case_text: ground upon which the winding up itself of the company is sought is that specified in s 461(1)(k) of the Corporations Act , namely the just and equitable ground. My attention has helpfully been drawn to a decision of Barrett J in CIC Insurance Limited v Hannan and Co Pty Ltd [2001] NSWSC 437 ; (2001) 38 ACSR 245 ( CIC Insurance case). At para 10 his Honour notes that there are statements in the cases which call into question the propriety of actions which caused the number of directors of the company to be reduced below the statutory minimum. In CIC Insurance , at para 11, Barrett J opined that: It may be doubted whether these concerns are well-founded, at least insofar as they relate to removal of directors by members. It is not as if disappearance of the whole board leaves the company without the means to continue. There is a residual common law power for the members, in general meeting, to appoint directors. His Honour later observes, at para 12, that directors are enjoined during times of economic difficulty in the company to take particular care in the incurring of debts by the company. His Honour cites authority for that. His Honour further notes that such circumstances will generally prompt diligent directors towards the voluntary administration regime in Pt 5.3A. It is evident from the correspondence exhibited to Mr Khatri's affidavit that there has been what one might term a degree of prompting as to the taking of that course. It is also evident that that prompting has not been heeded, for whatever reason. In the CIC Insurance case, at para 13, Barrett J voiced the opinion that: The fact that directors are unable or unwilling to act, so that there is a power vacuum level, is probably not, of itself, sufficient to justify winding up on the just and equitable ground, since it always open to members to appoint directors who can function as a board: Morgan v 45 Flers Avenue Proprietary Limited (1986) 10 ACLR 692. There must be some additional element of corporate paralysis, such as the absence of any prospect of the company continuing to operate: Re Vision Image (Aust) Pty Ltd; Cheng v Yeo (1998) WASC 38. In this case, of course, I am not concerned with the winding up itself, but rather with the appointment of provisional liquidators. Nonetheless, it seems to me that the sentiments voiced by Barrett J at para 13 are pertinent. There is, in my opinion, established on the evidence, a corporate paralysis, and, further, having regard to the subjection of the shares in the company to the charge, every prospect manifested by the present stance of the receivers and managers that the company's shareholder will not be able to alleviate the present power vacuum. It is desirable, having regard to the real prospect, as I assess it, on Mr Khatri's affidavit, of claims against the company and the fact that there is a substantial amount of money in the company's bank account, that the company be under some form of lawful control. The prospective provisional liquidators have, by Mr Khatri's affidavit, frankly disclosed the existence of loans as between Storm Financial and Victorian Families Retirement and Investment Group. Mr Khatri deposes in these terms: The only potential source of conflict that I am able to identify for this court is in relation to the status of the loan account between the company and the plaintiff. I do not, however, believe that any conflict in fact arises because: (a) the receivers and managers have control of the plaintiff's loan account; and (b) the balance of the loan account has been calculated by the independent chief financial officer of both companies, and no uncertainty or dispute exists regarding the debt.


case_outcome: considered

case_text: might, having regard to those sentiments, call into question, on the basis of such authorities, the propriety of the resignation of the last of the directors of the company. That said, though, in the ordinary course of events, it would be possible for the shareholders of a company to remove directors and to replace them. Further, as Cohen J observed in Corpique (Number 20) Proprietary Limited v Eastcourt Limited (1999) 15 ACLR 586 , it would not be a proper exercise of a company's powers, either under statute or under its constitution, to pass resolutions removing directors and not replacing them such that the minimum number required by law was not maintained.


case_outcome: cited

case_text: The bankrupt is not entitled, having been adjudged bankrupt, to bring proceedings against his trustee and other parties seeking to maintain a claim for, if it be his claim, as I say it is not particularised, that the trustee and those other parties maliciously procured the bankruptcy or conspired amongst themselves to cause the bankruptcy to occur: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210. Nor, in my opinion, can the applicant do what the applicant sought to do by seeking to set aside the bankruptcy and have an order for an annulment bring proceedings at the same time against those other parties, if it be the case, for the malicious procurement of the bankruptcy or conspiracy to cause the bankruptcy: Re Coyle and Another (1993) 120 ALR 527. In my opinion, these proceedings are misconceived. The applicant is not entitled in this proceeding to seek damages against the third to ninth respondents whilst at the same time seeking to set aside the order for bankruptcy and seeking an order for an annulment. Whilst he remains a bankrupt he has no right of action of the kind that he seeks to pursue against the third to ninth respondents.


case_title: Re Coyle and Another (1993) 120 ALR 527


case_outcome: referred to

case_text: The test is no longer the one propounded in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The test is now whether there is any reasonable prospect of the party successfully prosecuting the proceeding. 23 In my opinion, there is no prospect at all, let alone a reasonable prospect of the applicant prosecuting the proceeding against the third to ninth respondents for the reasons already advanced. There is no reasonable prospect of the applicant prosecuting the proceedings against the second respondent, who is not the trustee of the applicant's bankrupt estate but the trustee of his wife's bankrupt estate. As I have already mentioned, his wife sought that her application for an annulment be dismissed this morning. I am also satisfied that there is no reasonable prospect that the applicant could prosecute an application for an annulment against the first respondent in the absence of any proper particulars. For all of those reasons, the proceeding is dismissed. 24 Each of the respondents has sought costs against the applicant and on an indemnity basis. In my opinion, this is one of those cases where it would be appropriate to make an order of that kind, having regard to what I have already described as the scandalous allegations in the proceeding which has been brought, and the hopelessness of the proceeding generally.


case_text: On 23 February 2007 I delivered reasons substantially upholding Mr Guest's contentions in this matter. I directed that counsel bring in minutes of proposed orders to give effect to the reasons: Guest v Commissioner of Taxation [2007] FCA 193. 2 Differences have arisen between the parties as to the appropriate calculation of interest for which I have held Mr Guest is entitled to deductions. Written submissions have been filed. 3 Two issues arise: the method of calculation of interest and the application of sale of fruit proceeds. Depending on which approach is correct as to each issue, Mr Guest may have been under no liability at all to Rural Finance as at 31 March 1991 in which case no deductions will be allowable for the tax years in question (1998 2001 inclusive). Alternatively, there may be a liability which will result in a deduction for substantially less than the amounts claimed.


case_outcome: affirmed

case_text: This is an application for leave to appeal from a judgment of Driver FM of 30 October 2006, SZJBT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1615. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal dated 30 May 2006 to refuse to grant a protection visa to the applicant. The Magistrate, under rule 44.12.1(a) of the Federal Magistrates Court Rules 2001 (Cth), was not satisfied that the application had raised an arguable case for the relief claimed. 2 This being an interlocutory decision, the applicant must obtain leave and, amongst other things, must show that the decision of the Magistrate was attended with sufficient doubt. 3 The applicant is a citizen of Turkey. He arrived in Australia on 10 November 2005. On 22 December 2005, he lodged an application for a protection visa. This was refused by a delegate of the Minister on 15 February 2006, and on 20 March 2006 the applicant applied to the Tribunal for a review of that decision. Before the Tribunal the applicant claimed to fear persecution by reason of his political opinion. The applicant claimed he was a member of the Labour Party in Turkey before the military coup, after which he distanced himself from political activities for fear of persecution. 4 The applicant claimed that, once the situation in Turkey settled, he began to participate in political activities again and, in particular, to support "Saturday Mothers" meetings. The applicant claimed that he was harassed and beaten by police during these meetings. He claimed he provided his office for Teachers' Union meetings and, as a result, was threatened by police. The applicant further claimed he assisted a Kurdish friend and another friend to flee Turkey and, as a result, he was captured, beaten and interrogated by the secret police "deep state". After his release, the applicant claims he was threatened and told he would remain under surveillance. The applicant claimed to fear that if he returned to Turkey he would be punished by the secret police. 5 The Tribunal was satisfied the applicant was a member of the TIP, the Labour Party, before 1980 and ceased involvement after the military coup. He was not a target of any politically motivated harm as a result of his involvement and, by the time of his departure, the applicant was a successful and prosperous businessman. The Tribunal was satisfied the authorities had no adverse interest in the applicant as a result of his claimed link to the Saturday Mothers. The Tribunal found it to be plausible that the applicant allowed members of the Teachers' Union to meet in his offices and that he sympathised with the teachers who were involved, and that he was warned by the police after his office was used. However, the failure of the police to detain the applicant allowed the Tribunal to infer that the applicant was not imputed with leftist views. This was because, on independent country evidence, those likely to be imputed with leftist views would be targeted by police for arbitrary detention and torture.


case_outcome: discussed

case_text: Section 425(1) requires only that the Tribunal "invite" the applicant to appear to give evidence and present arguments. The appellant did not claim that she had not received an appropriate invitation. The appellant rather submitted that neither in the relevant invitation, nor at the hearing, was she given sufficient notice that the Tribunal might decide the case by reference to the various issues identified in the first ground. This complaint arose primarily out of the reasoning of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. The circumstances giving rise to that case are briefly summarized in the reasons at [3] and [4] as follows: 3 The Tribunal wrote to the appellant telling him that it was unable to make a decision in his favour on the information he had supplied, and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)). The appellant took up this invitation and appeared before the Tribunal in February 2003. The Tribunal member began proceedings by telling the appellant that on reading all of the material, she was not able to be satisfied that the appellant qualified for a protection visa. The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be "implausible". Rather, the first the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision. 4 Did the courts below err in holding that the Tribunal had not denied the appellant procedural fairness? 47 It seems that, as in the present case, no reference was made to s 422B or to s 424A , although both were then in force. Indeed, at [29], the Court said: No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone ... . The Full Court (Northrop, Miles and French JJ) said ...: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (Original Emphasis) 48 In SZBEL at [33]-[35] the High Court said: 33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1) (emphasis added). The reference to "the issues arising in relation to the decision under review" is important. 34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (Original Emphasis) 49 Section 425 offers guidance as to the requirements of procedural fairness in proceedings which follow an invitation pursuant to that section. The High Court considered that the Tribunal had failed to extend the degree of procedural fairness implicitly contemplated by s 425(1). The decision does not mean that all relevant matters in dispute must be raised in an invitation issued pursuant to s 425(1). Notice of a particular issue may be given in the course of the hearing. I do not understand the appellant to have submitted to the contrary.


case_text: The Tribunal found that the restraint on proselytization was not persecutory conduct "... on the basis that the laws restricting proselytizing are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order. That is the Tribunal finds on the basis of the country information set out above that the law and its enforcement is appropriate and adapted to achieving a legitimate object ...". In so holding, the Tribunal relied upon passages in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 258 and in the joint reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [45] . 57 In Applicant A , at 258, McHugh J observed that persecution relevantly involves an element of discrimination against a person because of race, religion, nationality, political opinion or membership of a social group. In the next paragraph his Honour discussed circumstances in which conduct which would be persecutory (by virtue of its being discriminatory) would not be treated as such because it was appropriate and adapted to achieving some legitimate object of the relevant society. At the top of p 259, his Honour continued: However, where a racial, religious, national group or the holder of a particular political opinion is a subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny ... . ... Only in exception cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution. 58 In Applicant S395 , the High Court was considering a decision of the Tribunal which concerned homosexual men in Bangladesh. Although McHugh and Kirby JJ were, at [45], speaking of legislation penalizing homosexual conduct in that country, such legislation was not the subject of the Tribunal's decision. The Tribunal had found that homosexual men in Bangladesh constituted a particular social group under the Convention. The applicants had claimed to fear persecution because of membership of that group. However the relevant persecution was not legislative restriction upon homosexual conduct. The applicants rather feared persecution because of community hostility to homosexuality. Hence the case is not relevant to the question with which I am presently concerned. 59 In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 , the majority of the High Court said at [19]-[21]: 19 Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group for example, "black children", as distinct from children generally cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A , the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. 20 In Applicant A , McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group" ... . In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution" ... . That is because enforcement of a law of that kind does not ordinarily constitute discrimination. 21. To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory ... . And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention. 60 At [24]-[29] their Honours continued: 24 As already indicated, there is a common thread linking the expressions "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee". In a sense, that is to oversimplify the position. The thread links "persecuted", "for reasons of" and the several grounds specified in the definition, namely, "race, religion, nationality, membership of a particular social group or political opinion" ... . 25 As was pointed out in Applicant A ...,not every form of discriminatory or persecutory behaviour is covered by the Convention definition of "refugee". It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct. 26 The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality. If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality. That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently. 27 The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups for example, terrorist groups which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views for example, those who advocate violence or terrorism differently from other members of society. 28 As McHugh J pointed in Applicant A , the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]" ... . Moreover, it is "[o]nly in exceptional cases ... that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution" ... . 29 Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.


case_text: The Tribunal found that the restraint on proselytization was not persecutory conduct "... on the basis that the laws restricting proselytizing are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order. That is the Tribunal finds on the basis of the country information set out above that the law and its enforcement is appropriate and adapted to achieving a legitimate object ...". In so holding, the Tribunal relied upon passages in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 258 and in the joint reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [45] .


case_title: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2001) 201 CLR 293

case_text: In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 , the majority of the High Court said at [19]-[21]: 19 Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group for example, "black children", as distinct from children generally cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A , the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. 20 In Applicant A , McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group" ... . In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution" ... . That is because enforcement of a law of that kind does not ordinarily constitute discrimination. 21. To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory ... . And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.


case_text: In Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2001) 179 ALR 1 , Merkel J (Wilcox & Gray JJ concurring) said, at [63]-[66]: 63 While, generally, punishment for breach of a criminal law of general application will not constitute persecution for a Convention reason, the proposition contended for by the minister that prosecution under generally applicable laws cannot amount to persecution for a Convention reason is erroneous. Before such a conclusion can be reached in a particular case the circumstances of the individual concerned must be considered. That consideration will usually occur in the context of an inquiry into the nature of the law, the motives behind the law, whether the law is selectively or discriminatorily enforced or impacts differently on different people. Further, where the punishment is disproportionately severe, that can result in the enforcement of the law in that case being persecutory for a Convention reason: ... . 64 In the present case the RRT gave only scant attention to the above matters. In inquiring into the nature of the laws in question I would have expected the RRT to have specified, in greater detail than it did, the source and detail of the laws and the penalties that attend their breach. 65 A law that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing social group, is not properly described as a law of general application. Such laws "target or apply only to a particular section of the population" ... . 66 Consequently, a law regulating the practice of religion, requiring that it be practised or observed in a particular way or targeting or applying only to persons practising religion, is not a law of ":general application". Thus, a fear of prosecution or punishment by the authorities for the breach of such laws can, of itself, give rise to a well-founded fear of persecution for a Convention reason. 62 The cases suggest that the question of whether a law is of general application is distinct from the question of whether it is appropriate and adapted to a legitimate purpose. If a law is, on its face, of general application, its enforcement will not be discriminatory (and therefore, at least potentially, persecutory) unless it has discriminatory impact upon persons of a particular race, religion, nationality or political persuasion, or who are members of a particular social group. In the event of such discrimination, it will be necessary to consider whether the law is appropriate to achieving some legitimate social purpose. Where legislation is not, on its face, of general application and applies to one or other of the protected "groups", it will always be necessary to consider its appropriateness to achieving a legitimate purpose. 63 I have already set out the substance of the Tribunal's decision on this aspect of the case. At [68] the Magistrate said, concerning that decision: The third particular relates to whether legal restrictions on proselytizing in Indonesia were laws of general application and appropriate and adapted to requirements of the society. As discussed above, the Tribunal was not required to disclose its preliminary conclusions on such a matter of legal judgment. The Tribunal's legal conclusion on the facts is not a matter that has to be raised with an applicant under s 425(1). 64 The appellant also sought review upon the basis that the Tribunal had failed to consider whether the restrictions which might be imposed upon the appellant's intended acts of mercy in Indonesia impinged upon her freedom of religion to the extent that such restriction would be persecutory. In its reasons the Tribunal quoted the following extract from the online version of the 1992 Catechism of the Catholic Church: The works of mercy are charitable actions by which we come to the aid of our neighbour in his spiritual and bodily necessities. Instructing, advising, consoling, comforting are spiritual works of mercy, as are forgiving and bearing wrongs patiently. The corporal works of mercy consist especially in feeding the hungry, sheltering the homeless, clothing the naked, visiting the sick and imprisoned and burying the dead. Among all these, giving alms to the poor is one of the chief witnesses to fraternal charity: it is also a work of justice pleasing to God. ... 65 The Tribunal concluded: The [appellant] claims that should she return to Indonesia if she was to continue to carry out religious activities such as she has done here in Australia in association with the Legion of Mary and the St Vincent de Paul Society she would be subject to serious harm from Muslims and also the authorities. The [appellant] has provided considerable documentary material on the Legion of Mary and as discussed with the [appellant] at the hearing the word of the Legion of Mary falls within the umbrella of what is referred to in the Catholic Church as works of mercy. The Tribunal notes and accepts the description of works of mercy ... from the Catholic Catechism that the exercise of works of mercy is part of the practice of the Catholicism. The Tribunal accepts that the [appellant] may not be able to engage in works of mercy in Indonesia in the same format that she has done so in Australia with the Legion of Mary and the St Vincent de Paul Society by way for example of door knocking. However the Tribunal notes that the Legion of Mary does operate in Indonesia ... that a number of Catholic agencies do carry out works of mercy Indonesia and have managed to do so in collaboration with Muslim organizations, Fr Riley's Youth Off the Streets is a case in point ... . The Tribunal also notes that works of mercy as described in the Catholic Catechism may take a variety of forms and are not strictly codified. Accordingly the Tribunal does not accept that the [appellant] will be unable to engage in works of mercy in Indonesia.


case_text: After setting out the passage which appears at [45] in Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 29 ; (2005) 216 ALR 1 (per McHugh J) the writer continues: Proselytizing in Indonesia is prohibited by law where it is considered a criminal offence. Breach of such law may lead to imprisonment and other penalties. We also note that Proselytizing by Christians is viewed generally as contrary to the beliefs of Islam. The latest Report on Religious Freedom in Indonesia states that: "The government bans proselytizing, arguing that such activity, especially in areas heavily dominated by members of another religion, could prove disruptive. A joint decree issued by the Ministries of Religion and Home Affairs in 1979 prohibits members from one religion from trying to convert members of other faiths." Example of criminalization of proselytizing is Regulation 86UU No.23 2002 Child Protection which says: 'Any person who purposely uses deception, lies and enticement to make a child choose another religion not of his own free will, whereas it is known or should be assumed that the child is not of age and not responsible according to the religion they followed, will be prosecuted by imprisonment for five years and/or a fine of RP 100,000,0000 [sic].' It is submitted that the law criminalizing proselytizing is not a law of general application. We submit that the law prohibiting proselytizing is persecutory not prosecutory. 71 Whether a law banning proselytization is a law of general application will depend upon its terms and the way in which it is enforced. The "example" cited in the above extract could hardly be said to be anything other than a law of general application. It prohibits misleading conduct directed at children. There could be little doubt that such legislation was designed to serve a legitimate public purpose. A child's religion is a matter for his or her parents or guardians. However it seems to have been accepted that there is a wider prohibition upon proselytization in Indonesia, the source and terms of which are not in evidence. In particular there is no evidence as to whether the law only bans attempts to persuade persons to adopt a particular religion, or whether it also applies to attempts to dissuade persons from following one religion or all religions. In the former case it might be said that the legislation applies only to persons who wish to recruit adherents and that, in that sense, it applies only to persons who are already members of particular religious organizations. In the latter case, the application is wider and perhaps more easily characterized as being of general application. 72 For present purposes it is sufficient to note that the question of legislation prohibiting proselytization was raised by the appellant's solicitors who submitted that such legislation was not of general application. The question having been raised by the appellant, the Tribunal necessarily had to address it. I can see no basis for holding that before doing so, it was obliged to invite the appellant further to address the matter. The appellant was not entitled to assume that the question would be resolved in her favour. The Tribunal offered her an opportunity to advance her case at the hearing. No more was required. 73 On appeal the appellant again asserted that the Tribunal was obliged to give notice of its intention to find against her on the basis that the law was of general application and/or that it was appropriate and adapted to a legitimate social purpose. For reasons which I have given I reject that submission in so far as it concerns the question of general application. As to the question of whether the law was appropriate and adapted to a legitimate purpose, I consider that in raising the question of the law's general application, the appellant's solicitors inevitably raised the question of appropriateness. To attempt to distinguish between the two aspects, given the way in which the matter has been treated in the cases, would be quite artificial. There was no obligation on the Tribunal to invite the appellant further to address the issue. 74 I turn to the question of whether the Tribunal addressed the extent to which the appellant would be restricted in her chosen method of practising her religion. In my view, the Tribunal disposed of this ground by its finding that laws restricting proselytization were general laws, appropriate and adapted to a legitimate purpose, and by its finding that such harassment as the appellant might experience in Indonesia would not amount to persecution, particularly given the availability of state protection. The effect of those findings was that the appellant would be free to engage in works of mercy, subject to her complying with the law as to proselytization, and subject to the risk of low level harassment against which she would have state protection. Such findings have not been challenged. The first-mentioned limitation was not discriminatory, and therefore not persecutory. The second limitation did not amount to persecution as defined in s 91R. It follows that the appellant did not have a well-based fear of persecution for reason of her religion.


case_text: On 2 May 2002, the appellant applied to the High Court of Australia, seeking relief under s 75(v) of the Constitution in relation to the Tribunal's decision. The High Court remitted that proceeding to this Court. On 5 December 2003, Heerey J dismissed that application. His Honour's reasons are published as M52 and M53 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1495. Those reasons make it clear that his Honour did not give judgment on the merits, but rather dismissed the application on an interlocutory basis, because the appellant had failed to lodge it within the time limits fixed by the High Court Rules, and his Honour refused to extend the times so fixed. 5 The appellant appealed from the judgment of Heerey J. On 6 May 2004, a Full Court of this Court refused to extend the time for filing an application for leave to appeal, refused leave to appeal, and dismissed the appellant's purported appeal as incompetent. Although there appear to be no published reasons of the Full Court, it is plain that the Full Court regarded the judgment of Heerey J as an interlocutory judgment, from which leave to appeal was necessary.


case_text: On 13 May 2004, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 6 April 2005 the Federal Magistrates Court dismissed that proceeding. The reasons for judgment of the Federal Magistrates Court on that occasion have been published as MZWGV v Minister for Immigration [2005] FMCA 980. They indicate that the learned federal magistrate dismissed the application on the basis that his Honour considered that the appellant was estopped by the previous judgments of North J and Heerey J, and the judgment of the Full Court of this Court, from applying again at all to have the Tribunal decision set aside. His Honour also took the view that the Federal Magistrates Court should not be seen to be reviewing decisions made by Federal Court judges. On 6 April 2005, as well as dismissing the appellant's application with costs, the federal magistrate also ordered that there be no further applications brought by the appellant with respect to the Tribunal's decision except by leave of the Federal Magistrates Court. 21 It does seem to me that, if the appellant could have made a case that he had a ground on which he could have sought to set aside the Tribunal's decision, which was a ground not available to him under the provisions of Pt 8 of the Migration Act , as they stood at the time of his application to this Court that was dealt with by North J, then he might still have been able to make an application to set aside the decision of the Tribunal at the time when he made his first application to the Federal Magistrates Court, and even at the time when he made his second. In my view, in the first of the federal magistrate's judgments, his Honour was wrong to regard the entire matter as being one of estoppel against the appellant from bringing any application on any ground in respect of the Tribunal's decision. For the reasons I have set out in Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 at [54] [71], it seems to me that it would have been open to the appellant to raise a ground that he could not have raised under the provisions of Pt 8 of the Migration Act as they stood at the time of his first application to the Court, because whatever grounds he raised before the High Court had not been the subject of judgment on the merits, and no estoppel was therefore raised in respect of them. It is true that there might be issues of Anshun estoppel, but these would have to be matters of argument.


case_text: Notwithstanding that order, on 23 May 2005 the appellant applied again to the Federal Magistrates Court for review of the Tribunal decision. On 2 June 2005, the same federal magistrate again dismissed that application with costs. The federal magistrate's reasons for judgment are published as MZXAF v Minister for Immigration [2005] FMCA 979. After referring to the order made on 6 April 2005, his Honour said at [5] [6]: 'The applicant's only basis for bringing the further application is that he says he now has some witnesses. This would not have been an arguable ground for review, even on his first application. Where an applicant is the subject of an order not to bring further applications without the leave of the court the appropriate step to take before bringing a further application for review is to apply for leave. A leave application should be supported by an affidavit setting out the facts and circumstances relied upon to show that leave should be granted. A copy of the proposed application should be annexed to the affidavit.' The reasons make clear that, because of the fact that the appellant had not sought the leave of the Court before bringing his application, his Honour saw fit to dismiss the application. 8 On 6 June 2005, the appellant filed in this Court what is, in form, a notice of appeal from the judgment of the federal magistrate given on 2 June 2005. The grounds of appeal specified in the notice of appeal read as follows: '1. I disagree with the decision of the Federal Magistrates [ sic ] because there was an error in this decision. Details I will provide as soon as I received [ sic ] the judgement [ sic ]. 2. There was procedural error in the court's decision. The original date of this hearing is on 22nd of June 2005. But it was advanced to 2nd of June 2005. This hearing was heard by telephone. The Judge failed to consider my case inaccordance [ sic ] with the law of the country. I believe that this was abreach [ sic ] of natural Justice. Further, I believe this was the abreach [ sic ] of the human rights & also the procedure of the court. 3. I believe that the court only listening the [ sic ] Minister of Immigration & their Lawyers but not the applicant. This I believe an error of the court procedure & also Bias and unfair.' 9 I dealt with the matter by way of directions hearing on 8 August 2005. Among the directions that I gave was a direction that, on or before 22 August 2005, the appellant file and serve any application for leave to appeal, any application to enlarge the time for applying for leave to appeal, and any affidavit or other document on which the appellant seeks to rely on the hearing of the appeal or any application for leave to appeal or for enlargement of time.


case_text: It does seem to me that, if the appellant could have made a case that he had a ground on which he could have sought to set aside the Tribunal's decision, which was a ground not available to him under the provisions of Pt 8 of the Migration Act , as they stood at the time of his application to this Court that was dealt with by North J, then he might still have been able to make an application to set aside the decision of the Tribunal at the time when he made his first application to the Federal Magistrates Court, and even at the time when he made his second. In my view, in the first of the federal magistrate's judgments, his Honour was wrong to regard the entire matter as being one of estoppel against the appellant from bringing any application on any ground in respect of the Tribunal's decision. For the reasons I have set out in Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 at [54] [71], it seems to me that it would have been open to the appellant to raise a ground that he could not have raised under the provisions of Pt 8 of the Migration Act as they stood at the time of his first application to the Court, because whatever grounds he raised before the High Court had not been the subject of judgment on the merits, and no estoppel was therefore raised in respect of them. It is true that there might be issues of Anshun estoppel, but these would have to be matters of argument. 23 I sought to ascertain from the appellant, in the course of argument, whether there was any substance in his allegation that the Tribunal had failed to provide him with copies of documents on which it relied, and had failed to give him an opportunity to comment on them. The affidavit with which his law clerk friend helped him did not identify those documents. Nor was the appellant able to identify to me any document used by the Tribunal, which affected the decision adversely to the appellant, and on which he was not given an opportunity to comment. I point out that, even if there were documents, such as the sources of information used by the Tribunal to ascertain the position in the Punjab, and in India generally, at the time of its decision, it would have been sufficient for the purposes of the principles of natural justice or procedural fairness for the Tribunal to have given the appellant an opportunity to comment on the substance of the information contained in those documents. It would be necessary to examine the transcript of the Tribunal's hearing to see whether this had in fact been done. All that can be said is that, if the appellant had been able to raise a case of denial of natural justice, or procedural fairness, that is not a ground on which he could have applied to this Court in 2000, when Pt 8 of the Migration Act contained provisions specifically barring this Court from examining Tribunal decisions on the basis of natural justice. It was not a ground on which there has been any final judgment of any court, and therefore, on the reasoning set out in the passage in Applicants M16 of 2004 , to which I have referred, it is a ground that would have been available to the appellant. It cannot be said that the appellant would succeed on it, because much more would need to be done. 24 So far as the argument today is concerned, the appellant has not indicated that he would have been able to make out a case with respect to any documents. As I have said, he has not been able to identify documents that affected the decision adversely to him, or about which he was given no opportunity to comment. The only view I can take, therefore, is that, as a matter of substance, the appellant has no ground available to him on which he could seek to set aside the Tribunal's decision. This is a powerful reason in itself for refusing him leave to appeal. 25 As to the appellant's complaints about the federal magistrate's judgment, there is not much to be said. He complains that the hearing in the Federal Magistrates Court was originally set for 22 June 2005, but was brought forward to 2 June. He does not indicate how this disadvantaged him. In answer to questions from me this morning, he indicated that he did not complain to the federal magistrate about the change of date, and did not allege that he was disadvantaged in the presentation of his case in the hearing before the federal magistrate, which apparently was conducted by telephone.


case_title: Prentice v Cummins [2002] FCA 1503 ; 124 FCR 67

case_text: The question that I am considering at this stage is whether there is presently no evidence at all to support the case of deceit against Mr Flammia or, alternatively, whether such evidence as there is of deceit is so inherently unreliable or equivocal that the Court should be satisfied that Colonial has not discharged the relevant burden of proof ( Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at [109] ). Since the only issue in the cross-claim is whether Colonial's claim arose out of dishonest or fraudulent acts or omissions on the part of Mr Flammia, a similar question arises in relation to LawCover's defence to Mr Flammia's cross-claim. 9 When the proceeding was commenced by Colonial, Mr William Anastasiadis, a director of Alliance, was joined as second respondent in the proceeding. However, a compromise was subsequently reached between Colonial and Mr Anastasiadis and it is therefore not necessary to deal with the allegations that have been made by Colonial against him, except in so far as they are material to the question of whether Mr Flammia has a case to answer in deceit. 10 Mr Flammia conducted his practice as a solicitor under the name Manna & Flammia from an office in Castlereagh Street, Penrith, New South Wales. On 11 October 2001, Mr Flammia wrote to Colonial on his firm's letterhead. The letter was addressed to Colonial at an address in Parramatta. The letter was entitled " STANLEY STEVENS: MEMBER No TRAC353913 "; that was the membership number of Mr Stanley Gordon Stevens in the SuperTrace Fund. The letter said: "We note we act for Mr Stevens. We are instructed to withdraw our client's superannuation from the fund as he has retired and is no longer working. Please find enclosed signed ETP form and client's authority. Please forward a cheque in favour of ' Manna & Flammia Solicitors Trust Account' in the sum of $449,025.01 as soon as possible. Should you have any queries please contact the writer." The letter was received by Colonial on 15 October 2001. Three documents were enclosed with the letter. 11 The first document was a copy of a letter dated 2 October 2001 purporting to be written by Stanley G. Stevens to Mr Flammia. The letter stated the following address for Mr Stevens: "18 Abercombe St Warrnambool 3280 PO Box 399 VIC" The letter said as follows: "As I intend to move to Sydney permanently to live in the near future I would like to appoint you as my legal representative. You are hereby authorised and instructed to act on my behalf finalising my superannuation fund. All monies is [sic] to be paid directly into your trust account and held there until further instructed by me. The details of my ETP will be faxed to you together with this authority letter. Should you need to discuss this matter with me you can contact me on my mobile number which is 0412-427-400. I would greatly appreciate all correspondence regarding this matter to be held by yourself as I am currently moving around Australia with work. Thanking you for your support in this matter." While the post office box stated in letter of 2 October 2001 was correct for Mr Stanley Gordon Stevens, the street address was fictitious. Further, at all relevant times during 2001 and 2002, mobile number 0412 427 400 (the Bogus Stevens Number) was held in the name of Ms Helen Oliver of Coorparoo, Queensland. Mr Stanley Gordon Stevens had no connection with the number. The letter of 2 October 2001 was purportedly signed by Mr S.G. Stevens. The signature was a forgery. Significantly, the signature had an apostrophe between the " n " and the final " s " of the name Stevens. 12 The second document was headed " ETP Pre-Payment Statement - Superannuation Payer ". That document contained relevant particulars of Mr Stanley G. Stevens, including the post office box at Warrnambool. Details of the eligible termination payment to which Mr Stevens was entitled, calculated to 13 September 2001, were inserted in the appropriate spaces in the document. The amount was $449,025.01. 13 The third document was entitled " Individual's Payment Instructions to the Superannuation Payer ". That form was completed in typescript with details of the name of Mr Stanley G. Stevens and his date of birth. Particulars of Mr Flammia's firm and its address were inserted in handwriting in the spaces for the name of an agent. The amount of $449,025.01 was inserted in handwriting in the appropriate space for the amount of the payment requested. The document was purportedly signed by Mr S.G. Stevens. Again, the signature had an apostrophe between the " n " and the final " s " of the name Stevens. The signature was a forgery. 14 In fact, Mr Stanley Gordon Stevens had given no instructions to Manna & Flammia to withdraw his entitlement to superannuation from the SuperTrace Fund. He knew nothing of Manna & Flammia. 15 On 18 October 2001, Mr Flammia telephoned Colonial's office. He was told that his letter of 11 October 2001 had been received and that it would be fifteen to twenty working days before the matter would be finalised. 27 The third document (the St George Authority) was a single sheet containing the following handwriting: "Attention: Narrelle: St George Bank Manager I Stanley G. Stevens authorise my legal representative to deposit my Commonwealth Bank cheque for the sum of $438,802.80 into the Manna + Flammia Trust Account. Thank you. Regards." Underneath that handwriting appeared another purported signature of S.G. Stevens. Once again, an apostrophe appears between the " n " and the final " s ". That signature was a forgery. Underneath the signature was a further copy of the New South Wales driver's licence that was contained in the 30 October Certificate. It is apparent from the markings on that copy that it was a photocopy of the copy that appears in the 30 October Certificate. 28 On 16 November 2001, the bank cheque was deposited for credit to the trust account with St George Bank of Manna & Flammia. 29 As at November 2001, Mr Anastasiadis was a director of Alliance. Mr Anastasiadis was the sole signatory on the account of Alliance with the St Mary's branch of Westpac. About a week prior to 19 November 2001, Mr Anastasiadis spoke to Ms Suzanne Margaret Richardson, who was the manager of the St Marys branch of Westpac. Mr Anastasiadis wanted to know what procedures had to be taken to withdraw an amount of cash in the vicinity of $400,000. Ms Richardson offered to provide him with a bank cheque free of charge in lieu of cash but Mr Anastasiadis said he wanted cash. Ms Richardson told him that the funds he wanted to draw on had to be cleared funds and that he would have to give at least 48 hours notice of the withdrawal. 52 The statutory declaration is a typed document and purports to be a declaration made by S.G. Stevens before Mr Flammia at Penrith on 12 October 2001. The terms of the declaration are as follows: "I, Stanley. G. Stevens of PO Box 399 Warrnambool VIC 3280 in the State of Victoria 3280 do hereby solemnly declare and affirm that: I have ceased working and am now officially retired. And have been since January 2001." It covers two pages, each of which is purportedly signed by Stanley G. Stevens. Once again, there is an apostrophe between the " n " and the final " s " of Stevens. The signatures are forgeries. 53 The letter of 13 November 2001 is headed in the same way as the letter of 2 October 2001 and is as follows: "Please deposit my superannuation funds from Colonial in the sum of $438,802.80 into your trust account until further notice. I shall endorse the bank cheque so that you may deposit it without delay. I understand your fees will be for $2,000 for acting for me in this matter and appreciate your assistance. Should you need to discuss anything further with me please contact me on my mobile, 0412 427 400." The letter purports to have been sent from Victoria, in so far as the Warrnambool address and PO Box 399 Victoria are on the letter. Once again, the signature that appears on the letter of 13 November 2001 has an apostrophe between the " n " and the final " s " of Stevens. The signature is a forgery. 54 It is significant that the letter of 13 November 2001 states the precise amount of the cheque that was received from Colonial on 14 November 2001. The letter has a date stamp of 14 November 2001 on it, similar to the date stamp on the original of the letter of 8 November 2001 from Colonial. There is no evidence that Mr Flammia was informed of the amount of the cheque before it was received by him. That suggests that the letter was not brought into existence until 14 November 2001 at the earliest and that Mr Flammia must have known that it was not sent by Mr Stevens from Victoria on 13 November 2001. 56 The file contains a copy of a third letter purporting to come from Stanley G. Stevens, dated 19 November 2001. The letter has the same address for Mr Stevens and is addressed in the same way to Manna & Flammia. It is in the following terms: "I refer to our telephone discussion this morning and I hereby by authorise and direct you to draw the funds held in your trust account on my behalf. Less your fees, in favour of Alliance Property Investments Pty Ltd. I shall arrange for a courier to collect the cheque later in the day. Should you have any further queries please contact me on my mobile number." The letter is date stamped 20 November 2001. There is an emphatic apostrophe between the n and the final s of Stevens. The signature is a forgery. 57 Mr Flammia's file also contains two handwritten notes. The first is in the following terms: " approx 30 mins, 12/10 Conf. Mr Stevens - rec comprehensive instr. - produced ID - signed Stat Dec" The second is as follows: " 19/11 Mr Stevens rang He said to draw funds less our costs to 'Alliance Property Investments A/C' Cheque will be collected after 2 pm today. Told client to confirm in writing for our records." There is no record of the comprehensive instructions that the first note sates were received. The brevity of the second note is remarkable having regard to its contents. It is anomalous that Mr Flammia did not ask for full written instructions from a new client before undertaking the steps that he took in relation to such a large some of money. The inference is open that both notes were brought into existence to add verisimilitude to an otherwise totally unconvincing narrative. 58 Mr Flammia would have to have been extraordinarily naïve to believe that he had been chosen at random to withdraw such a large sum of money and then pay it to a company dealing with real estate, without some explanation. He drew a cheque for the bulk of the funds without any further communication from his client. There was no telephone communication between Mr Flammia and the telephone number purportedly given by Mr Stevens at that time. There is nothing on Mr Flammia's file to explain such extraordinary actions.


case_title: Gould v Vaggelas [1985] HCA 75 ; 157 CLR 215

case_text: The signature that appears on the St George Authority is a cut and paste copy of the signature on the letter of 13 November 2001. That fact is demonstrated by several imperfections in the two signature that are identical. Most significant is that the top of the curve of the letter " G ", which was part of the typed name " Stanley G. Stevens " on the letter of 13 November 2001, is clearly visible as part of the purported signature on the St George Authority. That is a particularly damning fact from Mr Flammia's point of view. The St George Authority, containing that signature and copy of the driver's licence, was sent to St George Bank by facsimile from the office of Manna & Flammia. It must have been apparent to Mr Flammia that he did not have an original of the St George Authority. 104 The internal memoranda made by officers of Colonial indicate that, before any payment would be made, it was necessary for identification to be produced. That is what led to Mr Flammia's letter of 30 October 2001 and the 30 October Certificate. It was not until after receipt of the 30 October Certificate that Colonial, through its officers, was induced to cause the cheque to be drawn on 9 November 2001. I am persuaded, on the balance of probabilities at least, that the 30 October Certificate induced Colonial to cause the cheque to be drawn. In any event, that was clearly Mr Flammia's intention. An inference can therefore be drawn that Colonial was induced to act as he intended it to act - see Gould v Vaggelas [1985] HCA 75 ; (1984) 157 CLR 215. 105 I would confidently conclude that there is reliable and cogent evidence in support of Colonial's case in deceit against Mr Flammia and of LawCover's allegation that Colonial's claim against him arises out of fraudulent acts on his part. Accordingly, Mr Flammia must now elect whether to adduce evidence to rebut the conclusions that are provisionally open, on the evidence to date, that Colonial would be entitled to judgment against him in the sum of $438,802.80 plus interest and that his cross-claim would be dismissed. The matter is listed for directions on 9 November 2007, at which time Mr Flammia must elect whether he wishes to go into evidence. If so I will give directions for the further conduct of the proceeding. If not, I will fix a time for final submissions. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 1 November 2007 Counsel for the Applicant/Cross-Claimant: Mr T M Thawley Solicitor for the Applicant/Cross-Claimant: Henry Davis York Counsel for the First Respondent: Mr P T Taylor with Mr J de Greenlaw Solicitor for the First Respondent Veritas Legal Counsel for the Second Respondent: Mr J A Jobson Solicitor for the Second Respondent: Juris Lawyers Counsel for the Cross-Respondent: Dr A S Bell SC with Mr P Flynn Solicitors for the Cross-Respondent: Yeldham Price O'Brien Lusk Dates of Hearing: 17,18,19,20,21 and 24 September and 11 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1655.html


case_outcome: followed

case_text: The Court also notes that it cannot review the merits of a Tribunal decision: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] ; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42.


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


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


case_text: Scarlett FM found that the Tribunal's assessment of the appellant's credibility was based upon his evidence to the Tribunal, independent country information, inconsistencies within the appellant's own evidence and inconsistencies between his evidence and the independent country information. His Honour relied upon the decision in Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 , which held that the assessment of the credibility of an applicant is a matter of fact and is a matter solely for the administrative decision maker. Scarlett FM observed that there is no basis for conducting a judicial review and interfering with the Tribunal's findings provided there is evidence upon which a credibility finding may be made. 20 Scarlett FM satisfied himself that the appellant's own evidence and the independent country information were sufficient to allow the Tribunal to make its findings concerning the appellant's credibility. The Court finds that his Honour did not err in making such finding.


case_title: SZBYR and Another v Minister for Immigration and Citizenship and Another [2007] FCA 26 ; (2007) 235 ALR 609

case_text: The Tribunal found that there were inconsistencies in the appellant's evidence. Scarlett FM noted that it was well established that inconsistencies in evidence do not constitute 'information' for the purposes of s 424A of the [2007] FCA 26 ; Act (see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18] ) and accordingly do not constitute 'information' for the purposes of s 424AA. His Honour also observed that the Tribunal offered the appellant an opportunity to comment on certain aspects of the evidence, although before his Honour the appellant denied that he was given such opportunity. 27 The Court observes that s 424AA of the Act does not contain an equivalent provision to s 424A(3). Section 424A(3) identifies material which is not 'information' for the purposes of the application of that section. However, as s 424AA is merely an alternative form of notification available to the Tribunal (see s 424A(2A)) , the Court considers that the exclusions contained in s 424A(3) apply with equal force to s 424AA. Such inference is supported by the collective use of the term 'information' in s 424A(2A) of the Act (a subsection which applies to both ss 424A and 424AA ), as such use implies uniformity of meaning. Section 424A(2A) provides: (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. Accordingly, the Court considers that what is not 'information' for the purposes of s 424A(1) of the Act is also not 'information' for the purposes of s 424AA. 28 It follows from the above that no error is apparent in the Federal Magistrate's finding in relation to the Tribunal's compliance with s 424AA of the Act. The appellant's second ground of appeal is accordingly rejected.


case_text: The appellant appeals from the decision of Federal Magistrate Scarlett delivered on 26 May 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 20 December 2007 (see SZLXI v Minister for Immigration and Citizenship and Anor [2008] FMCA 759). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa ('the protection visa') to the appellant. 2 The appellant is a citizen of the People's Republic of China ('the PRC'). The appellant arrived in Australia on 7 July 2007 and lodged an application for the protection visa with the Department of Immigration and Citizenship on 20 August 2007. A delegate of the Minister refused the application for the protection visa on 31 August 2007. On 28 September 2007 the appellant made an application to the Tribunal for a review of the delegate's decision. 3 Before the Tribunal the appellant claimed to have been recruited by the People's Liberation Army ('the army') in October 1982 as an engineer. The appellant claimed that after being demobilised he became a goldsmith and in 1999 established his own business in Wuxi City. The appellant claimed that as he was not a local in Wuxi City he became a victim of corruption at the hands of the local officials.


case_text: must take into account, follow and apply the relevant and binding reasoning and ratio of the Full Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227. I consider that I should apply the following principles and propositions contained in the reasoning of the Full Court whether they be the ratio, or one of the rationes, of the decision or persuasive and considered obiter dicta: (a) In determining a claim for protection of documents from disclosure and inspection on the ground of public interest immunity a Court must undertake a balancing exercise and determine whether the public interest in protecting from disclosure the identity of an informer outweighs the public interest that in a civil proceeding a party should not be denied access to relevant evidence; (b) The partial or limited disclosure of the identity of an informer is not conclusive in determining whether the identity of the informer should be protected from being disclosed in documents sought to be the subject of inspection on the ground of public interest immunity. Immunity from further disclosure is not necessarily lost where there has been a partial limited disclosure of the identity of an informer; (c) The transcripts of the examination of the informer or informers would, both directly and circumstantially, identify the informer or the informers; (d) The appropriate test to apply in determining whether inspection of the relevant documents and transcripts might disclose the identity of an informer or informers is to ask whether there is in the documents any material by which "a shrewd idea" might be conveyed as to the identity of the informer or informers, noting that documents taken together may convey information which each, by itself, could not convey. Further, the benefit of the doubt should be in favour of non-disclosure. The observations I made in pars [13]-[20] in my reasons for judgment published on 23 July 2009 apply in relation to ASIC's claim for public interest immunity in respect of the documents produced by KPMG. I have considered the submissions made by ASIC in relation to the KPMG documents and audio tapes and the redaction or masking proposed by ASIC in relation to a number of those documents. I have reached the conclusion that the redaction and masking undertaken by ASIC in relation to the KPMG documents goes beyond the redaction and masking which is necessary in order to ensure that the documents do not have a tendency to disclose the identity of an informer or informers to ASIC. I set out in Confidential Appendix A to these reasons my conclusion whether ASIC's claims for public interest immunity in respect of the documents should be upheld or rejected and my conclusion as to the redaction and masking of the documents which I consider should be undertaken. This Appendix will only be made available to ASIC's legal advisors and the deponents of its affidavits for the purpose of determining the form of any public non-confidential order which I should make.


case_text: Embarrassment in the context of O 11 r16 'carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive': Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434.


case_outcome: applied

case_text: In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J said at [42] [45]: '[42] I am of opinion that, properly construed, s 31A(2)(b) requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or the part of the proceeding in question. Experience shows that there are cases which appear to be almost bound to fail yet they succeed. As Dixon CJ once said (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 ; (1962) 107 CLR 9 at 20; [1962] HCA 19 ; [1962] ALR 775 at 781): "Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told." [43] Brennan CJ and McHugh J applied that observation in Jackamarra [v Krakover [1998] HCA 27 ; (1998) 195 CLR 516] at [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having "no reasonable prospect of successfully prosecuting a proceeding" has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] UKPCHCA 1 ; (1947) 75 CLR 125 at 130 1; [1947] HCA 54 ; [1948] 1 ALR 85 at 87-8 (Hocking (1947)), approving the following statement from the dissenting judgment of Latham CJ (Hocking v Bell (1945) 71 CLR 430 at 441 2 (Hocking (1945))): If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added] See also Swain v Waverley Municipal Council (2005) 220 CLR 517 ; 213 ALR 249 ; [2005] HCA 4 at [9] per Gleeson CJ, [128] [131] per Gummow J and [203], [208] [209] per Kirby J; see also at [33] [34] per McHugh J. [44] In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. And, one must be mindful that in Hocking (1945) at 487, Dixon J said that, in effect, every judge who had heard the matter (through four trials, two Full Court appeals and, to that point, the appeal to the High Court) would have formed the view that the plaintiff should have failed had they been able to decide the facts, yet the Privy Council restored the second jury verdict in her favour and so concluded the litigation. This raises a very real question, as to what reasonable prospects are for present purposes. [45] I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking (1947), contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened ... "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases".' 8 The approach of Rares J in Boston Commercial was adopted by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 where his Honour said at [30] [33]: '[30] ... The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. [31] I do not think that this approach conflicts with the provisions of s 31A(3). [32] It is true that summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing: Boston Commercial at [38], [48]. [33] It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.' 9 In Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 , Tamberlin J also gave clear approval to the approach taken by Rares J in Boston Commercial . His Honour said at [12] [13]: '[12] Section 31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable". [13] In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45] . The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent the onus on the party applying for summary judgment is heavy.' 11 In Jefferson Ford , the Full Court was comprised of Finkelstein, Rares and Gordon JJ. Finkelstein J summarily dismissed the standard adopted by Rares J in Boston Commercial in the following words at [21]: '[21] In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 Rares J attempted to describe the requisite standard under s 31A. After reviewing many cases, most from different and not necessarily analogous areas, he came down to the view (expressed at 157) that if there was "a real issue of fact to be decided" or "possibly, where there is a real issue of law" to be resolved the matter should go to trial. This, with respect, does not seem to be very far removed from the old O 14 test. So the standard must be found elsewhere.' 14 In Jefferson Ford at [73], Rares J merely observed that the parties accepted both before the primary judge and the Full Court, that the test to be applied under s 31A of the FCA was that which his Honour stated in Boston Commercial and that in those circumstances, it was not open to the Court to undertake a frolic of its own (again, my words, not his Honour's). 16 Whether one applies the standard adopted by Rares J in Boston Commercial , the indicia of assessment which Gordon J thought s 31A required to be addressed in Jefferson Ford or, applying the tasks which Finkelstein J thought were imposed on a judge when considering an application made in reliance on s 31A, this ground of the motion must fail.


case_text: The approach of Rares J in Boston Commercial was adopted by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 where his Honour said at [30] [33]: '[30] ... The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. [31] I do not think that this approach conflicts with the provisions of s 31A(3). [32] It is true that summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing: Boston Commercial at [38], [48]. [33] It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.'


case_text: The pleading should enable the respondent to know, with sufficient clarity, the case which it is required to meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. 25 As indicated in [4] above, the SOC leaves a good deal to be desired in both its form and content. On the other hand, I hasten to add that I do not think that all the pleadings are so embarrassing as to warrant the SOC being struck out as is sought in the motion. A number are, in my view, quite clear in enabling the respondent to know the case it has to meet; others can be raised to that standard by the provision of further and better particulars to those already provided; while some cannot be cured without being amended or re-pleaded. 26 I deal with a number of the pleadings which have been put in issue and others I have identified in the numerical order of the SOC. All paragraph references are to the SOC unless otherwise stated: (1) Paragraph [6] is grammatically wrong and needs to be amended. (2) Paragraphs [8], [9] and [10] are confusing as to what constitutes 'the Contract': is it confined to the instrument of 7 March 2005 as defined in (iv) to para [8] or does it also extend to the content of the Uechritz Conversation as suggested in the particulars to para [9]? Additionally, one does not accept a contract; a contract comes into existence only upon acceptance of an offer. These paragraphs are embarrassing and should be struck out; and as presently framed, they make subsequent paragraphs embarrassing. (3) Paragraph [17] refers to 'paragraphs 14 and 16' and in the next breath to 'paragraphs 14 to 16'. It also refers to 'the Termination Date' which is defined in para [13] as '7 March 2008' and in para [15] as '7 March 2007'. Paragraph [17] needs to be amended. (4) Paragraph [32] is confusing and arguably inconsistent with the claims at paras [33] and [34]. It is not clear that the allegation at para [32] is that the Contract (however that is ultimately identified and constituted) was terminated or purported to be terminated by the respondent or only the applicant's Position (as defined in the SOC). For that reason it is embarrassing and should be struck out. (5) Paragraph [34] is grammatically wrong and needs to be amended. (6) Paragraph [38] is totally confusing. How does one unilaterally withdraw an offer that was a contract? Upon acceptance of an offer and the bringing into existence of a contract, there is no longer an offer to be withdrawn. It is inconsistent with paras [35] and [36] and the claims at paras [41] and [42], and for that reason is embarrassing and should be struck out. (7) The relevance of para [45] is neither stated nor apparent. Unless such relevance can be shown, it is embarrassing and should be struck out. (8) The response to the request for particulars indicates that the 'EEO Policy' referred to in para [46] but not otherwise defined, is a reference back to the document headed 'Fair Employment Practices' referred to in the particulars at (ii) to para [19]. Clause 3.7 of the instrument of 7 March 2005 in its terms only binds the applicant. The pleading at para [46], if not at para [19], should plead the facts necessary to demonstrate how the policies and/or procedures were express terms or how they bound the respondent; it is embarrassing and should be struck out. (9) The applicant says that it will amend the pleadings at paras [47] [51] to make it clear that they are concerned with alleged breaches of the 'Ongoing Contract'. I agree that this should be done and the amendments should identify which provisions or parts of the EEO Policy have been contravened in each case, consistent with the further particulars that have already been provided. (10) Paragraph [54] refers to the respondent's breach of the implied terms at paras [18] and [19], when the pleadings there refer to the terms as express terms. Paragraph [54] should be amended to remedy this. The reference to the 'Respondent's rights and obligations' should also be amended to the 'Applicant's rights and obligations'; and the particulars in (i) should be amended because there is no anterior title 'Breach EEO Policy' above. (11) The claims with respect to damages are confusing and repetitious. For example, paras [33] and [34] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent's actions leading to the 'July Termination'; paras [41] and [42] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent's actions leading to the 'October Repudiation'; para [55] claims that the applicant suffered loss and damage as a result of the breaches referred to at paras [47] [54] inclusive; para [63] claims that the applicant suffered loss or damage by reason of the 'First Misrepresentation'; para [72] claims that the applicant suffered loss or damage by reason of the 'Second Misrepresentation' and then paras [74] [82] inclusive seem to repeat these claims. It is not clear whether the applicant is making multiple claims or whether there is one claim for alternative sums but for different breaches. Paragraphs [74] [82] inclusive, when read in the context of the anterior paragraphs referred to above, are embarrassing and all paragraphs should be struck out. (12) Paragraph [62] refers to paras [54] [61]. The references to paras [54] and [55] cannot be correct and should be amended. (13) Paragraph [74] refers in (a) to 'the Employment Contract'. The term is not defined nor referred to elsewhere in the SOC. It will have to be amended. (14) Paragraph [81] refers to the implied terms in para [54]; it may require amendment depending on the amendment to para [54]: see (10) above.


case_text: A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114 115; and is not saved by using the words '[i]n the premises' to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204 ; (1993) ATPR 41-227.


case_text: In Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 , Tamberlin J also gave clear approval to the approach taken by Rares J in Boston Commercial . His Honour said at [12] [13]: '[12] Section 31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable". [13] In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45] . The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent the onus on the party applying for summary judgment is heavy.'


case_text: Section 31A of the FCA was introduced effective 1 December 2005. The legislative context by which it was introduced and its historical antecedents are touched on by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [55] [60]. I think it is fair to say that the standard which s 31A sets, relevantly in the case of subs (2), '... no reasonable prospect of successfully prosecuting the proceeding ...', apart from the fact that it does not require the proceeding to be hopeless or bound to fail (see subs (3)), has not been settled by an appellate court; and the recent decision of a Full Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 did nothing to advance this cause. I shall return to this case later in these reasons. 11 In Jefferson Ford , the Full Court was comprised of Finkelstein, Rares and Gordon JJ. Finkelstein J summarily dismissed the standard adopted by Rares J in Boston Commercial in the following words at [21]: '[21] In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 Rares J attempted to describe the requisite standard under s 31A. After reviewing many cases, most from different and not necessarily analogous areas, he came down to the view (expressed at 157) that if there was "a real issue of fact to be decided" or "possibly, where there is a real issue of law" to be resolved the matter should go to trial. This, with respect, does not seem to be very far removed from the old O 14 test. So the standard must be found elsewhere.' 14 In Jefferson Ford at [73], Rares J merely observed that the parties accepted both before the primary judge and the Full Court, that the test to be applied under s 31A of the FCA was that which his Honour stated in Boston Commercial and that in those circumstances, it was not open to the Court to undertake a frolic of its own (again, my words, not his Honour's). 15 Gordon J, relevantly for present purposes, said (at [126]): '[126] ... assessment of whether a proceeding or a part of a proceeding has no reasonable prospects of success will necessarily require: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. The method by which such a claim or part of a claim will be assessed will vary depending on the nature of the cause of action, the identity of the parties, the pleaded facts and the evidence, if any, tendered.' 16 Whether one applies the standard adopted by Rares J in Boston Commercial , the indicia of assessment which Gordon J thought s 31A required to be addressed in Jefferson Ford or, applying the tasks which Finkelstein J thought were imposed on a judge when considering an application made in reliance on s 31A, this ground of the motion must fail.


case_title: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109


case_title: Vasyli v AOL International Pty Ltd (NG 219/96) (Lehane J, 19 August 1996, unreported)


case_text: Section 31A of the FCA was introduced effective 1 December 2005. The legislative context by which it was introduced and its historical antecedents are touched on by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [55] [60]. I think it is fair to say that the standard which s 31A sets, relevantly in the case of subs (2), '... no reasonable prospect of successfully prosecuting the proceeding ...', apart from the fact that it does not require the proceeding to be hopeless or bound to fail (see subs (3)), has not been settled by an appellate court; and the recent decision of a Full Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 did nothing to advance this cause. I shall return to this case later in these reasons.


case_text: Firstly, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of the operation of s 422B of the Migration Act ; see decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [67]. See also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] .


case_text: In any event there is no evidence before the court to demonstrate that the Tribunal member failed to provide the appellant with any opportunity to comment on the critical issues that arose for consideration and upon which the Tribunal member based her decision; see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] . 16 To the extent that the second ground of appeal seeks to raise a breach of s 424A(1) of the Migration Act , I do not consider that such an argument can succeed. As the learned Federal Magistrate observed, the appellant was unable to point to any documents or information which would have fallen within the provisions of s 424A(1).