasons already given. Nevertheless, no other persons more obviously than the applicants were identified as persons from the Anangu who might have been kept informed of the progress of the administration, and I think it was appropriate that, by some means, the Anangu should have been kept generally informed as to its progress. It is therefore understandable that the applicants were "invited" (to use the word used by them in submissions) to commence proceedings by the respondent. I shall return to this feature later in these reasons. 10 The applicants also contended that any order for costs against them, given that they were seeking to involve themselves in the administration of the NAC and in the light of its very significant interest to their communities, would "send a message to Aboriginal persons not to involve themselves in such matters". I place little weight on that factor. An applicant has a perceived interest in the matters raised in the particular proceeding in every circumstance, and not uncommonly that interest is shared with others. Sometimes, for that reason, the applicant is supported by others interested, including support as to the costs of the proceeding. But it is no principle of law that the fact that the proceedings are brought by one person, inter alia, for the indirect benefit of others or because there are others interested in the outcome means that that applicant should not be obliged to pay the respondents' costs if the proceedings are unsuccessful. Nor is there any principle, so far as I am aware, that the exercise of the costs discretion should be exercised differently because the applicants are indigenous persons. I do not think the applicants meant to submit that. 31 No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.


case_outcome: discussed

case_title: Ruddock v Vadarlis (2001) 115 FCR 229

case_text: Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter.


case_text: Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter. 13 In Geeveekay , even though the appeal involved an important question of law, the resolution of which was in the public interest, namely whether the terms of certain contracts for the sale of land were credit contracts, regulated by the Consumer Credit Code (Vic) , the proceeding was of a private nature. In effect, the applicant in Geeveekay brought the appeal in the pursuit of its own commercial interests, and there was no sufficient reason to distinguish it from other private litigation between a member of the public and a government agency. The present case, in my view, falls within the latter category. 14 Finally, the applicants contended that, because the costs of the first respondent could be recovered from the property of the NAC: see s 74 of the Act, including the costs of the second respondent incurred as Administrator upon the appointment of the second respondent, that is a more appropriate avenue for the respondents to be protected as to the costs of the proceedings than an order against the applicants. They rely on the right under s 74, but do not want it exercised. They submit that the Registrar should not exercise those powers because (they contend) the exercise of them would render the NAC insolvent and lead it to being wound up. I do not know enough about the financial circumstances of the NAC, or the progress of the administration, to know whether that is the case. There is some evidence to suggest that the NAC through various business activities conducted through entities in which it had an involvement and that it had a very substantial range of assets and perhaps liabilities. I do not think that matter provides a basis for not applying the usual rule as to costs. 15 One matter upon which the applicants sought to make submissions was based upon proposed affidavit evidence relating to the question of costs. That evidence was to show that the second respondent, despite evidence given at the hearing, had not progressed the administration with the speed at which he had said he would, and that the outcome of the administration has been regarded by the Anangu as unsatisfactory, even though it is ongoing. The respondents opposed the application to rely upon that affidavit evidence on two grounds. Firstly, that it was irrelevant to the exercise of the costs discretion in any event. And secondly, that it should not be received in its current form partly for reasons of form and partly because they would then wish to contradict it and to cross-examine the deponent about it. I do not propose to receive that material. I do not think the events after the conclusion of the hearing are appropriate matters to address in relation to the exercise of the costs discretion, particularly as they are apparently contentious and would prolong the hearing. For that reason, I propose also not to receive the additional responsive affidavit upon which the second respondent putatively sought to rely.


case_text: Generally, a successful respondent, in the absence of special circumstances, has a reasonable expectation of obtaining an order for the payment of costs by the applicant. However, the Court has a discretion to make no order for costs against a successful respondent if the particular circumstances warrant it: see Donald Campbell & Co v Pollack [1927] AC 732 at 810-812. In Schaftenaar v Samuels (1975) 11 SASR 266 ( Schaftenaar ), Wells J at 273-275 discerned guiding principles for the exercise of the discretion. In essence, the Court is entitled to take into account any facts connected with or leading up to the hearing which have been satisfactorily proved or which have been observed during the progress of the case. If there has been conduct on the part of the respondent such as to lead the applicant reasonably to think that he or she had a good cause of action against them; or if the respondent has engaged in misconduct in the course of and in connection with the litigation, the discretion may be exercised to make no order for costs against a successful party. I think the present circumstances, for the reasons I have given, place this matter in the area where that discretion might be exercised, although they do not clearly fall into either of the two categories specifically mentioned in the preceding sentence. Obviously, they can only be illustrative and not definitive.


case_text: Generally, a successful respondent, in the absence of special circumstances, has a reasonable expectation of obtaining an order for the payment of costs by the applicant. However, the Court has a discretion to make no order for costs against a successful respondent if the particular circumstances warrant it: see Donald Campbell & Co v Pollack [1927] AC 732 at 810-812. In Schaftenaar v Samuels (1975) 11 SASR 266 ( Schaftenaar ), Wells J at 273-275 discerned guiding principles for the exercise of the discretion. In essence, the Court is entitled to take into account any facts connected with or leading up to the hearing which have been satisfactorily proved or which have been observed during the progress of the case. If there has been conduct on the part of the respondent such as to lead the applicant reasonably to think that he or she had a good cause of action against them; or if the respondent has engaged in misconduct in the course of and in connection with the litigation, the discretion may be exercised to make no order for costs against a successful party. I think the present circumstances, for the reasons I have given, place this matter in the area where that discretion might be exercised, although they do not clearly fall into either of the two categories specifically mentioned in the preceding sentence. Obviously, they can only be illustrative and not definitive. 31 No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.


case_text: The courts have been careful not to use the discretion as a punishment or a penalty for disapproval of conduct leading up to and during the litigation. However, the courts most commonly speak about requiring "good cause" in order to depart from the usual costs order. Whether such good cause exists is always a matter of judgment: see Robertson & Moffat v Belson [1905] VLR 555 at 562 per Madden CJ. The judge's discretion is to be exercised in accordance with the justice of the case, the relevant test being "whether it would be more fair as between the parties that some exception should be made to the general rule": see Cates v Glass [1920] NZLR 37 at 68 per Edwards J.


case_title: Cates v Glass [1920] NZLR 37


case_title: Jones v Curling (1884) 13 QBD 262

case_text: No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.


case_title: Huxley v West London Extension Railway Co (1889) 14 App Cas 26


case_title: Bostock v Ramsey Urban District [1900] 2 QB 616


case_title: Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201


case_title: Latoudis v Casey (1990) 170 CLR 534

case_text: In Latoudis v Casey (1990) 170 CLR 534 , the Court also considered the principles which guide a court in exercising the discretion whether to award costs. In that case the defendant was charged with theft of a motorcar, receiving stolen goods and unlawful possession of the same goods but was acquitted. The Magistrate had refused the defendant's application for costs on the ground that the informant had acted reasonably in instituting the proceedings and that the defendant had caused suspicion to fall on him by failing to seek proof of ownership of the goods when he acquired them. Mason CJ, Toohey and McHugh JJ (Brennan and Dawson JJ dissenting) held that the Magistrate's exercise of the costs discretion had miscarried and the defendant was entitled to his costs. McHugh J at 569-570 set out the following test: Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully bought against the defendant or that the conduct of the defendant occasioned unnecessary expense... Thus non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs. ... A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs.


case_title: Jennings v Zilahi-Kis [1972] 2 SASR 493

case_text: In Jennings v Zilahi-Kis [1972] 2 SASR 493 , fraud proceedings were not successful. However, Bray CJ held that, even where fraud is not established, a successful defendant may be deprived of his costs by reason of circumstances leading up to and connected with the litigation. At 520 his Honour said: But it does mean, in my view, that I am justified in holding that the defendant company to a large extent brought this litigation upon itself. It has so enmeshed itself in conflicting obligations and ambiguous behaviour that it is not surprising that the plaintiff advisers decided to join it in this action. It could not have acted as it did, it might not have unreasonably have thought, unless it had been implicated in the original misrepresentations.


case_text: Hence, the costs discretion has been exercised against successful defendants where the defendant's conduct has occasioned unnecessary litigation and expense or has inappropriately prolonged proceedings. For example in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 , the way the defendants had pleaded their case, their conduct at a mediation conference and their counsel's failure to comply with orders pre-trial, caused the issues to be obscured, and unnecessary evidence to be led, resulting in an unnecessarily prolonged trial. Ipp J at 142 held that justice required there should be no order as to costs. See also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15; and Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) (1987) 43 SASR 588 per Jacobs J at 592.


case_title: Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1


case_title: Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1987) 43 SASR 588


case_text: The procedural background to these proceedings is set out in my judgment delivered on 14 March 2007: see Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351 , particularly at [12] to [39]. 12 In this proceeding, a number of notices of motion have been filed by Ms Bahonko at various times. Some of those motions have been completely dealt with, some of them have been partly dealt with, and others have not been determined being left to await the determination of the applications the subject of these reasons. It is useful to set out the parts of the notices of motion that remain open for determination by the Court: 1. As mentioned above, the motion of the NBV, notice of which was dated 15 September 2006, seeking orders that Ms Bahonko be refused leave to extend time for the initiation of this proceeding and, in the alternative, for summary disposal of the proceeding if leave to initiate is granted. 2. As mentioned above, the Minister's motion, notice of which was also dated 15 September 2006, seeking orders that there be judgment for the Minister against Ms Bahonko under s 31A(2) of the Federal Court Act. 3. Ms Bahonko's motion, notice of which was dated 22 September 2006, seeking orders: 3.1 "That solicitor Ms Dominique Saunders will be held to account for deception/fraud committed on 01/09/06"; 3.2 "That Ms Saunders will be held accountable for the obstruction of justice, trickery, fraud, making false statements"; 3.3 "That the current respondents' motions of 14 and 15/09/06 be dismissed and further leave sought from the Judge allocated permanently to the case and in the applicant presence"; 3.4 "That Justice Ryan orders be set aside"; 3.5 "That a new direction hearing be established and conducted by the Judge without the conflict of interest and permanently allocated to the case"; 3.6 "That extension of time to institute appeal against Justice Ryan orders be granted to applicant". 4. Ms Bahonko's motion, notice of which was dated 3 October 2006, which seeks, amongst other things, leave to appeal against the directions made by Ryan J on 1 September 2006, and in particular, orders in the following terms: 4.1 "Extra time to lodge application for leave to appeal Justice Ryan Orders of 01/09/06 is granted to the applicant"; 4.2 "Leave to appeal Justice Ryan orders from 01/09/06 are given to the applicant"; 4.3 "Applicant is exempted from the strict following of the Court Rules"; 4.4 "The Court Hearings including trial will be scheduled no more often than on a fortnightly basis". 5. Ms Bahonko's motion, notice of which was dated 31 October 2006, seeking orders that: 5.1 "The State of Victoria be added to the proceedings as the main Respondents". 5.2 "The relevant proceedings (at present VID 828/2006) at the Federal Court will be joined into one proceeding against the State of Victoria". 5.3 "The original jurisdictions of the Court will be added to the current ones". 5.4 "Additional jurisdictions relevant to the matters will be added". 5.5 "Urgent monetary relief is granted to the applicant". 6. Ms Bahonko's amended notice of motion dated 27 February 2007, paragraph 4 of which was amended by her notice of motion dated 28 May 2007, seeking orders that: 6.1 "Proceedings for the Contempt of Court by the Nurses Board of Victoria, Minister for Health Bronwyn Pike, VGS Office, Russell Kennedy Lawyers & Dr Timothy Entwisle are commenced". 6.2 "Jurisdiction of the Court in the matter VID 855/06 is extended to include relevant and criminal jurisdictions". 13 In addition, on 17 May 2007, Ms Bahonko filed notice of a constitutional issue pursuant to s 78B of the Judiciary Act 1903 (Cth).


case_text: On 4 June 2004, Ms Bahonko filed an application with the Victorian Civil and Administrative Tribunal ('VCAT') for review of the NBV's decision of 24 May 2004 to suspend her registration. On 19 August 2004, on application by the NBV, VCAT decided to strike out Ms Bahonko's application: see Bahonko v Nurses Board of Victoria [2004] VCAT 1663. 26 On 17 June 2004, the NBV held a board meeting to review its decision to suspend Ms Bahonko's registration and it decided to maintain the suspension. A letter was written to Ms Bahonko explaining the NBV's decision to continue the investigations and the suspension of her registration. 27 Ms Bahonko claimed she was told by the NBV's investigator, Ms Miln, that the NBV would lift her suspension, but due to her not signing some papers, this did not occur. However, according to a letter to Ms Bahonko from Russell Kennedy on behalf of the NBV, it was stated that Ms Miln required Ms Bahonko to "cooperate in and assist with the investigation process" in order to have the suspension lifted. It was also stated that a decision to lift the suspension could only be made by the NBV.


case_text: On 25 August 2004, proceedings were filed by Ms Bahonko in the Supreme Court of Victoria seeking, amongst other things, an injunction to restrain the NBV's hearing of the complaints against Ms Bahonko scheduled for 27 September 2004. On 6 September 2004, the Supreme Court proceeding was heard and dismissed on the basis that it had no prospect of success. Ms Bahonko appealed this decision, which was dismissed, and Ms Bahonko's application for special leave to appeal in the High Court was also refused: see Bahonko v Nurses Board of Victoria [2005] HCATrans 864 (20 October 2005). 35 The Panel's formal hearing went ahead on 27 September 2004 and was not attended by Ms Bahonko though she had been invited to attend. On 14 October 2004, in its written determination, the Panel found that Ms Bahonko "had engaged in unprofessional conduct of a serious nature". It appears from the Panel's reasons for determination that a number of witnesses appeared at the hearing and the NBV was represented by counsel and Russell Kennedy solicitors. The Panel found that Ms Bahonko showed "a consistent refusal to accept direction that appears to the Panel to be deliberate, repeated and inexcusable". The Panel went on to find that her attitude towards the investigation and hearing was corroborative of the evidence "given in relation to Ms Bahonko's inability to take direction from her professional superiors". 36 The Panel determined to lift the suspension of Ms Bahonko's registration as a nurse and impose the following restrictions on her registration: 1. That Ms Bahonko work under clinical supervision for a period of six months following her return to work as a registered nurse; 2. That Ms Bahonko's employer/s provide a report or reports in writing to the Board in relation to her work performance every three months, for two years following her return to work as a registered nurse; 3. That Ms Bahonko undertake counselling with a registered psychologist, approved by the Board, for a period of two years with a therapeutic focus on improving her communication and team-building skills, and that reports on the compliance with counselling be provided by the psychologist to the Board on a confidential basis every three months; 4. That Ms Bahonko supply the Board with the name of the registered psychologist with whom she proposes to undertake counselling within one month of the date of the reasons for this determination; and 5. That Ms Bahonko successfully complete a course in medication administration, approved by the Board, of at least two days' duration.


case_text: Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct. 47 Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act. 50 However, it was always clear that the matter of the necessity for leave remained an issue. The way in which the proceeding has run its course has been a result of the number of interlocutory applications brought by all the parties which required consideration by the Court. No interlocutory application involved or proceeded on the basis that the issue of leave to file out of time was resolved in favour of Ms Bahonko. There can be no suggestion of waiver or abandonment by virtue of the conduct of the respondents to lead to the view that the extension of time issue need not be determined by me or that it did not remain a live issue for decision. Further, there is no basis to suggest that s 46PR is applicable to issues going to jurisdiction so as to permit me to consider the application for leave otherwise than in accordance with the principles set out above: see Bahonko v RMIT [2006] FCA 1325 at [20] and [70]. Further, there can be no prejudice to Ms Bahonko, as the applications for summary dismissal, which were also before me, required consideration of the merits of the case, and therefore she was anticipating having to deal with the question of the merits of her complaints, and was given ample opportunity to do so. 51 The period of delay is not a significant one. Ms Bahonko explained that she had been involved in a motor vehicle accident on 11 April 2006 and was still ill from the time the Commission gave her notice of the termination of the complaint on 1 June 2006. She submitted a number of medical certificates which stated she was unfit to work because of the accident from 11 April 2006 to 17 July 2006. 52 On the basis of those certificates, I accept that Ms Bahonko was ill at the time she received notification of the complaint until 17 June 2006. I note that the delay in filing her proceeding is relatively short, and I consider her excuse is acceptable in the circumstances. 63 The Minister referred to the decision of Weinberg J concerning a discrimination proceeding brought by Ms Bahonko against the Royal Melbourne Institute of Technology ('RMIT') and others: see Bahonko v RMIT [2006] FCA 1325. In that case, his Honour was similarly faced with an application for an extension of time, as Ms Bahonko had filed out of time, and an application for summary judgment made by one of the respondents. After his Honour considered the various claims, he refused to grant Ms Bahonko an extension of time, concluding in relation to the claims against RMIT as follows (at [86]): It would be quite wrong, in my view, to grant an extension of time in circumstances where there is a paucity of material to support claims of unlawful discrimination which are cast in sweeping, unparticularised and seemingly exaggerated terms. It is clear that the Commission acted correctly in terminating her complaints, having regard to the material that Ms Bahonko placed before it. The additional material placed before this Court in support of her application for review of the Commission's decision takes her case no further. 64 The Minister submitted that Ms Bahonko's material against the Minister was similarly sweeping, unparticularised and exaggerated and that the Commission was right to terminate and finalise her complaints against the Minister on the basis of the material before it. It was submitted that the additional material placed before this Court takes her case no further. In the alternative, it was submitted that if the material does take the case further, it is not the same or substantially the same as those in her complaints, and is therefore outside the scope of review by this Court under s 46PO(3). 116 In any event, I accept the Minister's submissions that the Minister's role in relation to the NBV was limited, in the same way Weinberg J found the role of the Minister for Education and Training was limited in Bahonko v RMIT [2006] FCA 1325. The Minister was not directly involved in the decisions and conduct of the NBV, but rather the NBV was constituted as a distinct and separate body under the Nurses Act and its decisions were its own. 117 Further, and in any event, s 18A is confined to the acts of agents and employees which, as the Minister submitted, does not extend to the NBV, as the NBV is not an employee or agent of the Minister. True it is that the Minister appoints NBV members, but this does not make the Minister liable for actions of the NBV in relation to investigating professional conduct of nurses and imposing conditions on nurses' registrations: see also Bahonko v RMIT [2006] FCA 1325 at 78. 118 Similarly, Ms Bahonko's claim that the Minister contravened s 122 of the DDA depended upon my finding that the NBV contravened s 42 of the DDA. On the basis of my finding above that there is no evidence to suggest that the NBV contravened s 42 , this claim is without merit. 119 I accept the Minister's submissions that Ms Bahonko did not make any credible claim against the Minister, and refuse her application for an extension of time to bring proceedings against the Minister.


case_text: Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct.


case_title: Bahonko v Sterjov [2007] FCA 115

case_text: As to the extension of the jurisdiction of this Court, I know of no basis upon which I can extend the jurisdiction of this Court to include criminal jurisdiction: see also Bahonko v Sterjov [2007] FCA 115 at [17] per Jessup J. Therefore, to the extent that application is made seeking to pursue such orders, it should be dismissed. 130 The applicant gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) that this proceeding involved a constitutional matter arising under the Constitution or involving its interpretation. The relevant notice was given by Ms Bahonko to the Attorneys-General of the Commonwealth and of the States, but none of the Attorneys-General made any submissions to the Court. 131 The notice of a constitutional matter, filed with the Court on 17 May 2007, does not provide much indication of the nature of the alleged constitutional matter, save from mentioning s 117 of the Constitution . In the notice, Ms Bahonko made a number of assertions, none of which amount to any proper issue arising under the Constitution or a matter involving its interpretation. Instead, she rehearsed the facts and made a number of bald assertions. There is simply no material to support any claim that any provision of the Constitution has been breached in the way asserted by Ms Bahonko.


case_text: Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act.


case_text: In relation to Ms Bahonko's submissions on the Equal Opportunity Act 1995 (Vic), it must be noted that Ms Bahonko does not seek any relief in her application under that Act. Therefore, even if the Court had jurisdiction to hear a matter arising under that Act, no such matter arises in this proceeding against the NBV or the Minister. There is certainly no evidence that the procedures required to be followed in that Act were followed. Ms Bahonko did not file a complaint with the Commission (as that term is defined in that Act) or that such complaint was referred to VCAT. Further, and in any event, this Court has no jurisdiction to review a decision of the Commission (as defined in that Act) or VCAT, which is properly the subject of the jurisdiction of the Supreme Court of Victoria: see s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); s 211 of the Equal Opportunity Act 1995 (Vic); and Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566 per Weinberg J. 96 Accordingly, I consider the complaints relevant to Ms Bahonko's application to extend time are those relating to discrimination on the basis of race, descent, ethnic origin and imputed disability under the RDA and the DDA, and I will consider these on the basis of all the material put forward concerning such discrimination. 97 In order to properly consider Ms Bahonko's claims, it is necessary to set out s 9 of the RDA, which prohibits unlawful racial discrimination in the following terms: It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.


case_text: Further, and in any event, the application is an abuse of process, because it is foredoomed to fail: see Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393. Whilst Ms Bahonko is certainly aggrieved by a sequence of circumstances, I can find no basis to support any allegation of unlawful discrimination, and the respondents should not be further vexed by unjustifiable proceedings and forced to incur unnecessary costs. 126 Ms Bahonko's claims against Ms Saunders' conduct at the directions hearing on 1 September 2006 before Ryan J are misconceived. There is no evidence to suggest that Ms Saunders has been involved in "deception/fraud" or "obstruction of justice, trickery, frauds, making false statements" on 1 September 2006. There is nothing to suggest that the actions of Ms Saunders were taken other than in the interests of her client and in accordance with her duties to the Court. Accordingly, the orders sought should not be made and the motion will be dismissed. 127 Ms Bahonko made allegations of contempt of this Court against the NBV, the Minister, the Victorian Government Solicitors, Russell Kennedy and Dr Entwisle by way of various motions. She also filed a notice of motion dated 28 May 2007 with an accompanying statement of charge. Her claims focused on their involvement generally in these proceedings, including the bringing of the summary dismissal applications, their management of the evidence in this proceeding, their perceived conflicts of interest, and their applications seeking to appoint a guardian. The crux of her submission was that their behaviour amounted to protection of the primary offenders, and was generally misleading to the Court.


case_text: In support of that contention the applicant relied primarily upon the judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494. In that case, Mr Johnson, a citizen of New Zealand came to Australia in 1981 at the age of six. He eventually acquired a lengthy criminal record. On 19 December 2002 the Minister purported to cancel his "special category visa" under s 501(2) of the Act on the basis that it was reasonably suspected that he did not pass the "character test". Mr Johnson submitted that he held an "absorbed person visa" pursuant to s 34 , and not a "special category visa". He submitted that the decision of the Minister to cancel a non-existent visa was therefore affected by jurisdictional error. 29 French J accepted that contention. He held that the Minister's decision to purportedly cancel a visa not held by the applicant was a nullity. 31 French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution . Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 35 It was in the light of these authorities that French J, in Johnson , identified (at [46]) the factors relevant to whether a person has been absorbed into the Australian community (and has therefore "ceased to be an immigrant") as including the following: "1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia the join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record." 36 French J noted that this list of factors was plainly not exhaustive. Rather, he said it illustrated "the multi-dimensional character" of the judgment involved. In his Honour's view, all the relevant factors, other than the time that had elapsed since the Johnson family's move to Australia, pointed strongly to the proposition that the family had become part of the Australian community as at 2 April 1984. Although Mr Johnson's criminal record was extensive, it only began in 1991. Accordingly, it had little or no bearing upon whether he had ceased to be an immigrant by April 1984. 37 It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act , and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled.


case_text: His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.


case_title: R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518


case_title: Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36


case_title: O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261


case_title: Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533


case_title: R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168