case_title: Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commisioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487

case_text: question of the considerations that are relevant to a company administrator's exercise of a casting vote under reg 5.6.21 and of applications under s 600B to set aside a resolution passed on the casting vote has been considered in Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707 ( Bartlett ), Re Coaleen Pty Ltd (Administrator Appointed) (1999) 30 ACSR 200 ( Coaleen ), Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 , Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 ( Cresvale ), Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86 , and Blue Ring Pty Ltd v Landshore Pty Ltd (Subject to a Deed of Company Arrangement) [2006] WASC 245 ( Blue Ring ).


case_outcome: referred to

case_text: DCT has, however, rightly drawn attention to the note of caution sounded by Gillard J in Re Rugs Galore Australia Pty Ltd; Linen House Pty Ltd v Rugs Galore Australia Pty Ltd [1999] VSC 126 ( Rugs Galore ) at [75] [79]: [75] The extent of the investigation is in the end a matter for the administrator. Hence the importance of his impartiality, independence and requirement to act carefully in the interests of the creditors. [76] Whilst there are strict time limits and the administration is intended to proceed speedily there is no excuse for failing to carry out a full and proper investigation. What is a full and proper investigation will depend on all the circumstances but matters of concern to creditors are preferences, possible directors' breach of duty, possibility of recovering compensation from directors who conduct the company's business knowing it is insolvent, and recovery of compensation from de facto directors. Another matter of importance is the recovery of any of the corporation's property which has been unlawfully transferred. [77] In my opinion it is no excuse to limit a full and careful investigation by reference to the time limits set out in the Law. Time limits require expedition, and a full investigation may require further resources being used and if necessary the second meeting be adjourned or an application for extension of time be made. Further resources would include the employment of enough personnel to adequately perform the task. The fact that the second meeting can be adjourned from time to time supports the view that the administrator should not refuse to investigate fully a matter because of time constraints. In the end result the creditors must know. They are entitled to a thorough investigation. They rely on the administrator performing his task. Failure to properly investigate puts at risk the whole object of Part 5.3A which ultimately leaves the decision to the creditors making an informed decision. If the administrator is unable to make a proper investigation in respect of matters of importance to the creditors' decision he should tell them. He should alert them that there are matters relevant to their interests which should be further investigated. Much can be gained by shareholders, directors and others from a deed of company arrangement "wiping the debts" and putting beyond the reach of the law the delinquencies of directors and others involved with the company's business. It behoves an administrator to properly fulfil his duty. [78] There are dicta in the cases suggesting that the time limits imposed for the convening of the second meeting can affect the amount of information that should be provided to the creditors. An administrator should not take those observations as being an excuse for failing to properly, adequately and carefully investigate matters which are material to the decision of the creditors or failing to inform the creditors on material matters. [79] The administrator has extensive powers and it is no excuse not to fully, carefully and adequately investigate a matter which would bear on the decision of the creditors. There is a tendency to assume that if any money is available to a creditor pursuant to a deed of company arrangement which is in excess of any amount that would be recovered on a liquidation, that is a proper basis for opining the view that company arrangement is the best alternative. Therefore there is no necessity to concern the creditors about other issues. The argument is the bottom line is money, and irrespective of how much, a receipt of something is better than nothing. But there are other factors which may influence creditors. They should have the benefit of a proper investigation. As I think Austin J implied in Portinex [2000] NSWSC 99 ; 34 ACSR 391 , it must often be a difficult question for company administrators how far to go in their investigations and report. An administrator does not have the powers of a liquidator, and I do not understand Gillard J in Rugs Galore [1999] VSC 126 to have suggested that an administrator should be held to standards applicable to a liquidator. Much will depend on what comes to the administrator's notice in the course of his or her investigations, and how much will come to notice will be influenced by, among other considerations, the fact that he or she is not expected to conduct a moral crusade (see [210] ff below). It will often be appropriate, as Mr Hamilton did, to draw the creditors' attention to lines of inquiry that it would be open to a liquidator to pursue, to the likely cost of pursuing them, to the need for funding, and to the issue whether the prospective defendant would have the means to satisfy a judgment.


case_text: question of the considerations that are relevant to a company administrator's exercise of a casting vote under reg 5.6.21 and of applications under s 600B to set aside a resolution passed on the casting vote has been considered in Re Bartlett Researched Securities Pty Ltd (Administrator Appointed) (1994) 12 ACSR 707 ( Bartlett ), Re Coaleen Pty Ltd (Administrator Appointed) (1999) 30 ACSR 200 ( Coaleen ), Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 , Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 ( Cresvale ), Young v Sherman [2002] NSWCA 281 ; (2002) 170 FLR 86 , and Blue Ring Pty Ltd v Landshore Pty Ltd (Subject to a Deed of Company Arrangement) [2006] WASC 245 ( Blue Ring ). These authorities show that: (1) Good faith alone will not necessarily shield the resolution from a setting aside (or variation) under s 600B ( Cresvale 37 ACSR 394 at [111]); (2) A factor that may justify setting aside the resolution is a statement in or omission from the administrator's report under s 439A that is apt to have misled creditors when they cast their deliberative vote ( Blue Ring [2006] WASC 245) ; (3) Inadequacy and superficiality of an administrator's investigation of the company's business, property, affairs and financial circumstances, at least as disclosed by the evidence before the Court, may warrant a setting aside of the resolution ( Bartlett 12 ACSR 707 ; Cresvale 37 ACSR 394 at [113]); (4) There is no presumption in favour of the majority in value, although any large disproportion between the values of the debts of the numerical minority and the numerical majority will be a factor to be taken into account ( Coaleen 30 ACSR 200 ; Cresvale 37 ACSR 394 at [115]); and (5) Payment of a premium to the creditors who supported the DOCA but not to a dissident creditor will justify a setting aside by the court ( Young v Sherman [2002] NSWCA 281 ; 170 FLR 86).


case_outcome: discussed

case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. In reaching those conclusions, it becomes perhaps unnecessary for me to consider, in the circumstances postulated by Mr Rhodes, the scope of operation of the general law relating to the formation and promulgation of Ministerial policy as a guide to the exercise of administrative discretion. Nevertheless I would record in that context the principles restated by Brennan J (as then President of the AAT) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640, as follows: are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute....' Reference may also be made in that regard to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206, where French and Drummond JJ, referring to Re Drake, observed as follows: place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy.' Purportedly by way of reply, Mr Rhodes contended that AFMA did 'not point to any properly articulated statement as to what is said to be its "limited entry" policy, in a form that the AAT or this Court can properly assess such a policy: as being lawful by reference to the structure and operation of the [Management Act]; and as being applicable to the circumstances of Mr Rhodes.' I do not think that to be correct. In any event, upon that somewhat sweeping and unspecific footing, Mr Rhodes contended that '[t]here is therefore no policy within the scope of Drake ' and further that '[t]o the extent such a policy might be implied from various matters found in the evidence... such a policy when properly construed does not treat [Mr Rhodes] as a "new entrant" in any relevant sense'. I have difficulty in distilling the implications of either contention. The policy is articulated or reflected both explicitly and implicitly for instance in the provisions of sections 7(5)(1)(j) and 62(4). The objective circumstances were that Mr Rhodes did not tender payment of the management levy of $400.00 at any material time, his fishing permit relating to the period of time from 1 March 2001 to 31 December 2001 was suspended on 9 May 2001 and cancelled on 12 July 2001. After those events had occurred, Mr Rhodes merely forwarded to AFMA a form of application for fishing permit, and did so without any tender of payment of fees. It was next asserted by Mr Rhodes that '[n]othing can be taken from the events prior to the OCS arrangements (1985 to 2001) in relation to boat and net numbers as affecting [Mr Rhodes]', and that '[w]hatever policy may have been in place, it was expressly overridden by the OCS transfer of jurisdiction from Tasmania to the Commonwealth'. The first limb of that assertion was not seemingly supported in relation to either boat numbers or fish net numbers, and the second limb purportedly propounded a proposition without any apparent, much less reasoned, support. It was then asserted by Mr Rhodes that 'OCS arrangements required the Commonwealth to treat Tasmanian fishermen on a fair and equitable basis with Commonwealth fishers', and further that the same 'expressly permitted Tasmanian Shark Gill Net and Hook fishermen to apply for a Commonwealth fishing concession'. Those provisions originated in the Memorandum of Understanding of 17 November 2000, clause 12(g) thereof reading as follows: ensuring individual fishers in a fishery, who come under the Commonwealth's jurisdiction as a result of OCS arrangements, are treated on a fair and equitable basis with all other fishers in the school shark and gummy shark fishery.' However that opportunity for equal participation was not open-ended at least in the sense of accommodating prospective or aspirational entrants. Thus clause 14 of the Memorandum of Understanding, under the sub-heading 'Commonwealth School Shark and Gummy Shark Management', required 'listed fishers' within '60 days, from notification, to apply for a Commonwealth shark fishing concession' , and clause 15 thereof recorded that 'AFMA has taken a decision, in accordance with its legislative objectives, that school shark and gummy shark will be managed by determining the total allowable catch... of each species, allocating the Commonwealth component of the TAC to individual Commonwealth fishing concession holders as individual quota and making this individual quota transferable'. Moreover clause 16 stipulated for '[t]he initial allocation mechanism to apportion the TAC of school shark and gummy shark... sectors within the Southern Shark Fishery', and for '... the appropriate formula(e) for the allocation of Individual Transferable Quotas... for school shark and gummy shark amongst Southern Shark Fishery permit holders within each of the sectors...' , pursuant to recommendation 'by an independent allocation advisory panel, which was charged with the task of recommending a result which ensures that all operators in the fishery are treated on a fair and equitable basis in the allocation process...' . However so much did not declare or envisage contextually that the allocation process would remain open to newcomers, if otherwise qualified to apply as 'licensed fishers' , subsequent to the operation of '[t]he initial allocation mechanism' .


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. Reference may also be made in that regard to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206, where French and Drummond JJ, referring to Re Drake, observed as follows: place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy.'


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. Nevertheless, so the submissions of Mr Rhodes continued, 'the OCS Memorandum of Understanding contemplates the fishery will be managed by determination of total allowable catch for quota species, allocation of that TAC quota to permit holders and making such quota transferable' , Mr Rhodes referring generally again to clauses 14 to 16 of the Memorandum of Understanding of 17 November 2000, and to page 11 of the Southern Shark Fishery 2001 Management Arrangements of January 2001 appearing under the heading 'Is Quota Transferable?'. That begs the issue as to restrictions imposed elsewhere in relation to the permit holders to be the subject of such allocations. It was submitted further by Mr Rhodes in the present context that '[a]part from the 2003 Management Plan and the OCS arrangements, there was no evidence before the AAT of any promulgated policy of the Minister or AFMA to refuse applications for fishing permits in the SESS Fishery'; it was said by Mr Rhodes in that regard that '... cases such as Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 are distinguishable'. To provide a brief key to an understanding of the ratio in Re Green, I extract below the headnote, which would at least not seem to lend support to Mr Rhodes' contention in that regard: relevant AFMA policy did not have the status of Ministerial policy, or policy adopted by a body such as the Australian Fisheries Council comprising the relevant Commonwealth and state ministers. However, the policy was settled and adopted by the AFMA board after consultation with key stakeholders, and should be given great weight by the tribunal and should be applied unless it was unlawful or unless there were cogent reasons militating against its application in the circumstances of the particular case.' It was acknowledged by Mr Rhodes that '[w]hen determining the quota to be allocated to individual fishing permits, considerations of management by way of the TAC [ie total allowable catch] quota, and environmental concerns invoking the precautionary principle, may well be relevant', and I was referred in that regard to AFMA's letter of 12 November 2003 to Mr Rhodes, which concluded with AFMA's statement of an inability '... to reinstate your fishing permit 26978' , to which letter I have already referred in some detail. However there additionally appeared in that letter the further statement that '[l] imiting the number of operators in a fishery has been widely adopted through the world as a necessary first step in any management of fisheries resources' . AFMA furthermore cited 'Technical Guidelines for responsible fisheries 4' , being a United Nations Food and Agriculture Organisation's 1997 publication, which contained reference to the factor that '... limited access is widely considered to be essential for efficient and responsible fisheries' . In the same context, AFMA further cited the 1992 'Inter-governmental Agreement on the Environment' , entered into by the Commonwealth, State and Territory Governments in Australia, where in par 3.5.1 the following appeared: there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation... .' It was in the context essentially of what I have summarised in the present segment of these reasons that Mr Rhodes contended boldly that '[i]t was inconsistent with the objectives of the [Management Act], the SESS Management Plan and the OCS arrangements to refuse Mr Rhodes' application on the basis that he was, at the time of the application, not the holder of a current permit'. I have experienced considerable difficulty in distilling any such themes of assistance from those materials in favour of Mr Rhodes' contentions propounded by counsel, and which I have sought to summarise or reproduce in these reasons.


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. It was in the context of those levy and charge collection provisions of the Management Act that Mr Rhodes further submitted that '[w]here the Act has expressly provided for the penalty to be imposed for failure to pay a levy, it is an improper exercise of power by AFMA [to] seek to impose a further penalty on Mr Rhodes by refusing to issue him a new permit', and further that '[h]ad Parliament intended that cancellation of a permit be permanent, it would have made specific provision to that effect'. It was further submitted by Mr Rhodes that '[t]he cost recovery argument also ignores the ability of AFMA under section 32(6) to impose conditions on the issue of a permit', and further that '[i]f there are outstanding levies or other obligations, the permit could be made conditional upon the applicant first discharging his outstanding levy obligations'. Whether a logical stopping place in terms of viable and convenient economic management may be articulated in support of that contention must be at least difficult to encapsulate. It is a common feature of contractual remedies of cancellation of entire contractual rights on default of payment of a liquidated sum that the same crystallise ipso facto , and are exercisable subject to whatever formalities of notice may be stipulated by the governing contract or any statutory stipulation. Treating the failure to pay levies as fatal to Mr Rhodes' application was said by Mr Rhodes in any event to misconstrue the discretion vested in AFMA under s 32 of the Management Act, that being described as not a matter of cost recovery but effecting in substance a forfeiture which in private law would give rise to relief for unconscionable conduct. Qualification for relief of that kind would normally be at least formidable. Mr Rhodes invoked the decision of the High Court in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406, but the analogy is hardly in kilter. That well known High Court authority concerning relief against forfeiture related to a purchaser by instalments originally of vacant land, in circumstances where the purchaser erected subsequently a home on the land at a time when the land had not been fully paid for, and hence in circumstances where upon termination of the contract for default in payment of the purchase price for the vacant land, 'the vendors will receive an ill-merited windfall' (per Gibbs CJ and Murphy J at 429). In my opinion the loss of the statutory privilege in the nature of the present fishing permit by reason of non-payment of periodic levies geared to the continuance on foot of the permit would not constitute sufficient analogy with the principles of the general law concerning forfeiture of property or proprietary rights in circumstances where the statutory entity gains no proprietary or pecuniary advantage and is merely enabled or assisted to perform its statutory functions and obligations.


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. This further issue was raised by Mr Rhodes by way of challenge to the exercise by AFMA of its power of cancellation of Mr Rhodes' fishing permit for reasons of so-called 'non-payment of fees or levies'; it was acknowledged that '[i]n determining the scope of the obligation of natural justice, the statutory framework is of crucial importance'. I was referred by Mr Rhodes to the High Court decision of Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475, where in the reasons for judgment of Kitto J at 502-4, his Honour considered whether the Taxation Board of Review was '... legally bound to conform to the principles of natural justice in dealing with a reference in a case under s 136' . Kitto J made the prefatory observations that '[a] legal obligation so to act arises in respect of many statutory powers...', there being '... no words which are of universal application to every kind of inquiry and every kind of tribunal...', but '[w]hat the law requires in the discharge of a quasi-judicial function is judicial fairness' , which is '... not a label for any fixed body of rules...,' and '[w]hat is fair in a given situation depends upon the circumstances' . The statutory context of the then Income Tax and Social Services Contribution Assessment Act 1936-1958 (Cth), which was of course in focus in Mobil Oil , is significantly removed from that of the Management Act. Mr Rhodes sought support additionally for the operation in principle of the rules as to natural justice from the dictum of Brennan J in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 at 326, where his Honour observed as follows: the limits of a statutory function are ascertained the interests which are apt to be affected by the performance of the function can be identified. Then it is possible for a court to say in the absence of express statutory provision what has to be done to be fair to those whose interests are apt to be affected by the performance of the function. The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice....' Those considerations render formidable the task of establishing the operation of the rules of natural justice in the present statutory context where the basis for prospective qualification would be the same for all applicants, that being the holding of an existing shark permit conditional of course upon payment of the permit fee or levy.


case_title: National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. The first was R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427, which related to an extension of the scope of a claim for breach of contract based upon an alleged misrepresentation without the respondent to the proceedings having been given notice of the misrepresentation as the basis for that extended claim, and therefore having been extended an opportunity to meet that case. The second was Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571, where there had occurred an omission, albeit inadvertent, to notify a debtor of an adjourned hearing date of a bankruptcy petition, and where an order for sequestration nevertheless was made. The third was Hoskins v Van Den-Braak (1998) 43 NSWLR 290, where a person was held entitled to have a judgment set aside unconditionally, in circumstances where the claim on which the judgment was based was not served on that person or on anyone retained on that person's behalf. The fourth was Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 at [33] , where it was held that written notice of a hearing date did not reach an applicant for relief in time, and an incorrect recording of his telephone number had frustrated attempts to communicate with that person by telephone, and further that the tribunal decision-maker was unaware of the absence of notice of the hearing. As I have already observed, none of those particular cases involved the operation of a statutory scheme such as Mr Rhodes must here address.


case_title: Hoskins v Van Den-Braak (1998) 43 NSWLR 290


case_title: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28


case_text: v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. It was next contended by Mr Rhodes that '[a]n important factor relevant to the scope of natural justice is the consequence of the decision'. In Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at 117, Weinberg J enunciated the following principle: is well established that the seriousness of a decision for an affected individual is one of the main considerations determining the application of procedural fairness. Generally speaking, the requirements of procedural fairness will be heightened in proportion to the gravity of the consequences involved.' It was said in that context that if AFMA was right to refuse Mr Rhodes a new permit on 'no new permits' or 'cost recovery' grounds, the consequence of cancellation of his permit would be his effective expulsion from the fishery, that being described as 'a very serious consequence to Mr Rhodes'. Apart from the particular elements of the statutory scheme here relevantly required to be adjectivally observed, there was here involved an absence of response on his part over an extended period of time involving what the Tribunal characterised in terms of inevitable consequences 'obvious to him' . The reality of Mr Rhodes' circumstances of default was such as to render attenuated his invocation of the scope of natural justice inherent in the submission. A further matter submitted by Mr Rhodes not to have been considered by the AAT, but nevertheless said to have been relevant to the circumstances in which he found himself to be placed, was that his long involvement in the industry, and the potential effects on him of any decision to cancel the permit, gave rise inherently to a legitimate expectation of procedural fairness. The submission begged the question at least as to what was inherently unfair procedurally in the nature and extent of the steps taken and processes implemented by AFMA which merely conformed to the steps and processes required to be put in train in relation to any industry participant who was placed in the same vulnerable position as Mr Rhodes. A yet further factor said here to have prevailed in Mr Rhodes' favour against any cancellation of his permit was a lack of urgency in relation to the making by AFMA of its cancellation decision. It was submitted by Mr Rhodes that there was no good reason for AFMA to have made that decision in relation to the cancellation of the permit within a matter of 'weeks after the suspension'. It was further submitted that the Management Act expressly contemplated the indefinite suspension of a permit, and there was no requirement even to consider cancellation after a suspension. However it was plainly within AFMA's prerogative to determine whether it should exercise juridical powers and remedies which had crystallised in operation to the extent that it deceased to be appropriate in the contextual circumstances. Mr Rhodes next submitted that he had been already prohibited from fishing prior to the cancellation of his permit, yet interest on the unpaid levies would continue to accrue at a penal rate. No benefit to AFMA was therefore obtainable from cancellation of the permit, other than AFMA's view that it could thereupon terminate the need for so-called 'internal reconsideration', and that such motivation on AFMA's part would have been improper in any event. It was further submitted that this would have a 'very adverse effect' on Mr Rhodes. It was not however a condition to AFMA's lawful exercise of regulatory authority to endeavour to divine the particular implications of a permit cancellation personal or peculiar to a defaulting permit holder, so long as the requirements of the stipulated procedure were observed. In that regard the AAT found it sufficient in any event that AFMA had made attempts to communicate with Mr Rhodes prior to the cancellation, such attempts consisting of AFMA's letters of 9 May 2001 and 25 May 2001, calling a telephone number listed on AFMA records, and requesting on 5 June 2001 that the local police get in touch with Mr Rhodes. Mr Rhodes submitted in any event that since the AAT did not find that he received any of that AFMA correspondence or had any actual notice of AFMA's intention to cancel the subject permit, and further that the AAT expressly refused to make any finding that Mr Rhodes had deliberately avoided potential creditors, or had received what was described as 'financial correspondence', those factors should have rendered inapplicable any issue otherwise arising as to Mr Rhodes' absence of response to AFMA's communications related to Mr Rhodes' default. Instead it was contended by Mr Rhodes that the AAT took the view that his ignorance of AFMA's intention to cancel his permit was unreasonable. To the extent that that contention did have juridical significance, which I am unable to accept in any event, it is not possible to divine any basis for the extremity of the course which AFMA should have supposedly pursued in an endeavour to communicate relevantly with Mr Rhodes, and to do so prior to exercising its legal rights and remedies.


case_text: The applicants in this matter, Robert McDermott, Maxwell Latimer and Ann Langdon, were defendants in an earlier proceeding before me. That proceeding began as an ex-parte application, filed by Paul Burness as liquidator of Richmond Sales Pty Ltd ("Richmond Sales"), for a warrant under s 530C of the Corporations Act 2001 (Cth). The procedural history of that matter is outlined in reasons for judgment delivered on 8 February 2006: see Richmond Sales Pty Ltd (In Liq) v McDermott [2006] FCA 52 at [2] - [19] . 2 It is unnecessary to review all of the procedural history of the earlier proceeding involving these parties. For the present purposes, the following facts are relevant: • Merkel J issued a warrant on 4 December 2003 and it was served the next day. Pursuant to the warrant, Burness seized seven vehicles • On 24 March 2004, Burness filed an interlocutory application asking that he be directed to sell the seven seized vehicles. • By 15 December 2004, only three vehicles remained in Burness's possession and the subject of dispute. McDermott, Latimer and Langdon, as defendants, opposed the sale of these vehicles. • Burness's application to dispose of the vehicles was part heard on 12 and 13 July 2005. • On 29 August 2005, McDermott, Latimer and Langdon, together with fellow defendants Michael Giuffre, John McDonald and Mary-Ann Martinek, filed an application seeking to set aside the warrant issued on 4 December 2003. • On 10 October 2005, the parties informed the Court that they had reached a settlement concerning Burness's application of 24 March 2004 to dispose of the seized vehicles. The parties requested that the Court make consent orders consistent with the terms of this settlement. Accordingly, amongst other things on that day the Court ordered: "1. The motor vehicle identified as a Rolls Royce Silver Ghost chassis No. 2316 which is in the possession of the Plaintiff be delivered to the Defendant nominated by Walter Percival Edwards at an address in Melbourne specified by him forthwith upon nomination of that Defendant. 2. In the event that the Defendants pay the sum of $33,000.00 to the Plaintiff on or before 31 January 2006 the Plaintiff deliver the motor vehicles identified as a Rolls Royce Phantom II Sedan chassis No. 39GY and a Rolls Royce Silver Shadow II Saloon chassis No. SRH0040192 to the Defendant or Defendants nominated by Walter Percival Edwards at an address specified by him within 48 hours of receipt of the said sum. 2A. In the event that the Defendants fail to pay the sum of $33,000.00 to the Plaintiff on or before 31 January 2006 the motor vehicles referred to in paragraph 2 hereof be the absolute property of Richmond Sales Pty Ltd (in liquidation) and the liquidator of that company be at liberty to sell those vehicles and retain the proceeds of sale as absolute property of the company in liquidation. 2B. Reserve liberty to the parties to apply." • On 10 October 2005, the Court also made orders concerning the timing of submissions regarding the defendants' application of 29 August 2005 to set aside the warrant. • On 8 February 2006, the Court delivered reasons for judgment dismissing the defendants' application to set aside the warrant. 3 On 23 February 2006, the applicants filed this application, under s 23 of the Federal Court of Australia Act 1976 (Cth), seeking that paragraphs 2 and 2A of the orders of 10 October 2005 be varied. The applicants ask the Court to extend the time for payment of the sum of $33,000.


case_text: In his second affidavit, Edwards deposed that: "Pursuant to the Court Orders made by consent on 10 October 2005 the Liquidator failed to deliver Vehicle 2316 to the person that I nominated (as specified in clause 1 of the Orders) until some two weeks after the making of the order. On 31 January 2006 I informed McDermott's Workshop of my trust account details as he had indicated to me that he was providing by direct transfer of funds the amount of $33,000.00 being the sum required to payout the Liquidator pursuant to clause 2 of the 10 October 2005 orders. ... Funds were shown as having been 'cleared' into my trust account on 1 February 2006. I informed the Applicants that I had received the funds into my trust account on 1 February 2006, however, the Applicants indicated to me that the funds were in fact deposited into my trust account on 31 January 2006." Counsel for the applicants submitted that the Court has the power to vary the order under O 35 r 7(2)(c) of the Federal Court Rules 1979 which allows the Court to "vary or set aside a judgment or order after the order has been entered where . . . the order is interlocutory." The applicants argued that the consent orders were interlocutory because they included an order reserving liberty to apply. Counsel for the applicants also relied on O 35 r 7(4) (and, in this connection, Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310) and the inherent jurisdiction of the Court. 9 In the applicants' view, a number of factors support the conclusion that this is an appropriate case to exercise the discretion conferred by O 35 r 7(2) or O 35 r 7(4) or in the Court's inherent jurisdiction. First, so the applicants claimed, the consent orders show that the intention of the parties was that $33,000 be exchanged for the relevant vehicles. Secondly, this money was available to be transferred to the respondents on 31 January 2006 (or at the latest 1 February 2006). Thirdly, according to the applicants, the reason that the money was not delivered on 31 January 2006 was that, contrary to both parties' expectations, reasons for judgment regarding the application to set aside the warrant were not delivered until after than date. Fourthly, the money is available to be paid immediately. Fifthly, the respondents would not, so the applicants said, be prejudiced by a variation in the order. Sixthly, having regard to the liquidator's own delay in delivering vehicle 2316, there should have been no difficulty in the parties agreeing to disregard the delay on the applicants' side. Finally, if the time were not extended, then the liquidator would, so the applicants said, receive a windfall gain not intended by the settlement giving rise to the orders of 10 October 2005. 10 The applicants conceded that they had not paid the $33,000 before 31 January 2006 because they expected a different result in the application to set aside the warrant. They argued that while this view may have been "naïve", they should not suffer prejudice as a consequence. They also sought the costs of their application. 23 The orders in paragraphs 2 and 2A of the orders of 10 October 2005 were final orders with respect to the application of 24 March 2004. Thus, the Court has no power to vary these orders pursuant to O 35 r 7(2). Further, the Court has no power under O 35 r 7(4) to make the orders the applicant seeks. As a Full Court said in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 264 per Lee, Hill and Cooper JJ, regarding O 35 r 7(4), "[c]ritical to the jurisdiction of the court is first that the application not be one in any way to vary or alter the initial order". The applicants seek orders to vary the orders in paragraphs 2 and 2A of the 10 October 2006 orders; and O 35 r 7(4) does not give power to do this. In the face of Full Court authority, the earlier decision in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 is either to be distinguished or is no longer good authority.


case_text: The respondents further submitted that a consent order giving effect to a settlement could only be set aside on grounds that would justify setting aside the contractual agreement on which the settlement was based. In support of this proposition, they referred to Lindon v Stanton (Supreme Court of Western Australia (Adams M), 27 November 1992, BC9200887). 17 The respondents also argued that the applicants received no support from O 35 r 7(4) and nor could they avail themselves of the Court's inherent jurisdiction. They contended that O 35 r 7(4) conferred power to make orders that were truly supplemental and did not confer power to vary or alter the initial order. 18 Ultimately, so the respondent said, the applicants made a decision not to pay before the end of January. This decision was based on the applicants' view that it was not in their interest to pay the money at that time. The respondents submitted that they should not be penalized for the applicants' error. The respondents noted that they would be prejudiced by any variation of the kind sought in the orders of 10 October 2006 because the vehicles were likely to be worth more than $33,000.


case_title: Nicholson v Nicholson [1974] 2 NSWLR 59

case_text: At the hearing, the respondents contended that O 35 r 7(2)(c) did not provide a basis for the orders sought. They submitted that paragraphs 1, 2 and 2A of the orders of 10 October 2005 were final rather than interlocutory. They noted that the orders finally disposed of the subject matter of the 24 March 2004 application. They cited Nicholson v Nicholson [1974] 2 NSWLR 59 in support of the proposition that reservation of liberty to apply, in the context of such orders, is simply a device by which further orders may be made when necessary for the purpose of implementing and giving effect to the principal relief already propounded. The respondents submitted that the reservation of liberty to apply in a final judgment or order did not permit the making of orders materially varying the substance of the order. 15 The respondents submitted that the orders made in paragraphs 1, 2 and 2A of the 10 October 2006 orders were final and unconditional, like the settlement agreement underlying them. Crucially, there was no condition that the settlement was dependent on the outcome of the defendants' application to set aside the warrant. In these circumstances, there was no reason to believe that the delay in payment that the applicants sought was consistent with the orders or the settlement. 22 Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.


case_text: An order is final if it "it finally determine[s] the rights of the parties in a principal cause pending between them": Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; see also the discussion in SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 at [32] - [34] per Lindgren J. There is no question that the orders of 10 October 2005 finally determined the rights of the parties with respect to the liquidator's application to dispose of the vehicles.


case_title: SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785


case_text: Moreover, it is settled law that orders may be final even though the Court reserves liberty to apply: see, e.g., Abigroup Limited v Abignano (1992) 39 FCR 74 at 87-88 per Lockhart, Morling and Gummow JJ; Comcare v Grimes (1994) 50 FCR 60 at 61-62 per Wilcox J; Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119 at 122-125 per Nicholson J; and Nicholson v Nicholson [1974] 2 NSWLR 59 at 63 per Jenkyn J. These cases reveal that liberty to apply does not render a final order any less final: see further Neil J Williams, Civil Procedure at [I 59.01.20] and the cases cited therein.


case_title: Comcare v Grimes (1994) 50 FCR 60


case_title: Maritime Union of Australia v Geraldton Port Authority (No 3) (2001) 106 IR 119


case_text: The orders in paragraphs 2 and 2A of the orders of 10 October 2005 were final orders with respect to the application of 24 March 2004. Thus, the Court has no power to vary these orders pursuant to O 35 r 7(2). Further, the Court has no power under O 35 r 7(4) to make the orders the applicant seeks. As a Full Court said in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 264 per Lee, Hill and Cooper JJ, regarding O 35 r 7(4), "[c]ritical to the jurisdiction of the court is first that the application not be one in any way to vary or alter the initial order". The applicants seek orders to vary the orders in paragraphs 2 and 2A of the 10 October 2006 orders; and O 35 r 7(4) does not give power to do this. In the face of Full Court authority, the earlier decision in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 is either to be distinguished or is no longer good authority.


case_title: Dudzinski v Centrelink [2003] FCA 308

case_text: I would reach the same result even if the relevant orders were interlocutory. It is well established that the discretion conferred by O 35 r 7(2) should be used only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11] per Spender J. The principle of finality of litigation requires courts to exercise great caution when considering whether exceptional circumstances exist warranting the variation of orders: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552 per von Doussa, Moore and Sackville JJ. In this case, the circumstances do not support varying the orders.


case_title: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543


case_outcome: cited

case_text: I am satisfied that the proposed orders are appropriate, bearing in mind the general principles laid down in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993, it referring with approval to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. I will not set out all of the authorities referred to by counsel. Particular reference is made to the decisions of Young J in Australian Competition and Consumer Commission (ACCC) v IPM Operation & Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162, the decision of Tracey J on a separate penalty matter in Australian Competition and Consumer Commission (ACCC) v IPM Operation & Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151; and of the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132.


case_title: Australian Competition and Consumer Commission (ACCC) v IPM Operation & Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 , (2007) ATPR 42-151


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) [2007] FCAFC 132


case_outcome: followed

case_title: Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 , (2004) ATPR 41-993


case_title: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285


case_text: The learned Federal Magistrate, at paras 17 through to and including 22 of the reasons for judgment, canvasses the relevant statutory provisions as they impact on the circumstances of this case. The Magistrate noted correctly, with respect, that the effect of this Court's decision in the Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 324 ; (2000) 97 FCR 407 is that the Tribunal has no jurisdiction to enlarge the time within which an application for review can be made. 7 So much would seem inevitably to follow from the absence of any conferral of such power by the Migration Act 1958 . The Tribunal is a statutory tribunal and possesses no greater jurisdiction than that which Parliament has chosen to confer upon it. Section 412 of the Migration Act 1958 lays down a period within which an application to the Tribunal can be brought. If an application is brought outside that period, then the Tribunal has no ability to extend time, whatever may be the merits either in law or in fact, of the challenge that is sought to be made to the decision of the Minister or his delegate. 8 As was, with respect, correctly highlighted in the submissions made before me on behalf of the Minister, that does not mean that the decision of the Minister or his delegate is completely immune from challenge. The High Court has jurisdiction under s 75(v) of the Constitution to grant a constitutional writ in respect of any legal error made by the Minister or his delegate. What is undoubtedly lost, though, by a failure to institute a proceeding within the time prescribed by s 412 of the Migration Act 1958 , is an ability to have the decision of the Minister or his delegate, in respect of the protection visa application, reviewed on the factual merits.