case_text: determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417). The exception to this general proposition was where confidential communications passed between a legal advisor or his or her client and a third party (who was not an agent for the client), provided it was made for the dominant purpose of use in or in relation to litigation then existing, anticipated or in contemplation: Wheeler v Le Marchant , supra. As was pointed out by Batt JA in Mitsubishi Electric Australia Pty Ltd at [8], this aspect of legal professional privilege was called litigation privilege as distinct from legal advice privilege.


case_outcome: cited

case_text: applicants bear the onus of proving that each relevant communication was undertaken, or each relevant document was brought into existence, for the dominant purpose of giving or obtaining legal advice ( Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689). That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents ( National Crime Authority v S (1991) 29 FCR 203 at 211), nor is it established by the use of a verbal formula or by simple assertion that the communications were undertaken for the dominant purpose of obtaining or giving 'legal advice' ( Grant v Downs at 689).


case_text: subsequent provision of that document to solicitors for advice is not determinative of the purpose for which it was created. This purpose is to be differentiated from the purpose for which the information is obtained (see National Employers' Mutual General Insurance Association v Waind [1979] HCA 11 ; (1979) 141 CLR 648 at 654). As Brennan CJ said in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 508: The test is anchored to the purpose for which the document was brought into existence ; the use to which a document is put after it is brought into existence is immaterial. (Emphasis added)


case_outcome: referred to

case_text: determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417).


case_text: to the decision in Pratt , communications between a client and another person, or between a lawyer acting for the client and another person, even if made for the dominant purpose to enable the lawyer to provide legal advice to the client, were not privileged under the general law: Wheeler v Le Marchant (1881) 17 Ch D 675 at 681 per Jessell MR; at 683 per Brett LJ; at 684 685 per Cotton LJ. The exception to this general proposition was where confidential communications passed between a legal advisor or his or her client and a third party (who was not an agent for the client), provided it was made for the dominant purpose of use in or in relation to litigation then existing, anticipated or in contemplation: Wheeler v Le Marchant , supra. As was pointed out by Batt JA in Mitsubishi Electric Australia Pty Ltd at [8], this aspect of legal professional privilege was called litigation privilege as distinct from legal advice privilege. At [102] [106] Stone J observed: [102] I am satisfied from this survey of the Australian decisions that have considered the Wheeler principle that this Court is not bound either by authority of considerations of comity to dismiss the present appeals because PW was not the agent of Pratt when it created the documents in question. In my view the present issue must be decided by the application of principle, eschewing formalistic approaches and concentrating on substance. [103] The history of legal professional privilege shows that the courts have been willing and able to adapt the doctrine to ensure that the policy supporting the doctrine is not sabotaged by rigid adherence to form that does not reflect the practical realities surrounding the application of privilege. The complexity of present day commerce means that it is increasingly necessary for a client to have the assistance of experts, including financial experts such as accountants, in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given . This much was recognised by Taylor LJ in Balabel . [104] The complexity of commercial arrangements is matched by increasing volume, complexity and technicality in the law: taxation legislation now runs to many volumes, encompassing nearly 2,000 provisions; corporations and securities legislation is similarly mammoth. A company that wishes to obtain legal advice as to its obligations under such legislation may well need to rely on experts to assist it in instructing its legal advisers. This is not only true of commercial arrangements but may also extend to scientific and technological complexities. To take a purely hypothetical example, suppose the manufacturer of lip salve requests its lawyer to advise as to the health and manufacturing standards with which it must comply. The lawyer is aware that among the legal requirements that may be relevant are regulations applicable to skin care products. In such a case scientific advice may be required as to whether lips are skin. These are issues that did not arise in simpler times. [105] The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client . This approach is consistent with the High Court's ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine. [106] I do not accept that this approach would lead to uncontrollable extension of the privilege. The difficulties in proving the relevant purpose should not be underestimated. Advice as to commercially advantageous ways to structure a transaction are extremely unlikely to attract privilege because the purpose in putting the advice together will, in most cases, be quite independent of the need for legal advice. Even if the parties have in mind that the advice will be submitted to a lawyer for comment, the purpose is unlikely to be the dominant purpose. Determining the dominant purpose underlying a communication may be difficult but no more so than many questions that come before courts. Courts would need to take into account exactly what function was served by the expert advice and whether it was really required in order to instruct the legal advisers fully. Obviously if the third party is an agent of the client and the client has the requisite purpose the determination is comparatively simple. Similarly if the material sought by the lawyer is required for litigation it is not difficult to determine the chain of authority and to find the requisite purpose; see, however, [90]. Ultimately the question is one of fact and the onus is on the person seeking privilege protection to establish the case . (Emphasis added)


case_outcome: applied

case_title: Australian Broadcasting Corporation v O'Neill (20060 227 CLR

case_text: principles which inform whether or not to grant interlocutory injunctive relief are not in doubt. They are as stated by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 571 at 81-82, [65]: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff had made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." [footnotes omitted]. The remaining Respondents do not contest, for the present purposes, that ACMA has demonstrated a prima facie case in the sense described in Australian Broadcasting Corporation v O'Neill (2006) 224 CLR 571 in respect of the allegations I have summarised above. They submit though that the interlocutory relief sought by ACMA goes beyond that which is reasonably necessary in the circumstances pending trial. More particularly they submit: (a) ACMA offers no undertaking as to damages. They acknowledge it is not required to do so insofar as it applies for injunctive relief under the Spam Act s 33. They note it has no similar protection insofar as it relies on s 80 of the Trade Practices Act . Even insofar as ACMA cannot be required to give an undertaking, they submit it is still a relevant consideration that such protection is absent; (b) ACMA has substantially delayed in seeking relief. The substantial delay was before the commencement of proceedings in late 2008. It is apparent from ACMA's affidavit material that it has been investigating and has been in possession of much of the information on which it relies for some time. This suggests, they submit that things are not a drastic as it now seeks to make out; (c) The interlocutory injunctive relief sought by ACMA is in essentially the same form as the final injunctive relief which it seeks. In many respects, its effect will be final. No attempt has been made to confine the relief given its interlocutory nature. As a result, they submit some of the interlocutory relief sought is not appropriate; (d) The Court will be astute to ensure that orders are not made which have the potential to constrain conduct which is not the subject of complaint in the Statement of Claim. Several of the orders sought, they submit, have that potential, particularly so as to prohibit businesses which might lawful be conducted. I turn now to a consideration of these particular submissions by the remaining Respondents. Subsection 80(6) of the TPA is in similar terms to and perhaps provided the inspiration for s 33(2) of the Spam Act (set out above). However, those who enjoy the benefit of s 80(6) are the Minister administering the TPA and the Australian Competition and Consumer Commission (ACCC). This case illustrates that the ACCC is not the only Commonwealth public authority whose functions can embrace the seeking of interim injunctive relief under the TPA in the public interest. That omission might well be though a law reform matter by the Parliament. Be this as it may, ACMA submits that, having regarding to its functions and the purpose of the proceedings, the Court would not regard its failure to offer the usual undertaking as to damages as fatal to so much of its claim for interlocutory injunctive relief as depends upon the TPA. There is no doubt that in suits brought by private litigants the offering of the usual undertaking as to damages is normally expected by the Court before interlocutory injunctive relief is granted. The present form of the usual undertaking as to damages is to be found in Practice Note Number 3 issued by the Chief Justice on 14 June 1999.


case_outcome: followed

case_text: sentiments are evident in the speech of Lord Cross in F Hoffman la roche & Co AG & Ors v Secretary of State for Trade and Industry [1975] AC 295 at 371: "... if the Crown is taking proceedings under a statutory provision ... the court in considering whether or not to make the grant of an interim injunction conditional of the giving of an undertaking in damages has to bear in mind the interest which the public and in particular any section of it which will benefit directly thereby has in seeing that the law in question is enforced. Authorities in this country which evidence a similar position are Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350 at 352 and Director of Public Prosecutions (WA) v Mansfield & Ors [2006] WASC 225 at [14] .


case_text: delay to which the remaining Respondents point is principally that which preceded the institution of proceedings late last year. I do not regard that as a material basis for refusing interlocutory injunctive relief in this case. Prima facie, Mr Weber's affidavits show a continuum of conduct. Further, it is quite apparent from his affidavits that there has necessarily been both an intensive and extensive investigation in order to bring matters to the point where they were fit for the institution of proceedings in this Court. It is to be remembered that, though a criminal standard of proof is not required in order to find contraventions which sound in civil penalties, nonetheless inexact proofs and indirect references are not sufficient: Brigginshaw v Brigginshaw [1938] HCA 34 ; (1938) 60 CLR 336. I have already passed comment as to the breadth of the interlocutory injunctive relief sought by ACMA. It is a serious thing at a such stage of a proceeding to interfere with the lawful conduct of a business or with the ability lawfully to institute other businesses. Subject to one qualification, I consider that the undertakings proffered by the remaining Respondents sufficiently meet the case for interlocutory injunctive relief that ACMA has established. That qualification relates to Winning's undertaking only that it will "use reasonable endeavours" to remove or otherwise deactivate, or cause to be removed or deactivated, any fictitious profiles on dating websites or social networking websites it has registered or otherwise placed on those websites, whether by itself, its servants or agents. Winning seems, prima facie , to have control in respect of such websites. ACMA, in my opinion, has established a case for an interlocutory order that Winning remove or deactivate the websites concerned. If it transpires, for some unforeseen reason, that Winning cannot, notwithstanding what it shows to be endeavours which the Court regards as reasonable effect removal or deactivation, it and its officers would not be found guilty of a contempt. That though is to anticipate. Further, what, prospectively, amounts to "reasonable endeavours" may be a subject upon which reasonable people might reasonably differ. It is undesirable, in my opinion, that that degree of imprecision attend either an interlocutory injunction or an undertaking which upon acceptance will have the same practical effect.


case_title: Director of Public Prosecutions (WA) v Mansfield & Ors [2006] WASC 255


case_title: F Hoffman la roche & Co AG & Ors v Secretary of State for Trade and Industry [1975] AC 295


case_title: Foster v Australian Competition and Consumer Commissioner [2006] FCAFC 21 ; (2006) 149 FCR 135

case_text: submits that, in an appropriate case, this Court's jurisdiction to grant injunctive relief under s 80 of the TPA does extend to prohibiting a person from engaging altogether in a particular field of commercial activity or industry if that is required to protect the public from conduct of the kind which constituted the contravention of that Act found by the Court. A Full Court of this Court has held as much: Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135 at 149, [35] . Foster concerned final injunctive relief granted in circumstances which were sufficiently serious to move the trial judge to impose what he regarded as a pecuniary penalty "at the high end of the scale". Accepting though, as I conceive I must, that s 80 confers such a power in respect of injunctive relief, the facts would, in my opinion, have to be very singular and serious indeed and an applicant's case overwhelming to warrant the granting of relief of such breadth. There is a basis, apparent from the affidavits of Mr SJ Weber, ACMA's senior investigator in this matter, for believing that, either or each of Messrs Salcedo and Maughan, on behalf of Mobilegate, have provided a provisioning form for the provision of a premium short code 19724253 for use in a subscription service known as "Australian Singles On-line" and of an additional short code 19753787. ACMA, so Mr Weber deposes, has received and continues to receive complaints from mobile phone users and dating website operators in relation to the short code 19724253. Mr Weber also deposes to the current use of additional short codes allocated to Mobilegate and Winning respectively, apparently being used for the sending of messages of the kind referred to in the statement of claim. There has been no affidavit material read on behalf of any of the remaining the Respondents as to these matters. Their solicitor has though deposed to the conduct of a business by Winning known as "Winning Bid Reverse Auction". That business is said to be independent from the activities the subject of the present proceedings. ACMA does not submit otherwise. Indeed, it seeks to exclude from the purview of any interlocutory injunctive relief anything which would prevent Winnings conducting that particular business.


case_text: that a question arises as to whether or not undertakings should be accepted, reference should also be made to the guidance offered by Gibbs CJ, Stephen, Mason and Wilson JJ in their joint judgment in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150 at 164-165: An undertaking to the court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; it may therefore be enforced in the same manner as an injunction Milburn v Newton Colliery Ltd; London and Birmingham Railway Co v Grand Junction Canal Co; In re National Federated Electrical Association's Agreement; Biba Ltd v Stratford Investments Ltd. As an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking. Limitations which affect the court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction. The court cannot escape such limitations by the expedient of accepting an undertaking in lieu of an injunction. The court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel. No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation, ... even though it is not in a form which falls within s 80. But, ... this does not justify the conclusion that the Court has power to accept an undertaking by way of final disposition of the case when the Court lacks power to make a final order in that form and the effect of the undertaking is to restrain conduct which the Court has no power to restrain. In general the court must, in deciding whether it will accept from a defendant an undertaking to which the plaintiff takes no exception, be guided by the principles which apply to the making of a consent injunction ... [footnotes omitted]


case_outcome: discussed

case_text: The reasoning of the Tribunal appears in the following two paragraphs: The [Elliotts] say they do not fit within s 1207V(2)(d) because as beneficiaries under a discretionary trust they do not have any beneficial interest in the income or corpus of the trust. They referred to a number of authorities for this proposition, including Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 and Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ; see also R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 per Owen J and Australian Securities Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 6) [2006] FCA 814 at para 28 per French J. The [Secretary] say [s] the words of the section change whatever the position might be at general law. Mr Belcher argued use of the word aggregate 'requires consideration of what the combined beneficial interest of the beneficiaries would be as if they were collected or united into one'. The only persons who can benefit under the trust are the [Elliotts] , their daughter and other persons who, upon their birth, would be relatives of the [Elliotts] . The beneficiaries at any given time are therefore associates of each other. Between them, they account for the whole of the beneficial interest in the property. I agree with this approach. While the individual respondents do not hold any beneficial interest under the general law, the use of the word aggregate in the statute requires the decision-maker to recognise a kind of group right arising when the beneficiaries between them control the whole of the beneficial interest in the corpus of the trust: cf Gartside at 606 per Lord Reid. The use of the associate concept requires the 'group' interest to be attributed to the [Elliotts] because they are related to the other group members. It follows the [Elliotts] hold in excess of 50% of the beneficial interest in the corpus of the trust assets. They therefore satisfy the control test. Hence, the Tribunal held that the trust was a "controlled private trust" within the meaning of s 1207V of the Social Security Act and set aside the SSAT decision to the contrary. 17 The Elliotts argued that, under the trust created by clause 5(b), until the trustees exercised their discretion to make payment out of the trust fund to them, they have merely a right to invoke the equitable jurisdiction of a court to ensure that the trust is duly administered and that the trustees exercise their discretion properly. It followed, so they said, that they could not affect the outcome of the trustees' decision-making process in order to secure the payment of trust funds to themselves. In this circumstance, so they submitted, neither they nor their daughter (or any other discretionary beneficiary) could hold a beneficial interest in the corpus or income of the trust within the meaning of par 1207V(2)(d). Accordingly, so they contended, they could not satisfy par (d) of subs 1207V(2) since none of the discretionary beneficiaries held a beneficial interest capable of being aggregated. Counsel for the Elliotts supported this argument by reference to such authorities as Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ( "Gartside" ), R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 (" Anchorage ") and Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 (" Carey "). 25 The Social Security Act does not define "beneficial interests". The expression "beneficial interest" has no precise received meaning: compare RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (Butterworths, LexisNexis, 4th ed, 2002) at [4-040] and R Speed, "Beneficial Ownership" (1997) 26 ATR Rev 34 at 50. Indeed, the word "interest" is itself "capable of a very wide and general meaning": see Gartside at 617 per Lord Wilberforce; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (" Livingston ") at 22 per Viscount Radcliffe; and CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98 at 114 per Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ. The expression "beneficial interests" therefore falls to be interpreted principally by reference to the statutory context in which it is used, and any guidance that the general law can provide. The Court may also have regard to extrinsic materials such as the second reading speech or the explanatory memorandum accompanying the Bill to confirm that the ordinary meaning of the expression is applicable or to assist in resolving any ambiguity: see Acts Interpretation Act 1901 (Cth), s 15AB. 39 Under clause 5(b) of the will, each of the Elliotts and their daughter has a right to be considered by the trustees as a possible recipient of a payment out of the income and capital of the trust in accordance with the terms of the trust. They also have a right to have the trustees consider whether they should be permitted to reside rent free in any property forming part of the estate. Each of them has a right to have the trust administered duly and properly: compare Gartside at 617-8 per Lord Wilberforce. They also had a right to receive information about the management of the trust fund and to see trust documents: see [44] below. Furthermore, the discretionary beneficiaries have a right to trace and follow the trust assets if they are misappropriated: Livingston 23-24; also Hardingham IJ and Baxt R, Discretionary Trusts (Butterworths, 2 nd ed, 1984) at [517]. It is by no means self-evident, however, that, because of these rights, any of them has "beneficial interests in the corpus or income of the trust" within the meaning of par 1207V(2)(d) of the Social Security Act . 41 As noted earlier, counsel for the Elliotts placed a good deal of reliance on the decision of the House of Lords in Gartside in which a question arose as to whether a person who might benefit, in his lifetime, from the exercise of a trustee's power to make payment to him out of a fund under a discretionary trust held an "interest in possession" within the meaning of s 43 of the Finance Act 1940 so as to attract a tax on death. Gartside held that there was no "interest in possession" within the meaning of the relevant statute: see Gartside at 618 per Lord Wilberforce, with whom Lord Hodson agreed; also 607 per Lord Reid, with whom Lord Morris of Borth-y-Gest and Lord Guest agreed. Whilst the answer is immaterial here, their Lordships' consideration of the nature of the right held by an object of a discretionary trust is helpful. The trust in question was similar in relevant terms to the trust created by clause 5(b) of the will, as the following observations of Lord Wilberforce (at 614-5) show: Under the trusts of income which applied during his life, no one of [the] beneficiaries had any right to receive any income. The trustees had an absolute discretion to distribute or to withhold distribution of the income of any year, and, as regards any income they decided to distribute, to give all or none of it to any one beneficiary. Any undistributed income had, during the permissible period, to be accumulated, i.e., added to capital. ... It is also necessary to appreciate that the discretionary beneficiaries taken together had no right to receive any or, a fortiori, all of the income. ... [T] he trustees had power to accumulate so much as they did not distribute, which might be the whole, for the possible benefit of persons unborn. To describe them as 'the only people who could during the relevant period obtain any benefit from the property or have any beneficial enjoyment of it' may be misleading, unless one bears in mind that, singly or collectively, they had no right in any year to receive a penny. 42 Gartside therefore reinforces what is largely evident from clause 5(b) that, until the trustees exercise their discretion in his or her favour, none of the discretionary beneficiaries has a right to receive any payment of income or capital. At most, each has a right to require the trustees to consider whether to make such a payment in accordance with the terms of the trust: see [39] above. The question remains whether the Elliotts' entitlements as discretionary beneficiaries gives rise to "beneficial interests in the corpus or income of the trust" within par 1207V(2)(d) of the Social Security Act . 43 The second of the decisions relied on by the Elliotts was that of the Full Court of the Supreme Court of Western Australia in Anchorage , which involved contempt proceedings for alleged breach of a Mareva injunction. The question for determination was whether certain transactions amounted to breach of the injunction. A person bound by the injunction exercised his power as the appointor under a trust deed to make his son guardian of the trust and removed himself as appointor. His son removed the other trustee, Anchorage, and appointed a company with which he was associated in its stead. The new trustee, with his consent and that of his wife, declared that they were excluded as general beneficiaries. The Bank argued that the transactions breached the injunction. On appeal, Owen J, with whom Ipp J agreed, held that a beneficiary of the trust in question did not have any proprietary interest in any particular assets of the trust fund or in the fund as a whole. Owen J said (at 79): The Trust Deed confers on the trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established. This is a duty which the court will enforce at the behest of a beneficiary. In this way, the remedy defines the nature of the interest of an individual beneficiary. It is to require the trustee to consider the matter, to decide whether or not to exercise the power and, if the power is to be exercised, to do so correctly in accordance with the terms of the trust ... Such a right is an equitable chose in action. Owen J added (at 80) that, in the case of a beneficiary under a discretionary trust, '[t]he exercise of the rights implicit in the chose in action might not result in any financial benefit to the beneficiary concerned". At the level of principle, Anchorage affirms Gartside but, once again, provides limited guidance on the question at hand. 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews & Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).


case_text: The reasoning of the Tribunal appears in the following two paragraphs: The [Elliotts] say they do not fit within s 1207V(2)(d) because as beneficiaries under a discretionary trust they do not have any beneficial interest in the income or corpus of the trust. They referred to a number of authorities for this proposition, including Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 and Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ; see also R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 per Owen J and Australian Securities Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 6) [2006] FCA 814 at para 28 per French J. The [Secretary] say [s] the words of the section change whatever the position might be at general law. Mr Belcher argued use of the word aggregate 'requires consideration of what the combined beneficial interest of the beneficiaries would be as if they were collected or united into one'. The only persons who can benefit under the trust are the [Elliotts] , their daughter and other persons who, upon their birth, would be relatives of the [Elliotts] . The beneficiaries at any given time are therefore associates of each other. Between them, they account for the whole of the beneficial interest in the property. I agree with this approach. While the individual respondents do not hold any beneficial interest under the general law, the use of the word aggregate in the statute requires the decision-maker to recognise a kind of group right arising when the beneficiaries between them control the whole of the beneficial interest in the corpus of the trust: cf Gartside at 606 per Lord Reid. The use of the associate concept requires the 'group' interest to be attributed to the [Elliotts] because they are related to the other group members. It follows the [Elliotts] hold in excess of 50% of the beneficial interest in the corpus of the trust assets. They therefore satisfy the control test. Hence, the Tribunal held that the trust was a "controlled private trust" within the meaning of s 1207V of the Social Security Act and set aside the SSAT decision to the contrary. 17 The Elliotts argued that, under the trust created by clause 5(b), until the trustees exercised their discretion to make payment out of the trust fund to them, they have merely a right to invoke the equitable jurisdiction of a court to ensure that the trust is duly administered and that the trustees exercise their discretion properly. It followed, so they said, that they could not affect the outcome of the trustees' decision-making process in order to secure the payment of trust funds to themselves. In this circumstance, so they submitted, neither they nor their daughter (or any other discretionary beneficiary) could hold a beneficial interest in the corpus or income of the trust within the meaning of par 1207V(2)(d). Accordingly, so they contended, they could not satisfy par (d) of subs 1207V(2) since none of the discretionary beneficiaries held a beneficial interest capable of being aggregated. Counsel for the Elliotts supported this argument by reference to such authorities as Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ( "Gartside" ), R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 (" Anchorage ") and Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 (" Carey "). 43 The second of the decisions relied on by the Elliotts was that of the Full Court of the Supreme Court of Western Australia in Anchorage , which involved contempt proceedings for alleged breach of a Mareva injunction. The question for determination was whether certain transactions amounted to breach of the injunction. A person bound by the injunction exercised his power as the appointor under a trust deed to make his son guardian of the trust and removed himself as appointor. His son removed the other trustee, Anchorage, and appointed a company with which he was associated in its stead. The new trustee, with his consent and that of his wife, declared that they were excluded as general beneficiaries. The Bank argued that the transactions breached the injunction. On appeal, Owen J, with whom Ipp J agreed, held that a beneficiary of the trust in question did not have any proprietary interest in any particular assets of the trust fund or in the fund as a whole. Owen J said (at 79): The Trust Deed confers on the trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established. This is a duty which the court will enforce at the behest of a beneficiary. In this way, the remedy defines the nature of the interest of an individual beneficiary. It is to require the trustee to consider the matter, to decide whether or not to exercise the power and, if the power is to be exercised, to do so correctly in accordance with the terms of the trust ... Such a right is an equitable chose in action. Owen J added (at 80) that, in the case of a beneficiary under a discretionary trust, '[t]he exercise of the rights implicit in the chose in action might not result in any financial benefit to the beneficiary concerned". At the level of principle, Anchorage affirms Gartside but, once again, provides limited guidance on the question at hand. 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews & Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).


case_text: The reasoning of the Tribunal appears in the following two paragraphs: The [Elliotts] say they do not fit within s 1207V(2)(d) because as beneficiaries under a discretionary trust they do not have any beneficial interest in the income or corpus of the trust. They referred to a number of authorities for this proposition, including Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 and Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ; see also R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 per Owen J and Australian Securities Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 6) [2006] FCA 814 at para 28 per French J. The [Secretary] say [s] the words of the section change whatever the position might be at general law. Mr Belcher argued use of the word aggregate 'requires consideration of what the combined beneficial interest of the beneficiaries would be as if they were collected or united into one'. The only persons who can benefit under the trust are the [Elliotts] , their daughter and other persons who, upon their birth, would be relatives of the [Elliotts] . The beneficiaries at any given time are therefore associates of each other. Between them, they account for the whole of the beneficial interest in the property. I agree with this approach. While the individual respondents do not hold any beneficial interest under the general law, the use of the word aggregate in the statute requires the decision-maker to recognise a kind of group right arising when the beneficiaries between them control the whole of the beneficial interest in the corpus of the trust: cf Gartside at 606 per Lord Reid. The use of the associate concept requires the 'group' interest to be attributed to the [Elliotts] because they are related to the other group members. It follows the [Elliotts] hold in excess of 50% of the beneficial interest in the corpus of the trust assets. They therefore satisfy the control test. Hence, the Tribunal held that the trust was a "controlled private trust" within the meaning of s 1207V of the Social Security Act and set aside the SSAT decision to the contrary. 17 The Elliotts argued that, under the trust created by clause 5(b), until the trustees exercised their discretion to make payment out of the trust fund to them, they have merely a right to invoke the equitable jurisdiction of a court to ensure that the trust is duly administered and that the trustees exercise their discretion properly. It followed, so they said, that they could not affect the outcome of the trustees' decision-making process in order to secure the payment of trust funds to themselves. In this circumstance, so they submitted, neither they nor their daughter (or any other discretionary beneficiary) could hold a beneficial interest in the corpus or income of the trust within the meaning of par 1207V(2)(d). Accordingly, so they contended, they could not satisfy par (d) of subs 1207V(2) since none of the discretionary beneficiaries held a beneficial interest capable of being aggregated. Counsel for the Elliotts supported this argument by reference to such authorities as Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ( "Gartside" ), R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 (" Anchorage ") and Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 (" Carey "). 35 The nature of the rights enjoyed by the beneficiaries of a discretionary trust depends very much on the terms of the discretionary trust in question: see, e.g., the discussion in Carey at 515-6 per French J. Adopting the terminology that his Honour there uses, the trust created under clause 5(b) is a "non-exhaustive" trust because the trustees have a discretion (subject to the directions previously mentioned at [15] above) to distribute part or none of the income and capital of the trust as they see fit: see Carey at 516. The discretionary beneficiaries are an "open" class: see Carey at 516. That is, the trust is capable of benefiting not only living family members (the Elliotts and their daughter) but also persons as yet unborn. As French J commented in Carey at 516, "[t]he naming of these species of discretionary trusts, like the term 'discretionary trust' itself, is a matter of taxonomical convenience rather than expository of principle". At the same time, as French J's discussion in Carey shows, the distinction between "exhaustive" and "non-exhaustive" and "closed" and "open" trusts may have a significant bearing on the nature of the rights or interests held by the discretionary beneficiaries. 36 For example, as French J records, the Court of Appeal in Re Nelson [1928] Ch 920 at 921-2 (" Re Nelson ") held that the three beneficiaries of an exhaustive discretionary trust with a closed class were able to mortgage their share and interest under a will since they were "of age and sui juris" and concurred "in assigning by way of mortgage their interest". In that case, Swinfen Eady MR distinguished the earlier case of Re Coleman (1888) LR 39 Ch D 443 (" Re Coleman "), where the trustees had power to apply the income of the trust fund for the benefit of a class or any one of them to the exclusion of the others (as in the present case). In Re Coleman, one of the beneficiaries assigned his share and claimed that an appropriate portion should be paid to his assignee. In Re Nelson at 921, the Master of the Rolls said (in relation to the issue in Re Coleman ): The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present, where all the members of the class have assigned their shares to the mortgagees. Having regard to these authorities, French J concluded in Carey (at 517) that "[w]here there is an exhaustive discretionary trust with a closed class of beneficiaries, then all the beneficiaries may collectively require the trustee to transfer the fund to them or deal with the property subject to discretion as if they were the absolute owners of it". This is not, however, the position with respect to a non-exhaustive trust where the class of objects is open, as in the case of the trust created under clause 5(b) of the will. 44 The third of the decisions on which the Elliotts relied was that of French J in Carey , where a receiver was appointed under s 1323 of the Corporations Act 2001 (Cth) in respect of the property of a person under investigation. Holding that the provision applied to the relevant person's equitable estate or interest in property the subject of a non-discretionary or fixed trust, his Honour turned to the "less straightforward question ... when the relevant person is a beneficiary of a discretionary trust": see Carey at 515. At 518-9, his Honour stated his opinion that "in the ordinary case the beneficiary of a discretionary trust, other than perhaps the sole beneficiary of an exhaustive trust, does not have an equitable interest in the trust income or property ... amenable to control by receivers under s 1323". His Honour accepted that "there are some rights enjoyed, even by the beneficiaries of a non-exhaustive discretionary trust with an open class of beneficiaries" such as the right to inspect trust documents, the right to require the trustee to provide information about the management of the trust fund, and a right to enforce proper management of the trust by the trustee. In Carey at 520, French J rejected the submission that a beneficiary under a discretionary trust held a contingent interest, saying: The difficulty with applying the notion of contingent interests to beneficiaries of a discretionary trust lies partly in the uncertain scope of the distribution be it income or capital, which may be made in favour of any given beneficiary. I am inclined to think that a beneficiary in such a case, at arms length from the trustee, does not have a "contingent interest" but rather an expectancy or mere possibility of a distribution. His Honour noted that different considerations arose where a discretionary trust is controlled by a trustee "who is in truth the alter ego of a beneficiary" (at 520). This observation is pertinent in the context of subs 1207V(2) of the Social Security Act . 45 Carey is helpful at the level of principle, amongst other reasons, because it concentrates attention on the terms of the particular trust in question. It also draws attention to the fact that the degree of control, if any, that a discretionary beneficiary may enjoy under a discretionary trust depends on the terms of the trust, having regard to the circumstances of the case. Subsection 1207V(2) works on a similar assumption. It is therefore a mistake to treat all so-called discretionary trusts in the same way, as the Secretary's argument tends to do. 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews & Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).


case_text: The Elliotts had no power, so their counsel submitted, to terminate the trust, which would end only with the death of the survivor. This was not, so their counsel said, a case like Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 (" Montefiore "), which extended the rule in Saunders v Vautier [1841] EngR 765 ; (1841) 4 Beav 115 ; 41 ER 482 (" Saunders v Vautier ") to a discretionary trust, because the objects of the trust established under clause 5(b) of the will were not closed and extended to the unborn children of the Elliotts (if any) and the descendants of the Elliotts' children, including Susan Elliott's descendants (if any). 38 Thus, this case is different from Montefiore , where Kearney J held, by reference to the rule in Saunders v Vautier , that, where the class of objects of a discretionary trust was closed and the income was required to be paid each year to one or more of the objects, the objects acting together could terminate the discretionary trust: see Montefiore at 410-11. Whilst his Honour considered it "odd" that "all the objects should collectively enjoy a beneficial ownership entitling them to invoke the rule in Saunders v Vautier which is different in character from the aggregate of their individual interests", he held nonetheless that such an entitlement existed: see Montefiore at 411. In contrast to this, the terms of the trust under clause 5(b) do not require the trustees to pay the trust income at any particular interval or at all to one or other of the objects, but, subject to the directions already noted, would permit the trustees to accumulate income as they saw fit and, as already stated, the class of discretionary beneficiaries is not closed: compare JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 2006) at [2315].


case_text: Counsel for the Secretary submitted that "a beneficial interest" would exist for the purposes of par 1207V(2)(d) where there was "the entitlement ... to enforce the due administration of the trust, and ... the capacity to receive property or interest". On this submission, the position at general law was very largely immaterial. Relying on Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 ; (2004) 136 FCR 134 (" Geeves ") and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 368 and 381, the Secretary argued that a broad construction of par 1207V(2)(d) was consistent with the purpose of Pt 3.18, which was to capture the kind of arrangements made by the testamentary trust in question here. The Secretary maintained that par 1207V(2)(d) was specifically intended to capture discretionary trust entitlements; and that, if I were to accept the Elliotts' submissions, then par 1207V(2)(d) would not operate to capture discretionary trust beneficiaries as intended. The Secretary emphasised the Elliotts' practical capacity to have access to the income and assets of the trust created under clause 5(b) of the will and that they benefited from regular payments out of trust funds. The Secretary noted that all possible discretionary beneficiaries were necessarily "associates" and argued that their interests could be aggregated, with the result that the Elliotts should be considered to pass the control test via par 1207V(2)(d). 40 The authorities provide little direct assistance on the principal question in the case. The Secretary referred to Geeves , which gave rise to the question whether a court-ordered trust fund was to be taken into account in valuing the "assets" held by the sole beneficiary for the purpose of the assets test in s 198(1B) of the Social Security Act . Geeves is, plainly enough, a different case from the present. It did not concern a discretionary trust where the entitlement of a beneficiary is unascertained. Geeves related to a private trust with an ascertained beneficiary, who therefore held a proprietary interest in the property subject to the trust. The Full Court upheld the primary judge's decision that the trust was an "excluded trust" and therefore its assets could not be attributed for the purposes of the assets test. This finding provides no guidance here. Keifel J, with whom Weinberg J agreed, also held that the beneficiary's interest in the trust assets was not to be regarded as 'property' or 'assets' within the meaning of s 11 of the Social Security Act , because the trust assets could not be utilised by the beneficiary: see Geeves at 141. Keifel J's comments in this regard have some bearing on the present case. Her Honour said (at 141-2): The evident focus of the Act, in my view, is upon assets which are available for a person's use. It does not seem to be consistent with the purpose of the Act to require that assets which are not able to be utilised by a person are to be taken into account in assessing whether they qualify for the benefit in question. ... Even on a wider view of property a discretionary trust would not qualify. It could in no sense be said to be the property of a person who is not yet identified as a beneficiary of it. For the purposes of the Act, however, some beneficiaries of discretionary trusts in reality, if not in law, have access to the trust assets because they are in a position to control the trust. The amendments of 2000 recognise and deal with such a situation. They and the Explanatory Memorandum tend to confirm, in my view, that it is assets which are in truth available to a person which are relevant for the purposes of the Act. ... I would therefore conclude that [the beneficiary's] interest in the trust assets would not be regarded as property or assets within the meaning of s 11 of the Act. The amendments of 2000 have the effect however that they would nevertheless be attributed to him. Whilst not in control in the same sense as persons who control discretionary trusts, he would pass the control test set up by s 1207V(2) because his beneficial interest in the trust fund would be 50% or more. The presumption here is that he does have a measure of control because of the extent of his interests. The Secretary's declaration exempts a court-ordered trust, such as that in question here, from the attribution rules. It puts beyond doubt that they are not to be included in the value of the care receiver's assets. It seems to me that, to the extent that this passage elucidates the present question, it tends against the Secretary's argument. First, it emphasises that the purpose of subs 1207V(2) is to make assets that are in reality available to a person relevant for the purposes of determining pension entitlements and, secondly, it underscores the fact that regard must be had to the question of control, having regard to the particular trust in question. This indicates that it is incorrect to view every discretionary trust in the same light; instead, attention must be paid to the particular terms of each trust, whether fixed or discretionary, and to the criteria to which subs 1207V(2) direct attention. 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews & Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).


case_text: Counsel for the Secretary submitted that "a beneficial interest" would exist for the purposes of par 1207V(2)(d) where there was "the entitlement ... to enforce the due administration of the trust, and ... the capacity to receive property or interest". On this submission, the position at general law was very largely immaterial. Relying on Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 ; (2004) 136 FCR 134 (" Geeves ") and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 368 and 381, the Secretary argued that a broad construction of par 1207V(2)(d) was consistent with the purpose of Pt 3.18, which was to capture the kind of arrangements made by the testamentary trust in question here. The Secretary maintained that par 1207V(2)(d) was specifically intended to capture discretionary trust entitlements; and that, if I were to accept the Elliotts' submissions, then par 1207V(2)(d) would not operate to capture discretionary trust beneficiaries as intended. The Secretary emphasised the Elliotts' practical capacity to have access to the income and assets of the trust created under clause 5(b) of the will and that they benefited from regular payments out of trust funds. The Secretary noted that all possible discretionary beneficiaries were necessarily "associates" and argued that their interests could be aggregated, with the result that the Elliotts should be considered to pass the control test via par 1207V(2)(d).


case_text: The Social Security Act does not define "beneficial interests". The expression "beneficial interest" has no precise received meaning: compare RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (Butterworths, LexisNexis, 4th ed, 2002) at [4-040] and R Speed, "Beneficial Ownership" (1997) 26 ATR Rev 34 at 50. Indeed, the word "interest" is itself "capable of a very wide and general meaning": see Gartside at 617 per Lord Wilberforce; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (" Livingston ") at 22 per Viscount Radcliffe; and CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98 at 114 per Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ. The expression "beneficial interests" therefore falls to be interpreted principally by reference to the statutory context in which it is used, and any guidance that the general law can provide. The Court may also have regard to extrinsic materials such as the second reading speech or the explanatory memorandum accompanying the Bill to confirm that the ordinary meaning of the expression is applicable or to assist in resolving any ambiguity: see Acts Interpretation Act 1901 (Cth), s 15AB. 39 Under clause 5(b) of the will, each of the Elliotts and their daughter has a right to be considered by the trustees as a possible recipient of a payment out of the income and capital of the trust in accordance with the terms of the trust. They also have a right to have the trustees consider whether they should be permitted to reside rent free in any property forming part of the estate. Each of them has a right to have the trust administered duly and properly: compare Gartside at 617-8 per Lord Wilberforce. They also had a right to receive information about the management of the trust fund and to see trust documents: see [44] below. Furthermore, the discretionary beneficiaries have a right to trace and follow the trust assets if they are misappropriated: Livingston 23-24; also Hardingham IJ and Baxt R, Discretionary Trusts (Butterworths, 2 nd ed, 1984) at [517]. It is by no means self-evident, however, that, because of these rights, any of them has "beneficial interests in the corpus or income of the trust" within the meaning of par 1207V(2)(d) of the Social Security Act . 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews & Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).


case_text: The Social Security Act does not define "beneficial interests". The expression "beneficial interest" has no precise received meaning: compare RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (Butterworths, LexisNexis, 4th ed, 2002) at [4-040] and R Speed, "Beneficial Ownership" (1997) 26 ATR Rev 34 at 50. Indeed, the word "interest" is itself "capable of a very wide and general meaning": see Gartside at 617 per Lord Wilberforce; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (" Livingston ") at 22 per Viscount Radcliffe; and CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98 at 114 per Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ. The expression "beneficial interests" therefore falls to be interpreted principally by reference to the statutory context in which it is used, and any guidance that the general law can provide. The Court may also have regard to extrinsic materials such as the second reading speech or the explanatory memorandum accompanying the Bill to confirm that the ordinary meaning of the expression is applicable or to assist in resolving any ambiguity: see Acts Interpretation Act 1901 (Cth), s 15AB.


case_text: The expression "beneficial interests in the corpus or income of the trust" appears in subs 1207V(2), which is an important part of Pt 3.18 of the Social Security Act . Part 3.18 introduced a system for the attribution to individuals of the assets and income of private companies and private trusts: see Anstis v Secretary, Department of Family and Community Services [2002] FCA 1043 at [3] - [4] . It must be borne in mind that, broadly speaking, in order to qualify for a pension under the Social Security Act , a person must satisfy an assets test and an income test. Simply put, a would-be pensioner may receive the lower of the two amounts that result from the application of the assets test and the income test. Pt 3.18 is part of this regime. 27 Subsection 1207X(2) of the Social Security Act , which is in Pt 3.18 , concerns private trusts. This subsection relevantly provides that, for the purposes of Pt 3.18 , if a trust is a "controlled private trust" in relation to an individual (and par 1207X(2)(b) is satisfied), then the individual is an "attributable stakeholder" of the trust (unless the Secretary determines otherwise). If the individual is an attributable stakeholder, then, pursuant to pars 1207X(2)(d) and (e), the individual's "asset attribution percentage" and "income attribution percentage" in relation to the trust is either 100%, or such lower percentage as the Secretary determines. Pursuant to subs 1207V(1), for the purposes of Pt 3.18 , a trust is a "controlled private trust" in relation to an individual if the trust is a "designated private trust" (as defined in subs 1207P(1)) and the individual passes the "control test" in subs 1207V(2) or the "source test" in subs 1207V(3). No issue arises in this case as to the application of subs 1207V(3). 28 Subsection 1207V(1) of the Social Security Act provides: For the purposes of this Part, a trust is a controlled private trust in relation to an individual if the trust is a designated private trust and: (a ) the individual passes the control test set out in subsection (2); or (b) the individual passes the source test set out in subsection(3). It is common ground that the trust created under clause 5(b) of the will is a "designated private trust": see subs 1207P(1). 29 Subsection 1207V(2) provides: For the purposes of this section, the individual passes the control test in relation to a trust if: (a ) the individual, or an associate of the individual ... is the trustee, or any of the trustees, of the trust; or (b) a group in relation to the individual was able to remove or appoint the trustee, or any of the trustees, of the trust; or (c) a group in relation to the individual was able to vary the trust deed or to veto the decisions of the trustee; or (d) the aggregate of: ( i) the beneficial interests in the corpus or income of the trust held by the individual (whether directly or indirectly); and (ii) the beneficial interests in the corpus or the income of the trust held by associates of the individual (whether directly or indirectly); is 50% or more; or (e) a group in relation to the individual had the power (by means of the exercise by the group of any power of appointment or revocation or otherwise) to obtain, with or without the consent of any other entity, the beneficial enjoyment of the corpus or income of the trust; (f) a group in relation to the individual was able in any manner whatsoever, whether directly or indirectly, to control the application of the corpus or income of the trust; or (g) a group in relation the individual was capable under a scheme of gaining the enjoyment or the control referred to in paragraph (e) or (f); or (h) a trustee of the trust was accustomed or under an obligation (whether formally or informally) or might reasonably be expected to act in accordance with the directions, instructions or wishes of a group in relation to the individual. (Emphasis added.) 30 It is common ground that the only question in this proceeding is as to the application of par 1207V(2)(d). As noted above, the Elliotts challenged the Tribunal's finding that they passed the control test in relation to the trust established under clause 5(b) of the will on the basis that they satisfied par 1207V(2)(d) of the Social Security Act . The Tribunal confined its attention to this paragraph. It did not consider whether the Elliotts satisfied the control test by reference to any other paragraph in subs 1207V(2), the SSAT having previously determined to the contrary. The Secretary did not contend that there was any error in its approach in this regard.


case_title: Re Nelson [1928] Ch 920

case_text: For example, as French J records, the Court of Appeal in Re Nelson [1928] Ch 920 at 921-2 (" Re Nelson ") held that the three beneficiaries of an exhaustive discretionary trust with a closed class were able to mortgage their share and interest under a will since they were "of age and sui juris" and concurred "in assigning by way of mortgage their interest". In that case, Swinfen Eady MR distinguished the earlier case of Re Coleman (1888) LR 39 Ch D 443 (" Re Coleman "), where the trustees had power to apply the income of the trust fund for the benefit of a class or any one of them to the exclusion of the others (as in the present case). In Re Coleman, one of the beneficiaries assigned his share and claimed that an appropriate portion should be paid to his assignee. In Re Nelson at 921, the Master of the Rolls said (in relation to the issue in Re Coleman ): The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present, where all the members of the class have assigned their shares to the mortgagees. Having regard to these authorities, French J concluded in Carey (at 517) that "[w]here there is an exhaustive discretionary trust with a closed class of beneficiaries, then all the beneficiaries may collectively require the trustee to transfer the fund to them or deal with the property subject to discretion as if they were the absolute owners of it". This is not, however, the position with respect to a non-exhaustive trust where the class of objects is open, as in the case of the trust created under clause 5(b) of the will.


case_title: Re Coleman (1888) LR 39 Ch D 443


case_title: Saunders v Vautier [1841] EngR 765 ; (1841) 4 Beav 115 ; 41 ER 482


case_text: As to the form of orders, subs 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such orders as it thinks appropriate by reason of its decision". In appropriate circumstances, the court may make a decision in substitution for that under review: see, e.g., Harradine v Secretary, Department of Social Security [1989] FCA 200 ; (1989) 25 FCR 35 and Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628 ; (1991) 33 FCR 186. Pursuant to subs 44(5) the power extends to the making of an order affirming or setting aside the decision of the Tribunal and an order remitting the case. By subs 43(1), the Tribunal itself is empowered to make a decision affirming, varying or setting aside the decision under review and, in the latter event, making a decision in substitution or remitting the case for reconsideration.


case_text: The reasoning of the Tribunal appears in the following two paragraphs: The [Elliotts] say they do not fit within s 1207V(2)(d) because as beneficiaries under a discretionary trust they do not have any beneficial interest in the income or corpus of the trust. They referred to a number of authorities for this proposition, including Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 and Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ; see also R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 per Owen J and Australian Securities Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 6) [2006] FCA 814 at para 28 per French J. The [Secretary] say [s] the words of the section change whatever the position might be at general law. Mr Belcher argued use of the word aggregate 'requires consideration of what the combined beneficial interest of the beneficiaries would be as if they were collected or united into one'. The only persons who can benefit under the trust are the [Elliotts] , their daughter and other persons who, upon their birth, would be relatives of the [Elliotts] . The beneficiaries at any given time are therefore associates of each other. Between them, they account for the whole of the beneficial interest in the property. I agree with this approach. While the individual respondents do not hold any beneficial interest under the general law, the use of the word aggregate in the statute requires the decision-maker to recognise a kind of group right arising when the beneficiaries between them control the whole of the beneficial interest in the corpus of the trust: cf Gartside at 606 per Lord Reid. The use of the associate concept requires the 'group' interest to be attributed to the [Elliotts] because they are related to the other group members. It follows the [Elliotts] hold in excess of 50% of the beneficial interest in the corpus of the trust assets. They therefore satisfy the control test. Hence, the Tribunal held that the trust was a "controlled private trust" within the meaning of s 1207V of the Social Security Act and set aside the SSAT decision to the contrary. 54 As to the form of orders, subs 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such orders as it thinks appropriate by reason of its decision". In appropriate circumstances, the court may make a decision in substitution for that under review: see, e.g., Harradine v Secretary, Department of Social Security [1989] FCA 200 ; (1989) 25 FCR 35 and Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628 ; (1991) 33 FCR 186. Pursuant to subs 44(5) the power extends to the making of an order affirming or setting aside the decision of the Tribunal and an order remitting the case. By subs 43(1), the Tribunal itself is empowered to make a decision affirming, varying or setting aside the decision under review and, in the latter event, making a decision in substitution or remitting the case for reconsideration.


case_title: Comcare v A'Hearn (1993) 45 FCR 441

case_text: The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).


case_title: Dix v Client Compensation Tribunal (1993) 1 VR 297


case_title: Doyle v Chief of Staff (1982) 42 ALR 283


case_title: Drew v Bates [2005] FMCA 1221

case_text: The seven principles were summarised in my view, accurately by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters: 1. explanation for delay 2. any prejudice to the respondent 3. whether the applicant has an arguable case. 21 As I have already noted in my judgment, the applicant filed his application more than six months after the Notice of Termination was issued by HREOC pursuant to s 46PH(2). 22 The applicant in his application did not explain the delay in filing. However, there appears to have been relevant correspondence between the applicant and the Federal Court Registry. This correspondence was annexed to the HREOC claim filed 21 January 2005, and constituted: • a copy of a letter written by the applicant to the Federal Court Registry in Brisbane dated 22 July 2004, stamped as received by the Registry on 27 July 2004. In that letter the applicant stated that he wished to make a complaint concerning the matter, and that he believed that he had 'not been dealt with by another statuary (sic) authority'. The applicant in the letter stated that he enclosed the Notice of Termination issued by HREOC. • a letter from Deputy District Registrar Reynolds of the Federal Court to the applicant, dated 27 July 2004, which informed the applicant that his correspondence was insufficient to commence proceedings in the Federal Court, and stating that it enclosed a package that had been prepared in the registry for the assistance of self-represented litigants who wished to commence Human Rights proceedings. In that letter the Deputy District Registrar invited the applicant to contact her if he had any queries. • a letter from the applicant to the Deputy District Registrar dated 28 September 2004, stamped as received by the Federal Court Registry on 7 October 2004. In this letter the applicant acknowledged that there was a 28 day limit on making an application to the Federal Court under s 46PO, and acknowledged that the correspondence he had sent was insufficient at the time to commence proceedings. In the letter he stated that his financial situation was extremely difficult and that he needed time to gather sufficient funds to proceed the matter with the assistance of a lawyer. He concluded the letter by asking: 'Could you please consider my request.'


case_text: Accordingly, to the extent that it is possible for me to identify a disability which the applicant may have experienced at the relevant time, it appears that it is depression, with symptoms including fatigue, confusion and lack of concentration. A depressive illness can fall within the scope of 'disability' as defined by s 4 DD Act (note, for example, comments of the Full Court of the Federal Court in Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at par 16, and the observation of Brown FM in Power v Aboriginal Hostels Ltd [2004] FMC 452 at par 12).


case_title: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344


case_title: Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541


case_title: Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624


case_title: Lucic v Nolan (1982) 45 ALR 411 at 416


case_text: As I have already noted, the applicant did not make his application within 28 days as required by s 46PO(2). Accordingly, as pointed out by Gray J in Pham v Commonwealth of Australia [2002] FCA 669 at par 10, if the application were to proceed, the applicant would have to persuade the Court to exercise the power under s 46PO(2) to allow a further time for the filing of the application. 19 The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).


case_outcome: approved

case_title: Phillips v Australian Girls Choir [2001] FMCA 109


case_title: Power v Aboriginal Hostels Ltd [2004] FMC 452


case_title: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535


case_text: However even if I were satisfied that the applicant had a disability within the meaning of the DD Act , the second issue which immediately arises is that, other than by referring to sections of the DD Act , no case is put by the applicant as to how he has been subjected to unlawful discrimination by the respondent under the legislation. The onus of proof would be on the applicant in the substantive case to prove that he had been subjected to unlawful discrimination: note comments of the Full Court of the Federal Court in Sharma v Legal Aid (Qld) [2002] FCAFC 196 in the context of applying the RD Act , and learned articles on this issue including J Hunyor 'Skin-deep: Proof and Inferences of Racial Discrimination in Employment' (2003) Syd L Rev 24 and E Waldeck and R Guthrie 'Disability discrimination in education and the defence of unjustifiable hardship' (2004) Curtin University of Technology School of Business Law Working Paper Series 040:06 at p 8. 49 Section 15(1) DD Act appears irrelevant, as that subsection deals only with discrimination in the context of offering employment, which was not the case here. As I noted earlier in this judgment however, s 15(2) deals with discrimination against existing employees on the ground of the employee's disability: '(a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment.' 50 In his application, the applicant has made reference to: (a) the termination of his employment by the respondent; and (b) the circumstance that, 'during the process of the investigation made by Qantas Airlines, I was allowed under the EBA to be offered the redundancy package at the time. That was not the case, pending the outcome from the investigation'. 51 Accordingly, the applicant's substantive claim could potentially fall within the terms of par 15(1)(c) in relation to the termination of his employment, or par 15(1)(b) in the context of his claim that he has not received a redundancy package. 52 The DD Act prohibits two types of discrimination disability discrimination (s 5) and indirect disability discrimination (s 6). The applicant has specifically relied on s 6 in his application before me (note also the TS p 20 ll 5-12), and has not relied on s 5, although HREOC also considered his complaint in the context of s 5.


case_text: As observed by Brennan J in Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 378 in considering the concept of reasonableness in a similar legislative provision: 'It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory...or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.' 57 In the absence of submissions by the applicant, it is difficult to understand how the Barplus procedures, which required account of documents and monies received by flight attendants during the performance of their duties, were other than a reasonable requirement in the circumstances. 58 Accordingly in my view there is no merit in the applicant's submissions that he has been the subject of unlawful discrimination within the meaning of the DD Act .


case_title: Wedesweiller v Cole (1983) 47 ALR 528


case_text: Although the Application for Leave to Appeal as filed in this Court on 4 March 2008 sought an order dispensing with compliance with O 52, r 5(2) of the Federal Court Rules , in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that " there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA ". His Honour further concluded that " there is an implied time limit of 21 days after the date of the interlocutory judgment ". See also: Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220 at [32] per Moore J.


case_title: Harrington v Rich [2008] FCAFC 61

case_text: No question arises in the present Application as to whether it was filed within time; the question is whether leave should be granted or refused. Considerations relevant to the exercise of that discretion are: (i) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ. 8 The proposed Grounds of Appeal as set out in the Draft Notice of Appeal are as follows (without alteration): 1. Jurisdictional error 2. Breached of procedural fairness 3. Berached of natural justice Particulars provided in respect of these grounds, as expressed in the Draft Notice of Appeal , state (without alteration): 1. TRIBUNAL ASK FOR THE RE LOCATION & FAILED TO SAK FOR THE INFORMATION. 2. THEY USED TELEPHONE CONFRENCE FOR ME.ITS TOO DIFFICULT FOR ME. 3. I NEED A GOOD HEARING: 9 It is considered that leave to appeal should be refused. A review of the reasons for decision of the Tribunal does not reveal any jurisdictional error, breach of procedural fairness or denial of natural justice. Nor do the reasons of the Federal Magistrates Court, albeit brief, disclose any self-evident appellable error.


case_title: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543


case_text: On 20 February 2008 the Federal Magistrates Court dismissed an application seeking review of the decision of the Tribunal: SZLRL v Minister for Immigration & Citizenship [2008] FMCA 196. The Federal Magistrate dismissed the proceedings before that Court pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 4 Rule 44.12 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. As r 44.12(2) expressly provides, the dismissal of an application under r 44.12(1)(a) is an interlocutory decision. 5 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The Applicant appeared before this Court this afternoon unrepresented, although he did have the assistance of an interpreter.