case_text: Section 5 of the Act makes provision for the role of the ABA. In Community Television Sydney Ltd v Australian Broadcasting Authority and Another [2004] FCA 443 ; (2004) 136 FCR 316 Sackville J at [317] observed that s 5(1)(b)(i) of the Act: '... required the Authority to use its functions and powers in a manner which, in its opinion, "will produce regulatory arrangements that are stable and predictable."' 34 The ABA submits that judicial review proceedings under the ADJR Act are not ' at large ' in relation to the time in which an application must be brought. I consider that the time limits provided by the ADJR Act further the object of certainty and reliability of administrative decisions which are necessary for stable and predictable regulatory arrangements. As such, they contribute to the efficiency of the broadcasting industry. 35 The failure of PCR to communicate in any way with GCB for more than 12 months following the date of the grant of the licence or to warn it of an impending challenge has led GCB to believe that no challenge would be made after the 28 period had expired. Further, the reasons advanced by Mr Lindberg for the failure to lodge the application even within a reasonable time after 22 February 2005 (being the expiration of the 28 day period), is not satisfactorily explained. PCR approached the issue in a leisurely manner, not foreshadowing its possible challenge. There was nothing in the advice received by Mr Lindberg in February 2005 which suggested that an open ended period would be allowed and considered appropriate by the Court. Further he was aware that a time limit for the commencement of proceedings existed. The claimed lack of funds is inadequate to explain way at least a warning to GCB and the ABA of a possible challenge could not have been given. 55 PCR submits that most of the letters of support relied upon by GCB related to the service provided by NCB which the ABA found was different to that proposed by GCB, but that the ABA took all of the letters into account in its finding that GCB had 2080 letters of support for its proposed service within the licence area. Accordingly, GCB claims that the Decision was made on the erroneous premise that the ' support ' was for GCB, when it was support from members of NCB. This ground relies upon the premise that the term ' proposed service ' must refer to the particular programming proposed by a particular applicant for a licence as discussed by Sackville J in Community Television Sydney Ltd v Australian Broadcasting Authority at [50]. 56 PCR claims that at common law, the ABA's misconstruction of the statute was an error of law and a jurisdictional error because it failed to take into account a relevant consideration. Additionally, PCR submits that there has been a breach of s 5(1)(d),(f),(j) of the ADJR Act. 79 I am satisfied that the particular programs proposed were those intended by GCB and that the ABA correctly directed itself to the requirements of s 84(2)(a) when it assessed the ' proposed service ' of GCB. Whilst Sackville J in Community Television Sydney Pty Ltd v ABA observed that the s 84(2) ' required the Authority to take the specified matters into account and give each of them weight as a fundamental element in making the determination. ' (see [5]), it would be wrong to construe the ABA's decision in relation to the proposed service as having been determined merely upon the letters of support. Accordingly I reject the first ground of challenge. 80 Section 3 of ABA Form 32 identifies the matters to be considered by the ABA in its assessment of the several matters under s 84 of the Act. One of those matters is membership and the extent to which the programming would be relevant to the community. Section 3 includes the following: 'The reference to 'the community within the licence area' means the whole of the community within a licence area. That is, the reference is not limited to the community interest which the applicant proposes to serve. This does not necessarily mean that an applicant which proposes to serve a specific community interest will be regarded as meeting the needs of the community to a lesser extent than an applicant which proposes to serve the general community. The assessment of the extent to which the proposed service would meet the needs of the community will be affected by the nature and diversity of the interests of that community and the nature and diversity of the other broadcasting services available within the licence area catering to those interests.' 81 The ABA accepted that GCB had a relatively large membership base and specifically referred to the 2080 letters. The ABA was entitled to have regard to the fact that such significant support, although mainly based on the programs provided by NCB, was equally applicable to such programs in the Gosford area. The ABA was satisfied that ' a full-time Christian broadcasting service of the kind proposed by GCB will add to the diversity of services in the licence area and meet the needs of Christians in the licence area community not provided for by other broadcasters. '


case_outcome: referred to

case_text: PCR claims that such finding was critical in the chain of reasoning which led to ABA's decision, and relies upon the decision of the Full Court in Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212 (especially at 220-221). It submits that there was no evidence upon which ABA could have reached its decision and it is therefore invalid according to the principles referred to in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33 ; (1990) 170 CLR 321 and in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24.


case_text: The merits of the substantive application are to be taken into consideration (see Hunter Valley Developments Pty Ltd at 349). In these proceedings, the Court considers that PCR's claims are arguable. However, PCR's application must be considered with reference to all parties who might be affected and the question of prejudice being occasioned to GCB is a matter for the Court's consideration: see Hunter Valley Developments Pty Ltd at 349; Doyle v Chief of General Staff (1982) 42 ALR 283 at 287; Lovett v Le Gall (1975) 10 SASR 479 at 485; Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 533-534.


case_text: PCR submits that the approach by the ABA relating to ' needs' was erroneous. It submits that the brief analysis as to the extent to which ' needs' within the Gosford community would be met by the services proposed to be provided by GCB was meaningless and that no real consideration has been provided of the statutory requirement of s 84(2)(a) of the Act. PCR claims that the ABA mistakenly considered letters of support as being relevant to the concept of ' needs ', when in fact they did not address such issue. As such there is both common law jurisdictional error and a breach of s 5(1)(e) and 5(2)(b) of the ADJR Act. PCR relies upon the principles referred to in Elias v Commissioner of Taxation [2002] FCA 845 ; (2002) 123 FCR 499 at [62] .


case_outcome: cited

case_text: In Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; [2000] 204 CLR 82 Gaudron and Gummow JJ referred to circumstances which might prevent the Court exercising its discretion in favour of granting prerogative relief and at [57] quoted Lord Denning in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 320 (CA) where His Lordship said of a plaintiff who delays commencing proceedings: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing (145). If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief (146).'


case_text: In considering the approach to be taken by the Court to the Decision of the ABA, the Court must be satisfied that the ABA's Reasons considered the relevant factual matters required by s 84(2) of the Act, and that the ABA did not take into account irrelevant considerations. The Court must also be satisfied that the power provided to the ABA has been exercised reasonably: see Kruger and Others v Commonwealth of Australia [1997] HCA 27 ; (1997) 190 CLR 1 at 36 per Brennan CJ. The process adopted by the ABA in its application of s 84(2) must be logical. In Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161, Spigelman CJ said (at 174-175): 'In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the court should approach the construction of the statute or regulation with the presumption that the Parliament or the author of the regulation intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words.' For similar observations, see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at [28] ; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] .


case_text: The principles to be applied in relation to an application for extension of time are conveniently referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and in Hickey and Others v Australian Telecommunications Commission (1983) 72 FLR 291.


case_text: The principles to be applied in relation to an application for extension of time are conveniently referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and in Hickey and Others v Australian Telecommunications Commission (1983) 72 FLR 291. 28 The merits of the substantive application are to be taken into consideration (see Hunter Valley Developments Pty Ltd at 349). In these proceedings, the Court considers that PCR's claims are arguable. However, PCR's application must be considered with reference to all parties who might be affected and the question of prejudice being occasioned to GCB is a matter for the Court's consideration: see Hunter Valley Developments Pty Ltd at 349; Doyle v Chief of General Staff (1982) 42 ALR 283 at 287; Lovett v Le Gall (1975) 10 SASR 479 at 485; Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 533-534.


case_title: Kruger and Others v Commonwealth of Australia [1997] HCA 27 ; (1997) 190 CLR 1


case_title: Lovett v Le Gall (1975) 10 SASR 479


case_text: PCR asks the Court to exercise its discretion to grant an extension of time. In exercising its discretion, the Court must consider interests beyond those of an applicant. Whilst s 11 of the ADJR Act does not specifically impose a burden of proof upon an applicant for the extension of time, an applicant is required to show why ' in all the circumstances, the extension of time should be granted ': see Lucic v Nolan and Others (1982) 45 ALR 411 at 416. Further, the ' prescribed period ' of 28 days is not to be ignored: see Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550.


case_outcome: followed

case_title: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_title: Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another [2002] HCA 32 ; (2002) 210 CLR 222

case_text: If the Court is satisfied that the ABA has misdirected itself in law or has failed to consider matters that it was required to consider, or taken irrelevant matters into consideration, its decision will have miscarried: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 (at 118-119 per Gibbs J). However, the failure of a decision maker to take into account an insignificant matter may not warrant a Court setting aside the decision: see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors at 40. If the Court should conclude that there is inadequate factual material to support a finding by the ABA, it could lead to the inference that the Tribunal has applied a wrong test or has not otherwise satisfied the requisite matters which it was obliged to consider under s 84(2) of the Act: see The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120. In Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another [2002] HCA 32 ; [2002] 210 CLR 222, Gaudron and McHugh JJ said at page 241: 'Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.'


case_text: Identifying a wrong issue or asking a wrong question may be indicative of jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. 74 The above principles form the basis of the approach to be taken when considering challenges made under the ADJR Act and at common law. 75 The Reasons show that the ABA considered the type of service that would be provided by GCB. It found that some of the programs to be broadcast would be the same as those broadcast by NCB being programs directed at furthering Christian beliefs. As was explained in oral evidence by John Ian Marks, general manager of NCB, the term Rhema which is used in the trading names of both NCB and GCB, is derived from the Greek word meaning the s poken word and is used to connote the furtherance of the Christian religion. The ABA referred to the information provided by GCB that community needs would be met through a range of 'spoken word programming', such as broadcasts by a Christian psychologist on relevant issues, including raising children, building better marriages and ' hope for the seriously ill '. Accordingly, it was apparent that the type of programs broadcast by NCB trading as Rhema FM Newcastle would not be dissimilar to those proposed for GCB trading as Rhema Gosford. However, the ABA found that local content would be incorporated in GCB's programs.


case_text: In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and ' an important factor in the exercise of the court's decision to refuse relief... ' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief. ' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888 . The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'


case_title: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535


case_title: Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295


case_title: Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; [2000] 204 CLR 82


case_title: Silkman v Kendall [1982] 1 NSWLR 133

case_text: PCR submits that community needs means ' the reasonable demands or expectations of the public '; see Silkman v Kendall [1982] 1 NSWLR 133 at 140; Toohey v Taylor [1983] 1 NSWLR 743 at 748-749. By analogy, it is submitted that such principle applies to the question of needs as contained in s 84(2)(a) of the Act.


case_text: PCR submits that the assertion of the 2080 letters in support by GCB was in reality no more than speculation, and that what was required was evidence which logically showed the existence of the facts relevant to the issue to be determined: see Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10. 64 PCR submits that ABA's findings were based upon the number of members of GCB and that at the relevant time GCB did not have 1078 members as claimed. In fact, approximately 1000 of those members belonged to NCB. Accordingly, PCR claims that there was no probative value in the finding by the ABA relating to the number of members of GCB.


case_title: The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited [1953] HCA 22 ; (1953) 88 CLR 100


case_text: The interests of the ABA are to be considered also. Consistent with the principles referred to in The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others [1980] HCA 13 ; (1980) 144 CLR 13, the ABA has adopted a neutral position in these proceedings. Nevertheless, in relation to the application for the extension of time it has raised matters relating to the public interest which the Court will consider. 32 The ABA refers to the statutory objects of the Act as contained in s 3 thereof. In summary, those objects included the provision of a regulatory environment 'that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs...'


case_title: Toohey v Taylor [1983] 1 NSWLR 743


case_title: Wedesweiller and Others v Cole and Others (1983) 47 ALR 528


case_text: On 23 December 2002 the licence was awarded by the ABA to GCB. PCR promptly challenged the decision of the ABA to grant the licence to GCB and brought proceedings under the ADJR Act in this Court. On 31 January 2003 Wilcox J determined that the award of the licence to GCB resulted from denial of natural justice and set aside the decision of the ABA: see Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Another [2003] FCA 33 ; [2003] 125 FCR 560. 8 On 19 March 2004 the ABA called for applications for the licence in respect of the licence area by advertisement published in the Central Coast Express, and by 16 April 2004 the ABA had received applications from three applicants, namely PCR, GCB and Radio Yesteryear. 9 On 6 May 2004 copies of each application was made available for public inspection on the ABA website and in hard copy at Gosford City Public Library. On 19 April 2004 the ABA wrote to each of the licence applicants advising them of the other applications and informing them that the general public was entitled to make submissions on the applications until 14 May 2004. The ABA duly received submissions and placed the submissions on its website for public inspection.


case_text: Buckley J's explanation of the meaning of 'reconstruction' was adopted by Pennycuick J in Brooklands Selangor Holdings Ltd v Inland Revenue Commissioners [1970] 1 WLR 429 at 445, and by Plowman J in Baytrust Holdings Ltd v Inland Revenue Commissioners [1971] 1 WLR 1333 at 1352-3. Both of these cases concerned the construction of s 55 of the Finance Act 1927 (UK).


case_title: Baytrust Holdings Ltd v Inland Revenue Commissioners [1971] 1 WLR 1333


case_outcome: discussed

case_text: In Citizens and Graziers' Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances Ltd [1934] HCA 22 ; (1934) 51 CLR 422, the High Court had to consider whether particular circumstances constituted an 'amalgamation' of two companies. Dixon J discussed the concept of the amalgamation of two companies at 457-8. His Honour said: 'The union of shareholders, which amalgamation involves, is, of course, not concerned with the members of the combining corporations as persons. It is the reorganization of share capital that matters. The replacement of two separate systems of share capital by one appears to be required before a union of two companies limited by shares can justly be called an amalgamation of the companies. In the process of reorganization, classes or divisions of shares, or amount of share capital, in one or other or both of the old companies may find no representation in the one system of capital which emerges. But the substantial result must be to reduce for practical purposes two or more organizations of capital to one, and two or more incorporated companies to one. The amalgamation to which the clause in the memorandum refers is not a mere combination of businesses separately conducted, but an amalgamation of companies. There is no context to enlarge the meaning of the expression. To accomplish such an amalgamation, it seems necessary, either to consolidate the constituent elements of the old companies into a new one, or to merge in one of the old companies the constituent elements of the other. Possibly a transaction may be an amalgamation although the corporate existence of the consolidating companies, or of the merged company, may be continued for some special and definite purpose. But the continuance of two corporations under separate control, organized with their separate systems of share capital and capable of independent activities, appears to me inconsistent with an amalgamation of more than their existing enterprises.' 76 I agree with Mr Oakes that a restrictive interpretation should not be placed on either the term 'reconstruction' or the term 'amalgamation'. I also accept his submission that the approach should be simply to inquire whether the circumstances of a particular case fall within one or the other or both of the words, without first attempting to delineate their respective boundaries of meaning.


case_text: In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 200 CLR 1, the High Court held unanimously that the word 'liabilities' in s 14 of the Stevedoring Industry Acts (Termination) Act 1977 (Cth), which provided for a vesting in the Stevedoring Industry Finance Committee of liabilities of the Australian Stevedoring Industry Authority, operated to vest in the Committee the liability of the Authority in respect of a breach of its duty of care to safeguard wharf labourers against exposure to asbestos fibres, even though the injury was suffered after the vesting under s 14 took place. Gleeson CJ observed that depending on the context, 'liability' can include contingent or potential liability (his Honour cited Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD)). The Chief Justice noted (at 14) that the legislation abolished the Authority which no longer had the capacity to meet any claims upon it, and said that there was no good reason to distinguish between complete and inchoate causes of action, where the Authority had committed a breach of a legal duty.


case_outcome: distinguished

case_text: The second issue to which I referred, can best be considered by reference to Housing Guarantee Fund Ltd v Yusef [1991] 2 VR 17 (' HGFL v Yusef ').


case_title: In re Landau (a Bankrupt) [1998] Ch 223

case_text: Support for the view expressed in the preceding paragraph is found in a line of authority concerning contractual promises not to assign real or personal property without consent. It is held that such promises do not extend to assignments effected by operation of law upon the making of an order of the court following an adjudication, even if it was the person who promised not to assign who applied for the order: In re Riggs; ex parte Lovell [1901] 2 KB 16; Marsh v Gilbert [1980] 2 EGLR 44; In re Landau (a Bankrupt) [1998] Ch 223; Krasner v Dennison [2001] Ch 76.


case_title: In re Riggs; ex parte Lovell [1901] 2 KB 16


case_text: It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.


case_text: The expressions 'reconstruction' and 'amalgamation' were considered in In re South African Supply and Cold Storage Co [1904] 2 Ch 268 (' South African Supply '). In that case, the words occurred in the memoranda of association of two companies. The questions before the Court related to the rights of preference shareholders and debenture stockholders on the winding up of the two companies, and the issue was whether, in each case, the winding up was 'for the purpose of reconstruction or amalgamation'. 73 Buckley J observed that neither word had any definite legal meaning; that each was a commercial and not a legal term; and that even as a commercial term neither bore an exact definite meaning. His Lordship said that it was necessary, in each case, to determine whether, in the minds of commercial people, the transaction was comprehended by the term 'reconstruction' or 'amalgamation' (at 281-2). I need not relate the facts. His Lordship stated (at 286-7): 'What does "reconstruction" mean? To my mind it means this. An undertaking of some definite kind is being carried on, and the conclusion is arrived at that it is not desirable to kill that undertaking, but that it is desirable to preserve it in some form, and to do so, not by selling it to an outsider who shall carry it on that would be a mere sale but in some altered form to continue the undertaking in such a manner as that the persons now carrying it on will substantially continue to carry it on. It involves, I think, that substantially the same business shall be carried on and substantially the same persons shall carry it on. But it does not involve that all the assets shall pass to the new company or resuscitated company, or that all the shareholders of the old company shall be shareholders in the new company or resuscitated company. Substantially the business and the persons interested must be the same. ... Now what is an amalgamation? An amalgamation involves, I think, a different idea. There you must have the rolling, somehow or other, of two concerns into one. You must weld two things together and arrive at an amalgam a blending of two undertakings. It does not necessarily follow that the whole of the two undertakings should pass substantially they must pass nor need all the corporators be parties, although substantially all must be parties. The difference between reconstruction and amalgamation is that in the latter is involved the blending of two concerns one with the other, but not merely the continuance of one concern. An amalgamation may take place, it seems to me, either by the transfer of undertakings A and B to a new corporation, C, or by the continuance of A and B by B upon terms that the shareholders of A shall become shareholders in B. It is not necessary that you should have a new company. You may have a continuance of one of the two companies upon the terms that the undertakings of both corporations shall substantially be merged in one corporation only.' 77 In my view, the arrangement as proposed is a reconstruction. The whole of the undertaking, property and liabilities of Stork ICM is to be transferred to and vest in Stork FSA. These circumstances fall within Buckley J's description of a 'reconstruction' in South African Supply . Although the run off activity of Stork ICM can hardly be called the 'carrying on' of an undertaking, that business-related activity will be taken over by Stork FSA, and will continue to be, indirectly, an activity of the parent company, Stork NV, as it is at present. It will, however, be an activity distinct from the trading activity of Stork FSA. Stork FSA will receive particulars of claims made by the potential claimants, and will deal with insurers and CMS in relation to them. That is to say, Stork FSA will continue to do what Stork ICM does now, but its activity in this respect will not form part of its trading activity. 78 To my mind, the word 'amalgamation' does not so easily lend itself to the proposed arrangement, because there will be no 'blending' of the two activities, even though they will both be carried on by Stork FSA. 79 Section 413 of the Act has its genesis in s 54 of the Companies Act 1928 (UK) which did not come into force, although the provision later appeared as s 154 of the Companies Act 1929 (UK). The present English provision is s 427 of the Companies Act 1985 (UK).


case_title: In re Star Tea Co Ltd [1930] WN 4


case_title: Krasner v Dennison [2001] Ch 76


case_title: Marsh v Gilbert [1980] 2 EGLR 44


case_text: In Nokes v Doncaster Amalgamated Collieries Limited [1940] AC 1014 (' Nokes ') it was held that the provision applied only to rights and liabilities that were capable of being assigned under the general law. ASIC raised for my consideration the question whether the 'no assignment without consent' provision meant that Stork ICM's right of insurance indemnity could not be transferred under s 413. I discuss this question later, but since Nokes applies to 'liabilities' as well as to 'property', it is convenient to discuss the case here. 83 In Nokes , approval of a scheme of amalgamation was granted under s 153 of the Companies Act 1929 (UK) and an order was made under s 154 for the transfer of all the property and liabilities of the companies that were being amalgamated to a new company. The issue was whether a contract of service between an employee and a 'transferor' company became, by the operation of the order, a contract of service between the employee and the 'transferee' company. By majority, the House of Lords held that it did not. Section 154(1) of that Act was, relevantly, similar to s 413(1) of the Act. However, the definitions of 'property' and 'liabilities' in subs (4) of the English s 154 were different from the definitions of those expressions now found in subs (4) of the Australian s 413. Subsection (4) of the English s 154 provided: 'In this section the expression "property" includes property, rights and powers of every description, and the expression "liabilities" includes duties.' Subsection (4) of the Australian s 413 was set out at [66] above. 84 The facts in Nokes were that after the making of the order, Mr Nokes absented himself from work in circumstances that would have made him liable under s 4 of the Employers and Workmen Act 1875 (UK) if he could be regarded as employed under a contract of service with the transferee company. In holding that he could not be, the majority of the House of Lords held that s 154(1) applied only to rights and liabilities that were capable of being assigned under the general law, and that the mutual contractual obligations of employer and employee were not. A contract of service can not be bought or sold or given away. Under the general law, a new contract of service would have had to be entered into with the new employer, and s 154 did not overcome that position. Lord Romer dissented. 85 In Re "L" Hotel Co Ltd & Langham Hotel Co Ltd [1946] 1 All ER 319, Uthwatt J said (at 320) that he saw the principle of Nokes as limiting the statutory provision to 'only such property as could be transferred by an act inter partes '. 86 While s 134(4) of the Companies Act 1936 (NSW) and s 183(5) of the Companies Act 1961 (NSW) both defined 'property' and 'liabilities' in terms in substance indistinguishable from those of the English s 154(4), new expanded definitions of those terms were introduced into the Australian legislation in 1981 as part of s 317 of the Companies Code , and they have remained unchanged since (see [66] above). They make it clear that 'duties that are of a personal character or are incapable under the general law of being performed vicariously' are included in the notion of 'liabilities', and that 'rights and powers that are of a personal character and are incapable under the general law of being assigned or performed vicariously' are included in the notion of 'property'. The researches of counsel have not discovered the reason for the expansion of the definitions, but it may have been to overcome the holding in Nokes . 87 The Scheme provides in cl 4 for Stork ICM's property and liabilities to be transferred to, and to be vested in or become the property and liabilities of, Stork FSA, without the need for any further act or deed. Clause 1.1 defines 'liabilities' to mean: 'all liabilities however arising and whether present, unascertained, immediate, future or contingent, including any "liabilities" (within the meaning in subsection 413(4) of the Corporations Act ) and any Future Proceedings.' The expression 'Future Proceedings' is defined in cl 1.1 of the Scheme to mean: 'legal proceedings which have not commenced, but for which the cause of action has accrued or the events that lead to a cause of action accruing have occurred.' However, it was agreed that in any order to be made, this definition should be varied in the interests of the potential claimants so as to read: 'legal proceedings which have not commenced, but for which the cause of action has accrued or the injury or other event that may lead to a cause of action accruing (including, without limitation, exposure to asbestos dust) has occurred, or will occur in the future.' 88 Stork ICM's liability to potential claimants is not a 'duty' within s 413(4) 's inclusory definition of 'liabilities'. However, in my opinion, it falls within the word 'liabilities' in s 413(4) according to the ordinary meaning of the term in any event.


case_text: If a claimant should wish to sue Stork ICM, and it is contended, for example, that Zurich was the insurer at the relevant time, the claimant will be entitled to apply under s 601AH(2) of the Act for the Court to order that ASIC reinstate the registration of Stork ICM. The Court would make such an order if it was satisfied that it was just to do so. It is true that a claimant in such a case would suffer the disadvantage of having to make such an application, but it seems to me that the likelihood of this eventuating is small, and that it would be very likely indeed that the order would be made, and probably on the basis that Stork FSA or Stork NV or, perhaps after its reinstatement, Stork ICM, pay the potential claimants' costs of the application since its purpose would be to allow the dispute as to the identity of Stork ICM's insurer at the relevant time to be resolved. (I agree, incidentally, with senior counsel for ASIC, that s 601AG would be of doubtful utility, because that section would operate only in a case where the facts showed that Stork ICM had a liability to the claimant immediately before the deregistration; see Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331 ; (2003) 59 NSWLR 14.) 124 Subject to an amendment in the definition of 'Future Proceedings' in the Scheme, the Scheme should be approved, with an alteration so as to exclude, pending any further order under s 413, any Excepted Liability, and any right of indemnity under an Excepted Policy, in each case as described above. I certify that the preceding one-hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 16 February 2007 Counsel for Plaintiff and Defendant:: Mr M B Oakes SC Solicitors for the Plaintiff and Defendant: McCullough Robertson Counsel for Australian Securities and Investments Commission, appearing amici curiae : Mr P Whitford SC and Ms V McWilliam Counsel appearing amicus curiae in the interests of potential claimants: Ms L McCallum SC Dates of Hearing: 14, 20, 28 September; 20 October; 7, 15, 24 November; 7, 14 December 2006 Date of Judgment: 14 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1849.html


case_title: Re Clydesdale Bank Ltd [1950] SC 30


case_title: Re AGL Sydney Ltd (1994) 13 ACSR 597


case_text: It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme. 70 It is not necessary that Stork FSA be a party to the Scheme or propose a scheme, but it has been appropriately joined as a defendant: RVIB , esp at [17]. 71 The arrangement is proposed for the purposes of, and in connection with, a scheme by which, generally speaking, one wholly owned subsidiary is to be denuded of its property and liabilities, which are to be vested in another wholly owned subsidiary.


case_title: SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470


case_title: Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD)


case_outcome: considered

case_text: 601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ...


case_title: Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496


case_title: Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121


case_outcome: applied

case_text: consequence, as noted by Keane JA in Mier at 350 1, is that s 601FC(2) does not necessarily apply to all property held by a responsible entity or used in the operation of the scheme: see also Hance v Commissioner of Taxation [2008] FCAFC 196 , [95] [100]. It operates in connection with scheme property as that term is defined in s 9 of the Act.


case_text: 601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ... As Keane JA went on to say in Mier at 350: It follows that, if property is to be considered "scheme property", the property in question must have been contributed to the scheme or must have been obtained in connection with such contributions. The absence of any such connection would make it doubtful that the property was really part of, or subject to, the scheme. The consequence, as noted by Keane JA in Mier at 350 1, is that s 601FC(2) does not necessarily apply to all property held by a responsible entity or used in the operation of the scheme: see also Hance v Commissioner of Taxation [2008] FCAFC 196 , [95] [100]. It operates in connection with scheme property as that term is defined in s 9 of the Act.


case_text: respondents further contended that by reason of the nature of the transaction, the circumstances of the relevant parties and their relationship which I have described above, the Charged Property was held on trust for the scheme: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 , 115; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491, 503; Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331, 441. In light of the earlier reasoning, it is unnecessary to decide this issue.


case_title: Re Australian Elizabethan Theatre Trust [1991] FCA 344 ; (1991) 30 FCR 491


case_title: Re Investa Properties Ltd [2001] NSWSC 1089 ; (2001) 187 ALR 462

case_text: 5C.2 of the Act provides the legislative framework for managed investment schemes. One of the critical provisions is s 601FC(2). "That section declares in unequivocal terms that the responsible entity of a registered management investment scheme 'holds scheme property on trust for scheme members'": Re Investa Properties Ltd (2001) [2001] NSWSC 1089 ; 187 ALR 462 , 465.


case_title: Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331


case_title: Wilhelm v McKay [2005] FCA 792

case_text: On 22 November 2004, the applicants sought leave to amend the primary application in accordance with a formulation of the decisions and conduct sought to be reviewed, reflected in a document described as Exhibit 'SWS2' to an affidavit of Mr Sharry. The applicants also sought discovery of particular documents. Those applications together with a Notice of Objection to Competency filed on behalf of Ms Jilani were heard by Cooper J on 17 December 2004. Following his Honour's untimely death, the parties agreed that the matters ought to be disposed of on the papers and Finkelstein J determined the various matters and published reasons in support of proposed orders on 15 June 2005 ( Wilhelm v McKay [2005] FCA 792). His Honour, perhaps unfortunately, in deciding the application on the papers did not have the benefit of reflection on the issues afforded by oral argument. On 23 June 2005, the following orders were entered, namely, the applicants be given leave to amend the primary application in terms of the Exhibit 'SWS2' (Order 1); the second respondent (Ms Jilani) make discovery of nominated documents (Order 2); the second respondent's objection to competency is dismissed (Order 3); the second respondent pay 85% of the applicants' costs of the motion (Order 4); and leave be granted to appeal with a stay of the earlier orders pending appeal. The second respondent caused a Notice of Appeal to be filed and on 20 December 2005, the Full Court allowed an appeal and set aside orders 1, 2 and 4 of the orders made by Finkelstein J ( Jilani v Wilhelm [2005] FCAFC 269 ; (2005 2006) [2005] FCAFC 269 ; 148 FCR 255 per Dowsett, Jacobson and Greenwood JJ). 46 The applicants contend that in formulating the now proposed amendments to the primary Application, the applicants have taken account of the observations of Finkelstein J ( Wilhelm v McKay (supra [24])) and the Full Court ( Jilani v Wilhelm (supra [24])). The Full Court in determining the appeal from the orders and judgment of Finkelstein J reached the following conclusions. 54 At [10] ( Wilhelm v McKay (supra)), Finkelstein J considered the possibility of a challenge to the 'decisions to obtain and issue the warrant' on the ground of bad faith or unfairness and after dealing with the notion that the investigation had come to an end by 7 July 2004 as a matter of inference arising out of the Deed, said this: '10. There is, I suppose, another possibility. It is that the ATO only agreed to give back the documents to achieve a settlement of the actions but it always intended to arrange for the search warrant to avoid handing over the documents. What effect this would have on the terms of settlement is not a matter that will arise on this application. But, if this is what really happened, it may be the basis of a challenge to the decisions to obtain and issue the warrant on the ground of bad faith or unfairness as suggested in In Re Preston [1985] AC 835. See also Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542'.


case_text: Moreover, the Full Court characterised the Deed of Settlement as a compromise of the civil claims for recovery of the unpaid tax instalments and observed at [76]: 'There was not, nor could there be, any suggestion that the payment of $600,000 for the compromise of the civil claims released Mr Dempsey and Mr Wilhelm from the possibility of criminal prosecution: R v Rogerson [1992] HCA 25 ; (1992) 174 CLR 268 at 275 276. Yet the suggestion in ground 1(b), albeit not expressly made, that the payment of the settlement sum and the entitlement to collect the documents, brought to an end the possibility of an investigation into the possible criminal consequences of the applicants' conduct is an essential premise underlying the obligation. In our view, it is unsupportable and should not have been allowed to stand.'


case_title: Re Preston [1985] AC 835

case_text: At [10] ( Wilhelm v McKay (supra)), Finkelstein J considered the possibility of a challenge to the 'decisions to obtain and issue the warrant' on the ground of bad faith or unfairness and after dealing with the notion that the investigation had come to an end by 7 July 2004 as a matter of inference arising out of the Deed, said this: '10. There is, I suppose, another possibility. It is that the ATO only agreed to give back the documents to achieve a settlement of the actions but it always intended to arrange for the search warrant to avoid handing over the documents. What effect this would have on the terms of settlement is not a matter that will arise on this application. But, if this is what really happened, it may be the basis of a challenge to the decisions to obtain and issue the warrant on the ground of bad faith or unfairness as suggested in In Re Preston [1985] AC 835. See also Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542'.


case_text: The Full Court observed that his Honour's observation to that effect could not stand in the face of well established principle that 'allegations of fraud must be made specifically; see Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 285'. The Full Court further said this at [100] and [101]: '100. In the absence of any allegation in the application of want of good faith, we do not see how the matter could proceed to trial on that issue. 101. In any event, it is one thing to assert trickery or misrepresentation in relation to the execution of the Deed of Settlement. It is quite another to suggest that the exercise of the power to seek the issue of a search warrant in aid of the power to investigate possible criminal offences is similarly tainted.' 56 At paragraphs [3] and [4] of the amended application before Finkelstein J, the applicants sought to review the 'conduct' of Ms Jilani in applying for and executing the warrant and in delivering up the documents to officers of the ATO. The Full Court concluded that the proposed amendments addressing the conduct of Ms Jilani failed to recognise that 'conduct' for the purposes of s 6 of the A D J R Act focuses upon procedural questions whereas the complaint of the applicants was that the process of decision-making itself was flawed and erroneous. Secondly, the conduct in question was not conduct for the purpose of making a decision within the meaning of the Act.


case_text: The applicants challenge this decision on grounds of statutory administrative review and pursuant to s 39B of the Judiciary Act . As to the A D J R Act, Ground 1A relies upon error of law (s 5(1)(f)); Ground 2, an improper exercise of power (s 5(1)(e)); Ground 3, an abuse of power (s 5(2)(j)); and Ground 4, jurisdictional error (s 5(1)(c)). As to the principles at common law upon which the Court will exercise supervisory review of administrative decisions of the Executive, administrative tribunals or officers of the Commonwealth, for the purposes of exercising a jurisdiction under s 39B of the Judiciary Act : see Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC at 171, per Lord Reid, approved in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 366 and 367 per Deane J; and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489 [25] . The applicants contend for three 'decisions' susceptible of review.


case_title: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163


case_title: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476


case_text: It seems to me that what follows from these observations is that the challenged decision-maker must be shown to have reached an operative resolution or determination as the emanation of a deliberative process, having the character or quality of finality. This view is consistent with the approach adopted, on this question, in Salerno v National Crime Authority (1997) 75 FCR 133 at 138 per von Doussa, Drummond and Mansfield JJ. See also Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230 , per Finn J at [65] and [66]. I adhere to the views I expressed in reviewing the authorities in Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88 at [70] to [101].


case_title: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230


case_title: Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88


case_text: See also on the issue of impliedly required decisions, Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 per Black CJ at 156. 69 Although it is clear that a decision to issue the warrant is susceptible of review for the purposes of the A D J R Act as the decision is expressly authorised by s 3E of the Crimes Act and affects legal rights and obligations of the applicants, the steps taken by Mr Bell neither find their express authority in the section nor materially affect the rights and obligations of the applicants. 70 Accordingly, the decision of Mr Bell is not susceptible of review for the purposes of the A D J R Act.


case_text: Part IVA confers powers on the Commissioner to form ' opinions ' concerning a 'scheme' (as defined) to reduce income tax which a taxpayer has entered into or carried out for the purpose of obtaining a tax benefit (s 177, particularly s 177D and 177F; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168) and a power to make determinations (s 177F) to include amounts in the assessable income of the taxpayer or disallow deductions, among other determinations. These expressly conferred powers (among other express powers) enable, properly exercised, the Commissioner to examine and investigate sources of information, facts, and circumstances that enable conclusions to be reached as to whether a taxpayer has complied with the tax law; whether the Commissioner's assessment of the tax payable by the taxpayer properly and accurately reflects the amount of the taxpayers liability to taxation under Part III of the ITAA 36; and whether a basis subsists for forming opinions, making determinations or exercising discretions as to any relevant matter for the purposes of the ITAA 36, the ITAA 97 or the TAA. 100 In addition to expressly conferred powers, the Commissioner is charged with the general administration of the tax law. Apart from s 8 of the ITAA 36, s 3A of the TAA confers the general administration of the TAA on the Commissioner. The Commissioner must each year provide a report to the Minister on the working of each Act (inclusively defined) s 14 ITAA 36; s 3B TAA. Each Act imposes general secrecy requirements upon ATO officers concerning information acquired by that officer or information obtained under the provisions of the legislation (for example, s 16(2) ITAA 36, subject to exclusions). One such exclusion is disclosure of information for the purposes of or in connection with the prosecution of a tax related offence against an Act administered by the Commissioner or an offence against the Crimes (Taxation Offences) Act 1980 (Cth) or the Crimes Act . 101 The secrecy provision in the TAA, subject to permitted disclosures, applies to an officer, who, by reason of employment, or in the exercise of powers or functions, acquires or obtains information for the purposes of the Act. The Commissioner's report to the Minister must set out in relation to each general category of offence, information disclosed to a defined 'law enforcement agency' including the Australian Crime Commission. Section 3D(1) of the TAA provides that 'notwithstanding anything in a taxation secrecy provision, the Commissioner may communicate information to the Chief Executive Officer of the ACC for the purposes of a tax-related investigation.' Similarly, the limitation contained in s 3D(11) of the TAA does not prevent disclosure of information in connection with the prosecution of a person for a taxation offence (s 3D(16)). Section 3E(1) of the TAA provides that the Commissioner may disclose information acquired by the Commissioner under a tax law, to an authorised law enforcement agency officer if the Commissioner is satisfied that the information is relevant to 'establishing whether a serious offence has been, or is being committed'. Nothing prohibits a law enforcement agency officer, put broadly, dealing with the information for the purpose of a possible prosecution of a person for a tax-related offence (s 3E(4)).


case_text: It can be seen from these provisions that the powers of the Commissioner are wide-ranging. They comprehend an administrative power both under the ITTA 36 and the TAA to examine the conduct of a taxpayer to determine whether a taxpayer has, according to law, accurately identified the taxable income upon which tax is levied. In undertaking that examination or investigation for the purposes of the ITAA 36, ITAA 97 or the TAA, the Commissioner may exercise express powers such as those contained in ss 263 and 264 . The general administration of the legislation also comprehends a power to examine the conduct of a taxpayer not just to determine whether an assessment or an amended assessment issued by the Commissioner in reliance upon self assessment details supplied by the taxpayer is, in the light of proper analysis or audit (see Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 per Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ), an accurate assessment of the taxpayer's liability to tax for the purposes of Part III but also whether the taxpayer has engaged in conduct which constitutes the commission of an offence against a tax law or a tax-related offence including offences against the Criminal Code and in particular, ss 134.4, 134.2, 135.1, 135.2 and 135.4 being an offence that relates to a liability to the Commonwealth arising under or by virtue of, a tax law.


case_text: The TAA contemplates that information might be disclosed to prosecutorial bodies or law enforcement agencies for the purposes of the tax law. Inherent in the secrecy constraints and the prescription of the conditions upon which information might be disclosed is the recognition that the Commissioner has information made up not only of information supplied by a taxpayer in the ordinary course of self assessment but information obtained by the Commissioner through the exercise of powers, for the purposes of the Act. The general administrative power comprehends that the Commissioner may seek to closely investigate particular arrangements put in place by a taxpayer and especially those involving complex structural arrangements reflecting interposed entities, offshore payments or receipts, inter-company transactions and other arrangements which might reflect tax related contraventions of the Criminal Law of the Commonwealth. The Commissioner may seek to pursue an investigation through his own officers or may seek to cooperatively engage law enforcement agencies especially the Director of Public Prosecutions or the Australian Federal Police (see Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 116 ALR 535). 110 In circumstances where the arrangements under examination involve complex financial analysis, no doubt the Commissioner's officers would undertake such investigation or analysis, form a view and where appropriate brief law enforcement agencies with an assessment of the consequences of the conduct. The failure to confer an express power upon the Commissioner by operation of the Criminal Code , the AFP Act or the Crimes Act does not lead to a construction that the Commissioner does not have the power to conduct an investigation of conduct which might express itself in the form of a contravention of the Criminal Law of the Commonwealth concerning tax related matters. The source and repository of prosecutorial power in respect of any particular offence is another question. 111 The role of law enforcement agencies in connection with the investigation of the possible commission of offences by taxpayers or the possible prosecution of taxpayers by law enforcement agencies does not lead to the conclusion as a question of construction of the ITAA 36, ITAA 97 or the TAA that only a law enforcement agency has power to investigate conduct which finds its expression in the commission of an offence and in particular, the commission of an offence against s 134.2(1) of the Criminal Code by conduct involving, as contended in this case, a deception to dishonestly obtain a financial advantage from the Commissioner by securing a reduction in the quantum of the tax debt owed to the Commissioner by entities associated with the directors Wilhelm and Dempsey. 112 The ITAA 36, ITAA 97 and the TAA establishes a regime, particularly having regard to the self assessment arrangements provided for by the tax legislation, by which all taxpayers are susceptible of audit or investigation, for the purposes of the legislation, by officers of the Commissioner, exercised in good faith according to the terms of the power, to seek to ensure as a matter of important public administrative policy and thus public confidence in the administration of the tax law, that taxpayers comply with the law relating to taxation. The administrative power is not exercised simply, although critically, to secure payment to the Commissioner of the contended tax debt due to the Commonwealth but to deploy resources to examine conduct of a taxpayer by which a tax liability under the Act may potentially not have been met or whether an assessment might be susceptible of adjustment, and determine by forensic examination and investigation of the particular arrangements, whether an offence necessarily connected with or arising under or by virtue of a tax law has arguably been committed. 113 One important aspect of the administration of the tax law in a civil society is that the Commissioner's power of investigation of tax related conduct that might involve a contravention of Commonwealth criminal law can not be foreclosed by payment by the taxpayer to the Commissioner of the amount of the unpaid tax (including interest and penalties) arising out of the conduct. Otherwise, a resourced taxpayer could simply pay his or her way out of an investigation by the Commissioner of whether a criminal offence also occurred.


case_title: Seven Network v News Ltd (No 5) (2005) 216 ALR 147

case_text: The Federal Court Rules ('FCR'), O 33 r 12, provide as follows: (1) Where a party to any proceedings serves on another party notice ... requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge ... having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production. (2) ...'. A notice to produce served pursuant to O 33 r 12, despite the ambiguous form of the rule, has the same coercive effect as a subpoena duces tecum : Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147, at [6], and cases cited there. 6 It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) , at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.


case_text: As with a subpoena, when a notice to produce is issued, three steps must be taken before the documents identified in the notice can be admitted into evidence. The steps were described by Glass JA (with whom Moffitt P and Hutley JA agreed) in National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372, at 381, as follows: 'The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.' 12 It is important to stress, however, that as Waind demonstrates, granting a party access to documents is one thing; admitting the documents into the proceedings is another. Mr Sheahan SC, who appeared with Mr Darke on the motion, urged me not to decide the first question by reference to considerations going to the admissibility of the documents in evidence. Questions of admissibility, so he argued, should be dealt with if and when they arise, on the basis of the appropriate criteria. 13 It follows from what Mr Sheahan has put, that an order granting access to Seven to documents identified in the notice to produce is not to be taken in any way as an indication by me that the documents so produced may be adduced in evidence by Seven. If the documents are tendered, or if Seven's experts seek to add material to their reports in order to refer to documents produced by Telstra in answer to a notice to produce, it will be necessary to consider whether it would be compatible with the just and orderly conduct of the trial to permit Seven to introduce the evidence at this stage. To do so may well cause prejudice to Telstra and the other respondents. The curing of any prejudice may disrupt the trial to such an extent as to warrant rejection of the proffered evidence. 14 As I indicated in the course of argument, I think the scope of the notice to produce, in its present form, is too broad. No issue of oppression has been raised by Telstra . Nonetheless, the notice to produce seeks classes of documents that could not, on any reasonable view, add to the relevant evidence in the proceedings. I have in mind, for example, that the notice to produce seeks board papers and minutes considering any potential change to the value of any of Telstra's pay television interests (existing or contemplated) in consequence of it acquiring any interest whatsoever in a free to air television network. A notice to produce in these broad terms should not be upheld in its entirety merely because it includes a narrow category of documents of apparent relevance to the issues in the proceedings.


case_text: It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) , at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.


case_title: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921


case_text: Counsel for the Minister also submitted that the Minister was under no duty to make inquiries about the interests of the children: see Boyes v Minister for Immigration and Citizenship [2007] FCA 505 at [54] . In the present case, the applicant had provided limited material about his children and it was open to the Minister to consider their circumstances having regard to the material which had been provided together with such other materials as the Department may have obtained. 28 In the circumstances of this case, I am satisfied that the Minister did identify which decision was in the best interests of the children and treated the children's interests as a primary consideration. Paragraphs 24 to 26 of the reasons make it clear that the Minister appreciated the current arrangements concerning the children and that there had been, for some time, no contact with the applicant. The Minister nonetheless said she gave "some weight" to the desire expressed by the applicant to have contact with the children and see them grow up in Australia. The Minister clearly appreciated that the removal of the applicant from Australia would have repercussions on the children's future contact with their father, since it was not an option for the children them to travel with him. The Minister acknowledged the possibility that the court orders regarding the children could change if the applicant's circumstances were to change, meaning it was possible that the children would not remain in the care of the Minister for Community Services until they reached 18 years of age. The Minister went on to say that she had given "substantial weight" to the possibility that the children might want to re-establish contact with their father at some stage. This last statement is of some importance. It clearly favours a decision not to cancel the applicant's visa, allowing him to remain in Australia and thus creating the opportunity for his children to have a relationship with him. There is no suggestion in the reasons that the Minister viewed any of the other matters known about the children as indicating that a decision to cancel the applicant's visa would be in their best interests, or that it negated the "substantial weight" to be given to the consideration which clearly pointed to a decision not to cancel the visa. The children's present custody arrangements and lack of contact with the applicant may have been taken into account in assessing the weight to be given to any such decision or may have simply been noted as context. 29 It should also be noted that the Minister considered these issues under the heading "Best interests of the child" and referred to the Direction, which identifies the need to give primary consideration to the best interests of any children and provides guidance on the issue. These factors lend weight to the view that the Minister did consider the children's best interests as a primary consideration. It is also clear that the Minister, having considered what was known of the circumstances of each of the three children, reached a decision that non-cancellation of the visa would be in the best interests of each of the three children. The Minister had also said, in [22] of the reasons, that she gave primary consideration to each of the children. 38 I am also satisfied that any duty which the Minister may have been under to make inquiries, such as upon receiving the applicant's initial letter (which appears to be how the Minister first became aware of applicant's children), was satisfied. It is unnecessary to decide whether in fact any such duty arose. It may be noted however that Boyes , being the case relied on by the Minister in this respect, did not establish that there never could be such a duty. In that case, Kenny J found that no such duty arose on the facts of the case. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at [82] to [83], a case referred to by Kenny J in Boyes , the Court appeared to accept that certain factual situations can give rise to a duty to make further inquiries in relation to decisions by the Minister under s 501(2) of the Act , citing with approval the comments of McHugh J in Teoh (at 321) regarding the categories of circumstances which may give rise to such a duty. However, in the present case there is no basis for the contention that any such duty the Minister may have been under was not fulfilled. The applicant did not identify any particular inquiries which the Department or Minister had failed to make and which he said should have been made. The Department in fact took a number of steps to inform itself of the circumstances concerning the children, including by requesting the applicant's welfare officer to discuss matters affecting the children with the applicant and provide the Department with further information. The Department also liaised directly with DOCS and provided relevant documents to the applicant for comment.


case_text: Counsel for the Minister submitted that the Minister had considered the best interests of each of the applicant's children and that this was obvious from [24] to [26] of the reasons. Even accepting that the Minister did not expressly state that a decision to cancel the applicant's visa was not in the best interests of his children, that was the clear import of [26]. Reference was made to a number of decisions which make it clear that the Court was entitled to infer from reasons that the matter had been addressed even if the conclusion was not expressly stated: see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433 at [77] per Branson J (with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed); Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36] ; Chong Mun Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 at [47] ; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054 at [47] - [51] , an appeal from which was dismissed by the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. Counsel for the Minister submitted that Wan , the main authority relied upon by the applicant, was clearly distinguishable on the facts. The Tribunal in Wan had not described the best interests of the child as a primary consideration: see Minister for Immigration and Multicultural and Indigenous Affars [2005] FCAFC 13 at [68] . The Tribunal in Wan had demonstrably failed to consider the interests of the children as a primary consideration and in subsequent cases, the Court had been prepared to accept that the issue had been considered notwithstanding limited express consideration of the issue: see for example Van Son and Chong Mun Chai . They had also been unable to find any decision considering or following Wan in which it had been said that findings as to which decision will best serve the interests of the child can never be inferred. 36 The approach indicated by Branson J has been applied or cited with approval by single judges in Van Son at [36] and Chong Mun Chai at [47]. The facts in Chong Mung Chai were similar to the present and, unlike in W157/00A and Van Son , the Minister had provided a statement of reasons. In Chong Mun Chai , the Minister's reasons said that the children would "suffer significant hardship" if the applicant's visa was cancelled, because the applicant's wife and children did not plan to accompany him to South Korea if he was removed. As in the present case, the Minister's reasons did not in terms state what decision was found to be in the children's best interests. In that case, Madgwick J did not accept the submission that a failure to expressly advert in the reasons to aspects of the family break up which would be contrary to the children's interests justified a conclusion that the Minister failed to consider the children's best interests as a primary consideration. Noting that the Minister had said in the reasons that she had given primary consideration to the best interests of the children, and despite the "restrained language" of the reasons in discussing the children's interests, his Honour at [47] applied the approach of Branson J in W157/00A . It should also be applied in the present case.


case_text: I am also satisfied that any duty which the Minister may have been under to make inquiries, such as upon receiving the applicant's initial letter (which appears to be how the Minister first became aware of applicant's children), was satisfied. It is unnecessary to decide whether in fact any such duty arose. It may be noted however that Boyes , being the case relied on by the Minister in this respect, did not establish that there never could be such a duty. In that case, Kenny J found that no such duty arose on the facts of the case. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at [82] to [83], a case referred to by Kenny J in Boyes , the Court appeared to accept that certain factual situations can give rise to a duty to make further inquiries in relation to decisions by the Minister under s 501(2) of the Act , citing with approval the comments of McHugh J in Teoh (at 321) regarding the categories of circumstances which may give rise to such a duty. However, in the present case there is no basis for the contention that any such duty the Minister may have been under was not fulfilled. The applicant did not identify any particular inquiries which the Department or Minister had failed to make and which he said should have been made. The Department in fact took a number of steps to inform itself of the circumstances concerning the children, including by requesting the applicant's welfare officer to discuss matters affecting the children with the applicant and provide the Department with further information. The Department also liaised directly with DOCS and provided relevant documents to the applicant for comment.


case_text: Counsel for the Minister submitted that the Minister had considered the best interests of each of the applicant's children and that this was obvious from [24] to [26] of the reasons. Even accepting that the Minister did not expressly state that a decision to cancel the applicant's visa was not in the best interests of his children, that was the clear import of [26]. Reference was made to a number of decisions which make it clear that the Court was entitled to infer from reasons that the matter had been addressed even if the conclusion was not expressly stated: see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433 at [77] per Branson J (with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed); Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36] ; Chong Mun Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 at [47] ; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054 at [47] - [51] , an appeal from which was dismissed by the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. Counsel for the Minister submitted that Wan , the main authority relied upon by the applicant, was clearly distinguishable on the facts. The Tribunal in Wan had not described the best interests of the child as a primary consideration: see Minister for Immigration and Multicultural and Indigenous Affars [2005] FCAFC 13 at [68] . The Tribunal in Wan had demonstrably failed to consider the interests of the children as a primary consideration and in subsequent cases, the Court had been prepared to accept that the issue had been considered notwithstanding limited express consideration of the issue: see for example Van Son and Chong Mun Chai . They had also been unable to find any decision considering or following Wan in which it had been said that findings as to which decision will best serve the interests of the child can never be inferred. 30 The identification of the best interests of the children has been described as the appropriate "starting point" for considering those interests as a primary consideration: see Wan at [26] and W157/00A at [77] per Branson J, with whom Goldberg and Allsop JJ agreed. In Wan , the Full Court was particularly critical of the Tribunal's failure to identify what the best interests of the children indicated that it should decide (at [26]). This arose in a context where the Tribunal had not identified the children's best interests as being a "primary consideration" and appeared to have approached the question of the children's best interests on the assumption that the applicant's visa would be cancelled. The Tribunal looked at how the children would be affected if their father was removed from Australia and the question of whether the children should relocate. The Full Court found that the Tribunal had erred by not identifying what the best interests of the children indicated that it should decide and, said that even if it was wrong in that conclusion, that it was "inescapable that the Tribunal did not treat the best interests of the children as 'a primary consideration'". In relation to the proper approach to be taken, the Full Court said (at [32]): ...Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. 35 In W157/00A , Branson J found that it was not open to the Court to positively conclude that the Minister did not take the respondent's children into account as a primary consideration in the decision to cancel his visa under s 501 of the Act . In that case, the respondent was advised of the decision in a letter which stated that a copy of the decision record was attached. The decision record was a departmental briefing paper, which, the Court concluded, could not on the facts be regarded as setting out the Minister's reasons for decision. However, the issues document set out various matters concerning the respondent's children and was before the Minister in making the decision. Branson J in that context said (at [77]): ...[I]n this case, as the content of the issues document reflects, everything pointed towards the best interests of the children favouring a decision not to cancel the respondent's visa. It would, in my view, be unrealistic to conclude that this was not appreciated by the Minister. 36 The approach indicated by Branson J has been applied or cited with approval by single judges in Van Son at [36] and Chong Mun Chai at [47]. The facts in Chong Mung Chai were similar to the present and, unlike in W157/00A and Van Son , the Minister had provided a statement of reasons. In Chong Mun Chai , the Minister's reasons said that the children would "suffer significant hardship" if the applicant's visa was cancelled, because the applicant's wife and children did not plan to accompany him to South Korea if he was removed. As in the present case, the Minister's reasons did not in terms state what decision was found to be in the children's best interests. In that case, Madgwick J did not accept the submission that a failure to expressly advert in the reasons to aspects of the family break up which would be contrary to the children's interests justified a conclusion that the Minister failed to consider the children's best interests as a primary consideration. Noting that the Minister had said in the reasons that she had given primary consideration to the best interests of the children, and despite the "restrained language" of the reasons in discussing the children's interests, his Honour at [47] applied the approach of Branson J in W157/00A . It should also be applied in the present case.


case_title: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

case_text: The applicant's written submissions in relation to the remaining ground were brief. They identified the alleged error as being that "[t]here was no proper, genuine and realistic consideration of what was in the interests of the children in terms of which decision by the Minister was in their interests". Reliance was placed on the Full Court's decisions in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. 24 It may be noted at this point that in the present case, submissions were not directed towards the issue of the way in which a failure to identify or consider the children's best interests would constitute jurisdictional error. In both of the cases referred to by the applicant, Vaitaiki and Wan , the jurisdictional error found by the Full Court was in the nature of a breach of the legitimate expectation arising from Australia's ratification of the United Nations Convention on the Rights of the Child recognised by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273. From this it may be inferred that the applicant's case was based on the procedural right recognised in Teoh , although for reasons which will emerge, it is unnecessary to consider the basis of the applicant's argument further. 32 The Full Court's decision in Wan followed the earlier Full Court decision of Vaitaiki , in which the Court had also concluded that the Tribunal had failed to properly consider the best interests of the appellant's children. In that case, which concerned a deportation order made by the Minister, an earlier Tribunal decision had been set aside by consent following the High Court's decision in Teoh and the matter remitted to the Tribunal. The Tribunal member appeared to misapprehend the principle established in Teoh , stating that the holding of the second hearing in itself afforded the procedural fairness to the applicant contemplated in Teoh . Nonetheless the Tribunal had gone on to consider the children's interests. However, the Tribunal approached the children's interests in a very limited way, in effect by assuming that the appellant would be deported and then considering whether the children should relocate with their father. The Tribunal failed to address the question of what the children's interests required it to decide with respect to the proposed deportation: see Burchett J at 618 and Branson J at 631. 33 There are some interesting factual similarities between Vaitaiki and Wan which may in part explain the similar outcomes. In neither case had the Tribunal clearly identified the children's best interests as being a primary consideration. In both cases, the Tribunal had approached the issue of the children's interests from a narrow perspective, proceeding mainly on the assumption that the appellant would be removed or deported and then considering the children's interests in that context. Neither Tribunal decision showed any real consideration of the interests which the children might have had in their parent's visa not being cancelled or their parent not being deported. The outcomes in Vaitaiki and Wan turned to a large degree on the particular way the Tribunal had approached the consideration of the children's interests. It may also be more difficult for the Court to draw an inference that a finding as to what decision was in the children's best interests was made when there is an issue before the decision maker concerning possible relocation by the child or children with the parent.. The need to consider how the child or children would be affected by relocating with the parent adds a considerable complication to the question of what decision is in their best interests. That is not to say however that a Court may not be prepared to drawn an inference in other factual situations: see for example Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119. Much will depend on the particular content of the decision maker's reasons, if any.


case_title: Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875


case_text: The applicant's written submissions in relation to the remaining ground were brief. They identified the alleged error as being that "[t]here was no proper, genuine and realistic consideration of what was in the interests of the children in terms of which decision by the Minister was in their interests". Reliance was placed on the Full Court's decisions in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. 23 At the hearing, counsel for the applicant explained the ground as having three elements. First, the Minister did not make a finding about what was in the best interests of the applicant's children, secondly, that the Minister did not make a finding about each of the three children as individuals which was contrary to the Direction, and thirdly, that there was insufficient information for the Minister to found any such findings, in any event. The applicant primarily relied on the comments of the Full Court in Wan , which held that the Administrative Appeals Tribunal ("the Tribunal") had failed to treat the best interests of the children as a primary consideration in the determination. The Full Court said at [26]: ...Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. 24 It may be noted at this point that in the present case, submissions were not directed towards the issue of the way in which a failure to identify or consider the children's best interests would constitute jurisdictional error. In both of the cases referred to by the applicant, Vaitaiki and Wan , the jurisdictional error found by the Full Court was in the nature of a breach of the legitimate expectation arising from Australia's ratification of the United Nations Convention on the Rights of the Child recognised by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273. From this it may be inferred that the applicant's case was based on the procedural right recognised in Teoh , although for reasons which will emerge, it is unnecessary to consider the basis of the applicant's argument further. 26 Counsel for the Minister submitted that the Minister had considered the best interests of each of the applicant's children and that this was obvious from [24] to [26] of the reasons. Even accepting that the Minister did not expressly state that a decision to cancel the applicant's visa was not in the best interests of his children, that was the clear import of [26]. Reference was made to a number of decisions which make it clear that the Court was entitled to infer from reasons that the matter had been addressed even if the conclusion was not expressly stated: see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433 at [77] per Branson J (with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed); Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36] ; Chong Mun Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 at [47] ; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054 at [47] - [51] , an appeal from which was dismissed by the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. Counsel for the Minister submitted that Wan , the main authority relied upon by the applicant, was clearly distinguishable on the facts. The Tribunal in Wan had not described the best interests of the child as a primary consideration: see Minister for Immigration and Multicultural and Indigenous Affars [2005] FCAFC 13 at [68] . The Tribunal in Wan had demonstrably failed to consider the interests of the children as a primary consideration and in subsequent cases, the Court had been prepared to accept that the issue had been considered notwithstanding limited express consideration of the issue: see for example Van Son and Chong Mun Chai . They had also been unable to find any decision considering or following Wan in which it had been said that findings as to which decision will best serve the interests of the child can never be inferred. 30 The identification of the best interests of the children has been described as the appropriate "starting point" for considering those interests as a primary consideration: see Wan at [26] and W157/00A at [77] per Branson J, with whom Goldberg and Allsop JJ agreed. In Wan , the Full Court was particularly critical of the Tribunal's failure to identify what the best interests of the children indicated that it should decide (at [26]). This arose in a context where the Tribunal had not identified the children's best interests as being a "primary consideration" and appeared to have approached the question of the children's best interests on the assumption that the applicant's visa would be cancelled. The Tribunal looked at how the children would be affected if their father was removed from Australia and the question of whether the children should relocate. The Full Court found that the Tribunal had erred by not identifying what the best interests of the children indicated that it should decide and, said that even if it was wrong in that conclusion, that it was "inescapable that the Tribunal did not treat the best interests of the children as 'a primary consideration'". In relation to the proper approach to be taken, the Full Court said (at [32]): ...Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. 32 The Full Court's decision in Wan followed the earlier Full Court decision of Vaitaiki , in which the Court had also concluded that the Tribunal had failed to properly consider the best interests of the appellant's children. In that case, which concerned a deportation order made by the Minister, an earlier Tribunal decision had been set aside by consent following the High Court's decision in Teoh and the matter remitted to the Tribunal. The Tribunal member appeared to misapprehend the principle established in Teoh , stating that the holding of the second hearing in itself afforded the procedural fairness to the applicant contemplated in Teoh . Nonetheless the Tribunal had gone on to consider the children's interests. However, the Tribunal approached the children's interests in a very limited way, in effect by assuming that the appellant would be deported and then considering whether the children should relocate with their father. The Tribunal failed to address the question of what the children's interests required it to decide with respect to the proposed deportation: see Burchett J at 618 and Branson J at 631. 33 There are some interesting factual similarities between Vaitaiki and Wan which may in part explain the similar outcomes. In neither case had the Tribunal clearly identified the children's best interests as being a primary consideration. In both cases, the Tribunal had approached the issue of the children's interests from a narrow perspective, proceeding mainly on the assumption that the appellant would be removed or deported and then considering the children's interests in that context. Neither Tribunal decision showed any real consideration of the interests which the children might have had in their parent's visa not being cancelled or their parent not being deported. The outcomes in Vaitaiki and Wan turned to a large degree on the particular way the Tribunal had approached the consideration of the children's interests. It may also be more difficult for the Court to draw an inference that a finding as to what decision was in the children's best interests was made when there is an issue before the decision maker concerning possible relocation by the child or children with the parent.. The need to consider how the child or children would be affected by relocating with the parent adds a considerable complication to the question of what decision is in their best interests. That is not to say however that a Court may not be prepared to drawn an inference in other factual situations: see for example Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119. Much will depend on the particular content of the decision maker's reasons, if any. 34 The cases since Wan show that a finding as to what decision would be in the child or children's best interests may in effect be inferred in a variety of circumstances. What emerges is that the paramount issue remains whether the decision maker has considered the best interests of the child or children as a primary consideration. Whether on a fair reading a finding has been made about what decision would be in the child or children's best interests will turn very much on the facts of the case.