case_text: These remarks of Mason ACJ which were approved by Gleeson CJ echo the observations made by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622 623. 16 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] (pp 81 82), when referring to the well-known passage in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 at 622 623, Gummow and Hayne JJ said: 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; it is sufficient that the plaintiff show a sufficient 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 [(1968) [1968] HCA 1 ; 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [1968] HCA 1 ; [(1968) 118 CLR 618 at 622]: "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." 17 At [70] to [72] (pp 83 and 84), their Honours went on to explain the similarities and differences between the test expounded in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 and the test articulated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 as follows: 70 When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . 71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried" [1975] UKHL 1 ; [[1975] AC 396 at 407]. That was followed by a proposition which appears to reverse matters of onus [1975] UKHL 1 ; [[1975] AC 396 at 408]: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (Emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application [See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 and the article by Sofronoff, " Interlocutory Injunctions Having Final Effect ", Australian Law Journal, vol 61 (1987) 341.95]. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.


case_outcome: followed

case_title: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR

case_text: In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has 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; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 20 The remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 when adapted to the present case, require the ACCC to show that the balance of convenience and the balance of justice favour the grant of an injunction. 21 These matters require the Court to exercise a discretion.


case_outcome: cited

case_text: In 2006, Hoy Mobile Pty Limited ( Hoy Mobile ) commenced proceedings in this Court against Allphones. Those proceedings ( the Hoy Mobile proceedings ) were heard in February and March 2008 by Rares J. His Honour delivered Reasons for Judgment on 30 May 2008 ( Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810). 33 Hoy Mobile had been a franchisee of Allphones for approximately four years prior to the commencement of those proceedings. 34 The Hoy Mobile proceedings were hard fought. There were many issues requiring determination by his Honour. 35 At the end of his Honour's Reasons for Judgment, his Honour summarised the conclusions which he had reached (see Hoy Mobile Pty Ltd [2008] FCA 810 at [429] [431]). Allphones has appealed from his Honour's decision. That appeal has not yet been heard. It is neither necessary nor desirable for me to comment further on the subject matter of the Hoy Mobile proceedings. At the moment, it is sufficient if I note the date when his Honour delivered judgment (viz 30 May 2008) and the fact that his Honour said that Allphones had to account to its franchisees who were operating under the old franchise agreement for significant sums of money which it had received by way of commissions and rebates. 36 On 25 March 2008, the ACCC commenced proceedings against Allphones, Matthew Donnellan, Ian Harkin and Anthony Baker in this Court (No NSD 408 of 2008) ( the main ACCC proceedings ). The individuals named as respondents in those proceedings are or were employees and directors of Allphones at various times over the period with which the main ACCC proceedings deal. The Statement of Claim in the main ACCC proceedings comprises 89 pages and the Application comprises 25 pages. There are many allegations made in the Statement of Claim concerning Allphones' dealings with its franchisees and its management of the Allphones business of which the franchisees are an integral part. 37 In the main ACCC proceedings, the ACCC makes complaint about a large number of events and actions for which Allphones is alleged to have been responsible and contends that the respondents to those proceedings have contravened ss 51AC , 51AD , 52 and 59 of the Trade Practices Act in the operation of the Allphones franchise system.


case_text: There is a body of authority in this Court which establishes the following propositions: (a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at [24] and [25] (p 503); per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [31] (p 265); per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 59 IPR 435 at [183] (p 487) and per Jacobson J in Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268 (p 53,515) at [918] (p 53,527). (b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-741 (p 40,578) at [22] (p 40,585). This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183]-[185] (pp 487-488) and by Sundberg J in ACCC v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [30] (p 264); and (c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [185] (p 488).


case_text: At [70] to [72] (pp 83 and 84), their Honours went on to explain the similarities and differences between the test expounded in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 and the test articulated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 as follows: 70 When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . 71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried" [1975] UKHL 1 ; [[1975] AC 396 at 407]. That was followed by a proposition which appears to reverse matters of onus [1975] UKHL 1 ; [[1975] AC 396 at 408]: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (Emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application [See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 and the article by Sofronoff, " Interlocutory Injunctions Having Final Effect ", Australian Law Journal, vol 61 (1987) 341.95]. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal. 27 Furthermore, there are some kinds of case where, for the purpose of assessing where the balance of convenience and the balance of justice lie, it is desirable that the Court: "... evaluate the strength of the plaintiff's case for final relief" (Per McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536A-D) 28 In Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, McLelland J observed that one such class of case is where the decision to grant or refuse the interlocutory injunction which is claimed will in a practical sense determine the substance of the matter in issue on a final basis. Another example is where the applicant for relief is seeking to restrain a public authority or officer from performing his statutory duty. 29 The substance of the matter in issue between the ACCC and Allphones in the present case is whether Allphones should be restrained from conducting itself or from threatening to conduct itself in a particular fashion in relation to the allocation of stock being conduct which is said to be intended to bully certain franchisees into complying with Allphones' wishes and demands for the purposes of and during the negotiations and mediation spawned by the Franchising Code Notice of Dispute which it served in August 2008. Those negotiations and that mediation have commenced but have not yet concluded. They are likely to conclude before the Court can determine the ACCC's claims for final relief in the proceedings. 30 In those circumstances, I think that the case is the kind of case which falls within the principle explained by McLelland J in Kolback 8 NSWLR 533. Accordingly, I will apply that principle. 31 As I understand that principle, I am required to have a closer look at the applicant's case than I might otherwise be required to do when considering and determining an application for interlocutory injunction in order to come to a view as to whether the applicant's case for final relief is sufficiently strong to justify the granting of the interlocutory relief sought. 116 Senior Counsel for Allphones submitted that his client was the victim of a series of " verbals ". As I understood that submission, it was contended on behalf of Allphones that the entire or a substantial part of the case which the ACCC was putting depended upon evidence of conversations given by disgruntled franchisees, which was, for the most part, denied by Allphones and which could not be properly tested in an interlocutory hearing. The submission was then refined somewhat in order to invoke the principle explained by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 to which I have referred in [28] to [31] above. 117 As I have already indicated, I propose to apply what McLelland J said in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533. 118 However, I do not think that a correct application of that principle requires me to discount heavily or ignore the evidence given by the deponents of the affidavits which were read by the ACCC at the hearing of the present application. 119 The conversations to which the witnesses deposed took place in a context. To a large extent, that context was governed by the events which had occurred during the course of 2008 to which I have referred above and by the contents of the Baker email. Whilst the conversations have been denied for the most part, they are not of such a character as to lead me to conclude that the ACCC's case for final relief is a weak one.


case_text: It must also be remembered that, as is the case with other sections of the TPA contained in Parts IVA , IVB and V, s 51AC establishes a norm of conduct. Failure to observe that norm has consequences provided elsewhere in the Act. (See the judgment of the High Court in Master Education Services Pty Ltd v Ketchell [2008] HCA 38 ; (2008) 82 ALJR 1322 at [28] to [32] (pp 1329-1330) and the cases cited in those paragraphs).


case_title: Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268


case_text: In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 23 In the present case, I must assess and compare the prejudice and hardship likely to be suffered by Allphones, any relevantly affected third parties and the public generally if an injunction is granted, with that which is likely to be suffered by Allphones' franchisees who remain on the old franchise agreement, any other relevantly affected third parties and the public generally if no injunction is granted. In determining these matters, I must make an assessment of the likelihood that the final relief (if granted) will adequately compensate and protect those affected by the alleged wrongful conduct for the continuing contraventions which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted. 24 Section 80(6) of the TPA provides that, in a case such as the present, the Court shall not require the ACCC to give any undertaking as to damages. 25 This provision puts the ACCC in a privileged position when compared with the position of ordinary litigants. 26 In my judgment, in a case where the ACCC seeks interlocutory injunctive relief, it may be necessary to take into account the absence of an undertaking as to damages when the Court comes to determine where the balance of convenience and the balance of justice lie. The extent to which this circumstance will play a role in any particular case will be governed by all of the circumstances of the case including the nature and strength of the ACCC's case as presented at the interlocutory stage.


case_text: The appellant requires leave to amend his pleadings pursuant to Order 52 Rule 21(3) of the Federal Court Rules . The principles relating to a grant of such leave were considered by the Full Court of this Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 where the Court observed that ' exceptional circumstances' might exist to justify such grant. The Court said at [18]: 'The reference to "exceptional circumstances" indicates that there remains a discretion in the court to entertain a new ground of appeal if it is expedient and in the interests of justice to do so...' 15 The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings.


case_outcome: considered

case_text: There is no evidence that the Tribunal provided any notification to the appellant, in advance of the hearing date, that the statutory declaration would be relied upon. Further, the Tribunal was not invited by the appellant by a written communication before or at the hearing to consider the information in his declaration which would have activated the exemption: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 , nor did the appellant bring the statutory declaration to the hearing. These facts suggest that the statutory declaration was not regarded by the appellant as being significant in his application before the Tribunal.


case_text: The information contained in the statutory declaration formed part of the reasons for the Tribunal's decision. It was not uncontentious, foundational or basic, nor was it information which was given to the Tribunal by the appellant to enliven the exception under s 424A(3)(b). The fact that the appellant was asked to supplement the information in his statutory declaration orally in answer to the Tribunal's questions and the fact that the appellant referred to the statutory declaration in the course of these answers is not sufficient to constitute ' giving' the document to the Tribunal: see SZFXG; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , which was approved by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 225 [20] per Moore J, with whom Weinberg J (at 252 [157]) and Allsop J at 262 [219] agreed. Accordingly s 424A(1) of the Act applied to the information the appellant had provided to the Tribunal in answer to its questions.


case_text: On 18 August 2006 the hearing of this matter was adjourned pending delivery of the decision of the Full Court of this Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; [2006] 156 FCR 419 which considered the nature of the Tribunal's obligations under s 424A of the Act. The hearing was again adjourned on 13 February 2007 to 28 May 2007 so that a copy of the transcript of the Tribunal's hearing could be provided to the Court. 10 At the hearing on 28 May 2007 the appellant sought leave to file an Amended Notice of Appeal which claimed as follows: '1. The Refugee Review Tribunal breached s 424A(1) of the Migration Act 1958 (Cth), in that the information provided by the Appellant in his Statutory Declaration sworn 10 February 2003 in support of his protection visa application was not republished to the Tribunal and accordingly that information does not fall within the exception in s. 424A(3). ' For the reasons set out hereunder the Court granted leave to the appellant to rely on the Amended Notice of Appeal. 11 The Minister submits that NBKT determined that for the purposes of s 424A(3)(b) no distinction should be drawn between the circumstance in which an appellant provides information to the Tribunal 'in chief' rather than orally in response to questions asked by a Tribunal member during a hearing before the Tribunal. Accordingly, to satisfy the requirement of s 424A(3)(b) of the Act, it is sufficient for the appellant to provide information orally to the Tribunal, and there is no requirement that such information be provided in writing. 13 The appellant submits that NBKT establishes that if the information relied upon by the Tribunal was communicated by an applicant by way of responses to questions asked by the Tribunal concerning the protection visa application, the exception provided by s 424A(3)(b) of the Act will apply if the nature of the information is uncontentious, foundational or basic. Conversely, the exception in s 424A(3)(b) will not apply if the nature of the information relied upon by the Tribunal is contentious, complex and diverse. 15 The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings. 17 In SZFXG the Full Court considered whether s 424A(3)(b) of the Act applied in respect of a historical fact, namely the date of the appellant's arrival in Australia, and held that the exception did apply to such technical details. The decision of the Full Court in NBKT adds a further refinement to the principles established by the authorities considered in SZFXG . The Court in NBKT rejected the narrow approach to s 424A and clarifies the circumstances in which the exception provided by s 424A(3)(b) may operate.


case_text: McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [63] referred to the rationale underlying the statutory requirements of s 424A(1) of the Act in relation to evidence adverse to an appellant provided by a third party. His Honour found that such provision was intended to ensure that an appellant is aware of the significance of such information to the Tribunal's determination. He said: 'So it is in the interests of fairness that the applicant should have the information in writing and should be given an opportunity to comment on it. For that reason s 424A should not be regarded as spent because the applicant is present at the hearing.' 26 In this instance his Honour's observations provide a guide for the interpretation of s 424A of the Act, namely, where the Tribunal intends to rely upon information which is more than historical fact or other basic detail, the appellant is entitled to be given notice that the Tribunal will rely upon such information. 27 There is no error in the judgment in Emmett FM. However arising from the Amended Notice of Appeal, the Court finds that the appellant was entitled to receive notice from the Tribunal that it would be relying on the statutory declaration for the purposes of determining his application for review. The Court finds the Tribunal's failure to provide such notification breached s 424A(1) of the Act and accordingly the appeal is upheld. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 29 June 2007 Counsel for the Appellant: T. Baw Counsel for the Respondent: T. Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 August 2006, 28 May 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/827.html


case_text: The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings.


case_title: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214


case_text: The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302 at [49] - [50] . For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645.


case_text: The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302 at [49] - [50] . For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645. 17 In SZFXG the Full Court considered whether s 424A(3)(b) of the Act applied in respect of a historical fact, namely the date of the appellant's arrival in Australia, and held that the exception did apply to such technical details. The decision of the Full Court in NBKT adds a further refinement to the principles established by the authorities considered in SZFXG . The Court in NBKT rejected the narrow approach to s 424A and clarifies the circumstances in which the exception provided by s 424A(3)(b) may operate.


case_title: SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611


case_title: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302


case_text: Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 10 On behalf of the media organisations requesting access it was submitted that the principle of the open administration of justice requires that the proceedings be conducted in public which in turn enables fair and accurate reports of the proceedings to be published. The risk of dissipation of assets is a fundamental consideration when an application is made under s 1323 of the ASIC Act. The principle of open justice, it was said, requires the evidence for the cause of the apprehension to be made available unless there are specific and compelling reasons for suppressing it. In this respect reliance was placed upon Australian Securities and Investments Commission v Rich [2001] NSWSC 496 per Austin J at [36]. 11 In answer to the defendants' arguments about the admissibility of the s 19 transcripts, the media organisations contended that the issue of admissibility was not relevant to the question of access. It was submitted that s 68(3) of the ASIC Act would apply in circumstances where before the making of the statement or signing of a record the person claims the statement or signing of the record may tend to incriminate that person. Reliance was placed upon s 68(2) of the ASIC Act in that respect. 12 In answer to the contention that the transcripts should not be available for inspection because ss 22 and 25 of the ASIC Act had indicated a legislative intention to protect the secrecy of the examination, it was submitted that the fact a process conducted under statute prescribes privacy does not mean that privacy prevails when the matter becomes subject to the jurisdiction of the Court. 20 In connection with ex parte proceedings I refer also to the observation by Austin J in Rich at [26] that: 'The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it. In my view, that is so important a consideration that, unless there is some specific or obvious prejudice of another kind, the mere consideration of prematurity, in the sense that the plaintiff's evidence has not been tested or answered, is insufficient to prevent the Court from making available to outsiders, including in particular the media, the affidavits relied upon in ex parte circumstances leading to significant relief.' 21 The question whether affidavit evidence relied upon in ex parte proceedings may or may not be admissible in later proceedings or in criminal or penalty proceedings has little bearing, of itself, on the question of access. There may be issues of unfair prejudice that might be advanced but there is nothing specific upon which to base any such apprehension in this case. There are no criminal proceedings, nor any penalty proceedings pending. It is a speculative exercise to weigh the possibility of prejudice by reference to the possibility of such proceedings in the future. 22 It is not unusual that criminal proceedings, in matters of great public interest, are preceded by publicity about the events that led to their institution. To the extent that such proceedings are conducted before a jury, appropriate directions can be given by the judge. If the publicity is of such proximity in time and of such a character that the prejudice cannot be overcome by judicial direction and that a fair trial is not possible, then a stay can be sought. It is, however, not a matter for the Court to anticipate, on entirely speculative grounds, that this is an element of a generalised risk which will operate as an effective bar to the application of the principle of open justice in this case.


case_text: Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 16 The principles governing access to affidavits which have been received into evidence were discussed recently by Sackville J in Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 , a judgment which was delivered on 5 October 2005. The point of departure adopted by his Honour was the proposition stated by the Full Court in R v Davis (1995) 57 FCR 412 at 514: 'Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.' His Honour referred to other authorities to like effect. 18 I agree, with respect, with the following observation by Sackville J at [27]: '...unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under FCR O 46 r 6 will have to take into account the particular circumstances of the case. I agree ... that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court's determination of the issues arising the proceedings (cf Evidence Act 1995 (Cth), ss 55 , 56 (stating the test of relevance)).' His Honour went on to say that in exercising the discretion conferred by O 46 r 6(iv) he considered that considerable weight should be given to the principle of open justice. 19 In that case however, his Honour recognised that there was a significant risk that if non-confidential exhibits were released to the media as soon as they were admitted into evidence some parties might be subjected to a forensic disadvantage. Thus the publication in the media of the substance of some exhibits might deprive a party of a legitimate forensic advantage when it came to cross-examination of particular witnesses.


case_text: Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 16 The principles governing access to affidavits which have been received into evidence were discussed recently by Sackville J in Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 , a judgment which was delivered on 5 October 2005. The point of departure adopted by his Honour was the proposition stated by the Full Court in R v Davis (1995) 57 FCR 412 at 514: 'Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.' His Honour referred to other authorities to like effect.


case_text: Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 17 Open justice was described in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 by Spigelman CJ as a principle and not 'a free-standing right'. Access by non-parties to documents filed in proceedings in the Court is governed by the provisions of O 46 r 6. There is a general right to search and inspect documents in the class set out in O 46 r 6(2) unless the Court or a judge has ordered that the document is confidential. The list of documents specified in subrule 6(2) does not extend to affidavits filed in the proceeding. Subrule 6(3) requires that the leave of the court or a judge be given before a non-party can inspect such documents. No distinction is made in that respect between affidavits which have been filed and not read in evidence and affidavits which have been read in evidence. Nevertheless, it is clear that there will be a far stronger case for access by the public to affidavits which form part of the evidence before the Court than there will be to affidavits which are not in evidence.


case_text: Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 23 The privacy of examinations under s 19 of the ASIC Act is principally designed to protect the integrity of the investigative process Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at [33] and [37]. There was no objection taken by ASIC to the access requested when the matter was raised in Court on 7 April. And as the transcripts are in evidence, if only for the purpose of the ex parte application, all parties to the proceedings have the right to see them and to discuss them in an unfettered way with their advisors. 24 In my opinion the objections taken by the defendants to the inspection of the affidavits relied upon in these proceedings thus far are generic in character and do not identify any particular basis upon which I should refuse access to them. 25 As to affidavits subsequently filed and not yet in evidence, I will not allow access until after the hearing tomorrow when their status as evidence or otherwise is clarified. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice French. Associate: Dated: 11 April 2006 Counsel for the Plaintiff: Mr S Owen Conway QC and Mr Stack Solicitor for the Plaintiff: Australian Government Solicitor Counsel for the Second Defendant: Solicitors for the Second Defendant: Mr ML Bennett Lavan Legal Counsel for the Third and Fourth Defendants: Solicitors for the Third and Fourth Defendants: Mr N Gentilli Jackson McDonald Counsel for the First, Fifth, Sixth, Seventh and Eighth Defendants: Solicitors for the Fifth, Seventh and Eighth Defendants: Solicitors for the First and Sixth Defendants: Solicitors for John Fairfax Holdings Limited, West Australian Newspapers Ltd and Nationwide News Ltd: Mr GR Donaldson SC Clavey Legal Freehills Edwards Wallace Date of Submissions: 10 and 11 April 2006 Date of Ruling: 11 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/407.html


case_outcome: distinguished

case_text: Counsel also said that it was necessary to look at the business as a whole, to the extent it engaged in infringing activities, and not at separate product lines. The analysis, he said, should take into account GMCA's business activities which infringed both patents. The infringer is treated as if he conducted his business on behalf of the patentee. He relied on the decision of Laddie J in Celanese International Corp v BP Chemicals Ltd [1999] RPC 203 and in particular a passage at [36] where his Lordship said: An account of profits is very different [from damages]. Instead of looking to the harm inflicted on the plaintiff it considers the profit made by the infringer. The defendant is treated as if he conducted his business and made profits on behalf of the plaintiff. A number of consequences flow from this. One of them is that the maximum payment which can be ordered is the total profit made by the defendant. It may be that that figure far exceeds the damage suffered by the plaintiff as was pointed out in Colburn v. Simms [1843] EngR 542 ; (1843) 2 Hare 543. The hope of obtaining more is the normal reason why plaintiffs elect an account in those comparatively rare cases in which they do so. Furthermore there is only one profits "pot". If different plaintiffs seek accounts in respect of different infringing activities of a defendant within a single business, the totality of the profits ordered to be paid should not exceed the total profits made by the defendant in that business. 10 Celanese involved an account of profits for infringement of a patent for an improved method for the manufacture of acetic acid with reduced iodide content. The infringer used the patented process in two separate factories, with profit in one but not the other (see at [32]). The main dispute in the case was that the infringer argued for an "incremental" approach, ie the difference between the profits in fact made and the profits, if any, that would have been made if a non-infringing process were used (at [16]). The patentee argued for an "apportionment" approach in which all profits are recoverable, subject to apportionment of those profits between those to which the infringement contributes and the remainder (at [25]-[28]). 11 Laddie J, in a very detailed discussion of principle and authority (at [35]-[54]), adopted the apportionment approach. His Lordship then discussed the application of the apportionment approach to the facts of the case (at [77]-[130]). 12 The facts in Celanese are quite different from the present case where no apportionment based on infringing and non-infringing parts of T1 or T2 is claimed. The passage quoted at [9] above deals with the situation of different infringing activities within a single business, but only to make the points that the maximum payment is the total profit made and that if there are several plaintiffs they are limited to the one "pot" of profit. The present case does not raise such issues. What is relevant to the present case is a passage at [33] where Laddie J said: The general proposition that nothing is payable to the plaintiff if the defendant's business is loss-making ignores the possibility of a case in which those loss-making activities can realistically be treated as a sequence of separate and self-contained businesses where profits made on one are obliterated by losses on others so that, looked at as a whole, the profits attributable to infringement are hidden. In such a case it may be possible to disentangle the profits made on the infringing business and order them to be paid to the plaintiff notwithstanding the losses made elsewhere. It was not suggested that any such analysis was possible on the facts of this case. 13 The present case is a straightforward one and consistent with the hypothetical example discussed by Laddie J. GMCA made a profit on some infringements but a loss on others. It should disgorge the profits it made. It would be ironic in the extreme if GMCA could take the benefit of its own infringing conduct in respect of T2 by setting off the losses made in such activity against the profits on the T1 infringements which it is required to disgorge to Black & Decker.


case_text: While Leplastrier was the subject of some criticism by the majority of the High Court in Dart Industries Inc v The Décor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 115, that was on a quite different point, namely the allowance of a proportion of overhead expenses. As has already been indicated, that is not an issue in the present case. A claim for a proportion of overhead expenses has been made by GMCA and accepted by Black & Decker.


case_outcome: applied

case_text: The point was specifically dealt with by Harvey CJ in Equity in Leplastrier & Co Ltd v Armstrong-Holland Ltd (1926) 26 SR (NSW) 585 at 591-2. The case concerned infringement of a patent for concrete mixing machines. His Honour said: Every sale of a machine gives the plaintiff a separate right to recover profits made on the sale of that machine, and the plaintiff has a right to require that he shall have details of the sale and cost of every individual machine. That is the enquiry that is directed. If the defendant has made a profit on some machines and a loss on others he cannot and this seems too clear for argument claim to be allowed the losses he has suffered on the sale of machines. What he has to account for is the profits on any machines on which he happens to have made a profit. In Leplastrier the losses the infringer sought to set off were made on sales of non-infringing products (see at 592). However, for the reasons already stated, the present case seems stronger against allowing any set off. 15 While Leplastrier was the subject of some criticism by the majority of the High Court in Dart Industries Inc v The Décor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 115, that was on a quite different point, namely the allowance of a proportion of overhead expenses. As has already been indicated, that is not an issue in the present case. A claim for a proportion of overhead expenses has been made by GMCA and accepted by Black & Decker.


case_outcome: discussed

case_title: Busch v Stevens [1963] 1 QB 1

case_text: When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise "a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks": Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey & Co Ltd v G H Hirst & Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.


case_title: Carruthers, Re; Ex parte Goodwin (1969) 70 SR (NSW) 175

case_text: However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.


case_text: The transfer order was a mistake. When a plaintiff claims a sum by way of damages which is greater than the sum which a court of inferior jurisdiction is entitled to award, the case should not be transferred to the inferior court unless, perhaps, it is quite clear that the amount claimed will not be recovered. Indeed, where an action is commenced in an inferior court and it appears to that court that the damages which a plaintiff seeks exceed the limit which the inferior court is able to award, it is the duty of that court to transfer the case to a court of competent jurisdiction. Here it is true that the prosecutrix had not stated definitely that her claim exceeded $200,000. It was, I suppose, possible that she may have limited her claim to one that could be entertained by the Federal Magistrates Court. But that possibility was so remote that the action should not have been transferred. Nothing said in Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230 is inconsistent with this view.


case_title: Derrick v Williams (1939) 55 TLR 676


case_title: Farquharson v Morgan [1894] 1 QB 552

case_text: At one time it was accepted that where there had been an apparent excess of jurisdiction by an inferior court a writ of prohibition would issue as of right. Even the acquiescence of the prosecutrix in the exercise of the inferior court's jurisdiction could not preclude her from applying for the writ: see eg Farquharson v Morgan [1894] 1 QB 552. Now it is clear that the issue of any of the constitutional writs is discretionary and, in an appropriate case, relief may be refused even if the grounds for the issue of the writ be made out: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372. Nevertheless, I am bound to say that it would require a strong case before a supervising court would permit an inferior court to proceed with matters in respect of which it apparently has no jurisdiction. 15 However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.


case_title: Hyams v Stuart King [1908] 2 KB 696


case_title: J Leavey & Co Ltd v G H Hirst & Co Ltd [1944] KB 24


case_title: Madden v Madden (1996) 65 FCR 354


case_title: McNamara, Re; Ex parte Browne (1967) 68 SR (NSW) 188


case_text: I will now explain why the Federal Magistrates Court had no jurisdiction to entertain the claim under s 51AB. By Ch III of the Constitution federal Parliament is given power to create federal courts and to invest them with federal jurisdiction, including jurisdiction which is exclusive of the jurisdiction of other federal courts: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457. The jurisdiction which may be conferred on a federal court is in respect of federal subject matters, that is matters of the kind mentioned in ss 75 and 76 of the Constitution . The jurisdiction of a federal court is not, however, confined to matters which are expressly conferred on the court. It will include what is sometimes referred to as "accrued jurisdiction" and, in the case of both the Federal Court and the Federal Magistrates Court, it also includes "associated jurisdiction": Federal Court of Australia Act 1976 (Cth), s 32 ; Federal Magistrates Court Act 1999 (Cth), s 18. As to the distinction between "accrued jurisdiction" and "associated jurisdiction" see Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261. (See also WMC Gummow, "Pendent Jurisdiction in Australia Section 32 of the Federal Court of Australia Act 1976" (1979) 10 Federal Law Review 211; L Zines, "Federal, Associated and Accrued Jurisdiction" in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System , Melbourne University Press, 2000, p 265).


case_title: R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456


case_text: Next it was submitted that the prosecutrix had not availed herself of the right to apply under r 16.05(2) of the Federal Magistrates Court Rules to set aside the judgment that was entered in her absence. The authorities say, however, that if the excess of jurisdiction of the inferior court is clearly shown the fact that there is another remedy is in general of no consequence: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185, 194. 17 The prosecutrix is entitled to the relief she seeks but not, I think, to any costs, for if she incurred any that has been occasioned not by any fault of the University. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 4 April 2006 Prosecutrix appeared in person. Counsel for the Respondent: Mr C Caleo Solicitor for the Respondent: Minter Ellison Date of Hearing: 28 February 2006 Date of Judgment: 4 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/361.html


case_text: At one time it was accepted that where there had been an apparent excess of jurisdiction by an inferior court a writ of prohibition would issue as of right. Even the acquiescence of the prosecutrix in the exercise of the inferior court's jurisdiction could not preclude her from applying for the writ: see eg Farquharson v Morgan [1894] 1 QB 552. Now it is clear that the issue of any of the constitutional writs is discretionary and, in an appropriate case, relief may be refused even if the grounds for the issue of the writ be made out: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372. Nevertheless, I am bound to say that it would require a strong case before a supervising court would permit an inferior court to proceed with matters in respect of which it apparently has no jurisdiction.


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


case_title: Roberts v Humby (1837) 3 M&W 120


case_title: Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261


case_outcome: affirmed

case_text: the grounds of appeal nor the submission filed prior to the hearing on behalf of the appellant isolate any appealable error in the decision of the Federal Magistrate from which the appeal is brought ( SZIUE v Minister for Immigration & Anor [2006] FMCA 1551). Rather, there is a repetition of complaints made in the proceedings in the Federal Magistrates Court concerning the proceedings of the Refugee Review Tribunal (the Tribunal). Each of those complaints was properly considered and disposed of in a reasoned decision by Scarlett FM. Having read the comprehensive submissions of counsel for the Minister I would be content to simply say that no basis has been put forward to demonstrate any error in the reasons of the Federal Magistrates Court.


case_outcome: referred to

case_text: because of the repetition of complaints as to the manner in which the hearing was conducted, in effect alleging failure to accord procedural fairness and bias, I have read the transcript of what occurred at that hearing in the light of the later reasons of the Tribunal and in the light of the nature of the complaints made in the proceedings in the Federal Magistrates Court and repeated in this Court. I have also taken into account the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; 231 ALR 592. Having done so, I agree with the submission by counsel for the Minister that there is nothing in that decision which causes any disquiet as to whether there was lack of procedural fairness or bias in the present circumstances. Scarlett FM adequately dealt with the criticisms of the Tribunal's procedure. However, one aspect of the matter concerned me. The appellant's basic case was that he feared persecution if he returned to China on account of his practising the Christian religion in association with an unregistered church. He claimed to have been converted to Christianity by a fellow labourer in a construction gang who spread the gospel amongst gang members who met and studied the Bible at secret gatherings. He was baptised by a priest organised by the fellow labourer who also led the group into seeking to spread the gospel to other labourers and local villagers with religious propaganda materials. This, he claimed, led to persecution at the hands of local authorities. This caused him to flee China and come to Australia. He claims to have practised Christianity at a local Sydney church since arrival in Australia. During the course of the hearing the Tribunal member referred to some particular country information and made it clear that she had difficulty in believing that studying the Bible with a small group of workers, not being of a particular denominational group or of a particular belief, would be regarded as a church in the eyes of the Communist government.


case_text: is an appeal against a judgment of a Federal Magistrate delivered on 21 May 2009 ( SZMXP v Minister for Immigration and Citizenship [2009] FMCA 495) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ( the Tribunal ), made on 24 September 2008 and handed down on 16 October 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. The appellant is a citizen of Bangladesh, who arrived in Australia on 21 February 2008. On 3 March 2008 the appellant lodged an Application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the appellant's Application for a Protection visa on 30 May 2008. On 23 June 2008, the appellant applied to the Tribunal for a review of that decision. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution because of his involvement with the Awami League in Bangladesh. The appellant claimed that he joined the student wing of the Awami League in 1989 while still at school, was elected president of the first year committee of the Bangladesh Chattra League at his college in 1991, and was elected General Secretary of the Janjira Thana Awami League Committee in 1994. He claimed that in 1996 he was elected an Executive Member and President of the Shariatpur District Awami League Committee. The appellant also claimed that in 2001 the BNP and other Muslim fundamentalists declared him a stranger in the area where he lived and threatened that he would be killed by a bomb blast if he did not cease to act on behalf of the Awami League. He stated that he went to the police in light of these threats, but that the police were reluctant to help him because of his Awami League involvement. He claimed that the police advised him that, if he did not leave the area, they would arrest him as they had received a complaint against him. He claimed that he fled to Dhaka, where a senior party figure organised work for him in Singapore. He claimed that, after he fled his home, BNP-Jammat activists destroyed his house and threatened his family members and that the police came to his house on a number of occasions to arrest him. He stated that he returned to Bangladesh on 3 February 2008 following the appointment of a caretaker government there. He claimed that, upon his return on that occasion, the police went to his home to arrest him and that, on 18 February 2008, he again fled to Singapore, from where he then travelled to Australia. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said ( SZMXP [2009] FMCA 495 at [7] ): In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO . Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC , there was no breach of s.424 or s. 424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order.


case_text: 2 raises considerations on the merits and questions of fact. The conclusion which the Tribunal reached, it seems to me, was open to it. The appellant has submitted that the Tribunal did not consider the reality of the chance of his persecution because of his political opinions and social activities. However, a fair reading of the Tribunal's reasons makes clear that these matters were considered, and considered in detail. At the heart of the Tribunal's conclusion in this respect, as I have already mentioned, are questions of fact and credibility, which are matters for the Tribunal alone (see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 ; and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).


case_title: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10


case_text: additional matter raised in the appellant's Written Submission is also a matter which I think the appellant has failed to make good. The Tribunal used appropriate means to contact the officer in charge at the Jagira Police Station and received a communication from that person to the effect that the alleged charges were not genuine. I do not think that this is a case where further investigation on the part of the Tribunal was required (see Prasad v Minister for Immigration and Citizenship [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170).


case_text: the Federal Magistrate, the appellant claimed that the Tribunal had erred because it had failed to comply with s 424(3)(a) and s 424B of the Migration Act 1958 (Cth) ( the Act ). The Federal Magistrate took the view that these points were covered by the decision of the Full Court of this Court in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407. The Federal Magistrate also relied upon a decision of his own in SZNEC v Minister for Immigration and Citizenship [2009] FMCA 432. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said ( SZMXP [2009] FMCA 495 at [7] ): In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO . Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC , there was no breach of s.424 or s. 424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order. The Federal Magistrate, in my view, correctly applied the principles to be found in SZLPO [2009] FCAFC 51 ; 255 ALR 407. In substance, the following can be gleaned from SZLPO [2009] FCAFC 51 ; 255 ALR 407: (1) Information captured by s 424(2) of the Act must be information additional to information previously given to the Tribunal by the invitee ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [99] [100]); (2) The word "person" in s 424(2) means a "natural person" ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [103] [108]); (3) The word "person" in s 424(2) is limited by reference to a person whose identity is known at the time of the extending of the invitation ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [109] ); and (4) A document is not "information," although it may contain information, and therefore s 424(2) does not apply to an invitation to a person to supply a document to the Tribunal ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [110] [114]). In SZLPO [2009] FCAFC 51 ; 255 ALR 407 , the Full Court noted that in some circumstances, DFAT could be treated as an agent of the Tribunal. The Court noted (at [118]) that, where the invitation from the Tribunal leaves it to the recipient of the invitation to determine who to approach, it could not be said that the recipient of the invitation was the agent of the Tribunal. However, at [119] [120], the Full Court went on to say that, where the invitation from the Tribunal requests the recipient to contact a particular person, this circumstance might well suggest that the recipient was the Tribunal's agent. In the present matter, the Tribunal wrote to DFAT and requested that DFAT provide advice on the authenticity of various documents. DFAT replied, advising the Tribunal that it was highly unlikely that a judge would issue one of the letters under consideration and that it was easy in Bangladesh for someone to hire an advocate to issue letters such as the letter submitted by the appellant. DFAT further advised that the officer in charge of the Jagira Police Station in Shariatpur had described the First Information Report and charge sheet as fraudulent and had confirmed that those papers could not be found in the official record kept at that police station. The Tribunal then wrote to the appellant, pursuant to s 424A(1) of the Act, advising him of the content of the DFAT report and putting a series of matters to him that might influence the Tribunal's decision when it was ultimately called upon to decide his application. The appellant had an opportunity to respond to the letter and he did so. His response was that the documents which he had submitted were genuine. In the end, as I have already mentioned, the Tribunal did not accept a great deal of what the appellant had to say in support of his claims. These were all essentially findings of fact. The Federal Magistrate found that, because of the binding nature of SZLPO [2009] FCAFC 51 ; 255 ALR 407 , he was bound to conclude that the Tribunal had not breached s 424 or s 424B of the Act. His Honour also held that s 424(2) of the Act did not apply because the Tribunal was not seeking additional information from a natural person. His Honour also found that DFAT was not acting as the agent of the Tribunal. In my view, the conclusions reached by the Federal Magistrate were correct. In my view, s 424 does not apply in the circumstances of the present case, for the reasons which the Federal Magistrate gave. In addition, the substance of the DFAT report and the sources of the information contained in that report were disclosed to the appellant in the letter which the Tribunal wrote to him and he was given appropriate particulars of those matters. Accordingly, for these reasons, I do not think that the appellant has made out Ground 1.


case_text: the Federal Magistrate, the appellant claimed that the Tribunal had erred because it had failed to comply with s 424(3)(a) and s 424B of the Migration Act 1958 (Cth) ( the Act ). The Federal Magistrate took the view that these points were covered by the decision of the Full Court of this Court in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407. The Federal Magistrate also relied upon a decision of his own in SZNEC v Minister for Immigration and Citizenship [2009] FMCA 432. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said ( SZMXP [2009] FMCA 495 at [7] ): In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO . Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC , there was no breach of s.424 or s. 424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order.