case_text: The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.


case_outcome: cited

case_title: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286


case_title: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452


case_title: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452


case_text: The substantive requirements to be satisfied to constitute a union (s 76(1)(c)-(f)) or a person (s 75B(1)(a)-(d)) an accessory to a contravention of s 45E are, for present purposes, substantially identical. What is required is that the Court be satisfied (in the language of s 76(1)) that the union or the person concerned: (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision Common to these alternatives is the requirement that the alleged accessory acted with knowledge of the essential matters which went to make up the contravention whether or not the accessory knew that those matters amounted to a contravention of s 45E: CEPU at [188]; Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667. 13 I need only refer briefly to this matter and then only for s 76 civil penalty proceedings purposes. This matter has been considered at length in CEPU at [29]-[38]. Section 76 proceedings are civil proceedings. As such, by virtue of s 140 of the Evidence Act 1995 (Cth), it attracts the civil standard of proof on the balance of probabilities. Accordingly, I must be satisfied that the ACCC has established that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that BLL and the CFMEU, an officer of the CFMEU, or an agent of the CFMEU or of an officer thereof, made one or more arrangements or arrived at one or more understandings within the meaning of s 45E: CEPU at [38]. 14 I will later in these reasons make a number of rulings on evidentiary matters. For ease in exposition I will here refer to evidence which may be in issue, but without prejudice to what I have to say later.


case_outcome: applied

case_text: The case law in this country is discordant on whether one party to a proceedings can seek to tender admissions made in a witness statement or affidavit filed and served by another party in that proceeding pursuant to rule of court or court order, but who does not call the maker of that statement or read that affidavit. On one view, the statement or affidavit remains subject to legal professional privilege; on the other, filing and service operates, without more, as a full or limited waiver: see generally Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 at [12] - [19] where the case law has been helpfully reviewed by Gordon J. 125 I am prepared to assume for present purposes that Sutton and Noonan's communications with the CFMEU's and Noonan's solicitors for the purpose of preparing their statements were confidential communications: cf Cadbury at [11]. The statements themselves were filed and served for the purposes of the proceedings pursuant to a number of directions made by Gyles J. Their service on the ACCC was subject to the implied undertaking given by the parties to the Court not to use any document produced to them in the course of the proceeding otherwise than in relation to the proceeding: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The use proposed by the ACCC in this case raises no issue in relation to the implied undertaking: cf Cadbury at [20]-[22]. The only question arising from that use is one of privilege. Assuming the statements to be privileged prior to service, whether or not it subsists after their service falls to be determined by the common law and not by the Evidence Act , the provisions of that Act having no applications to a disclosure so made: cf s 122. 127 The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] .


case_text: As I am in entire agreement with the conclusions reached by her Honour on the proper approach to be taken to the question in a case such as the present particularly in light of observations made by the Full Court of this Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [25] my comments will be brief. 126 As the Full Court observed in Liberty Funding in endorsing the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 that a party could tender, as an admission, parts of an affidavit sworn by the opposing party (at [25]): Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. Their Honours went on to point out (at [26]): This so-called "limited waiver" by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman [and Esso]. 128 I agree with her Honour's view of the approach that Liberty Funding mandates. It is the implied undertaking, not privilege, which in this case limits the use the ACCC can make of the statements, but that use is not inconsistent with, or precluded by, the undertaking. The tender is in the proceedings in which the statements were served. 129 I should add the following. First, I am satisfied having regard both to his stated position and responsibilities in 2003 and to the manner of his participation in events in this matter, that it is reasonably open to find that Sutton had authority to make representations on behalf of the CFMEU in relation to the matters the subject of his statement: see Evidence Act , s 87(1)(a) and (b). I should emphasise that to the extent that his statement contains admissions, they can only be used against the CFMEU: Evidence Act , s 83. 130 Secondly, I also am satisfied that Hensley's statement can be used against the CFMEU to the extent that it contains admissions. It is reasonably open to find that he had authority to act for the CFMEU in relation to the matters in which he participated and that the representations he made were within the scope of that authority: s 87(1)(b). Such admissions as he made are also able to be used in the case against him personally.


case_text: I am prepared to assume for present purposes that Sutton and Noonan's communications with the CFMEU's and Noonan's solicitors for the purpose of preparing their statements were confidential communications: cf Cadbury at [11]. The statements themselves were filed and served for the purposes of the proceedings pursuant to a number of directions made by Gyles J. Their service on the ACCC was subject to the implied undertaking given by the parties to the Court not to use any document produced to them in the course of the proceeding otherwise than in relation to the proceeding: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The use proposed by the ACCC in this case raises no issue in relation to the implied undertaking: cf Cadbury at [20]-[22]. The only question arising from that use is one of privilege. Assuming the statements to be privileged prior to service, whether or not it subsists after their service falls to be determined by the common law and not by the Evidence Act , the provisions of that Act having no applications to a disclosure so made: cf s 122.


case_text: As the Full Court observed in Liberty Funding in endorsing the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 that a party could tender, as an admission, parts of an affidavit sworn by the opposing party (at [25]): Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. Their Honours went on to point out (at [26]): This so-called "limited waiver" by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman [and Esso].


case_text: The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] .


case_text: I will assume the answers given to the ACCC by Sutton and Lancsar were confidential in the sense that they were given (a) in relation to one of the limited matters specified in s 155(1) of the TP Act and (b) in furtherance of the performance of the ACCC's functions under the TP Act in relation to those matters, but not otherwise: cf Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 110. This said, the use proposed to be made of the information so provided falls squarely within the scope of the purpose for which the answers were given, ie the ACCC's enforcement of the Act in respect of an alleged contravention of it. The information was not said to be the subject of any privilege. And while the answers were given under compulsion of law: ss 155(5) and (6A); there is no statutory preclusion of their use in civil as distinct from criminal: s 155(7) proceedings. Accordingly, to the extent that they contain admissions of a party to these proceedings, they are admissible against that party in accordance with the provisions of the Evidence Act : see ss 81 , 83 and 87 . 132 As I am not satisfied that the ACCC has established any of the contraventions of s 45E which it has alleged, no question of the accessorial liability of the first, third and fourth respondents arises. Accordingly I will order that the application be dismissed as it relates to those respondents. I also will order that the ACCC pay the costs of those respondents. I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 16 May 2008 Counsel for the Applicant: Mr N J O'Bryan SC with Mr C A Moore Solicitor for the Applicant: Australian Government Solicitor Counsel for the First and Third Respondents: Mr G Inatey SC with Mr J Pearce Solicitor for the First and Third Respondents: Taylor & Scott Solicitors Counsel for the Fourth Respondent: Mr M Gibian Solicitor for the Fourth Respondent: Paul Murphy and Associates Lawyers Date of Hearing: 3, 4, 5 and 13 September 2007 Date of Judgment: 16 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/678.html


case_text: I note that the original respondent to this appeal is the Minister for Immigration and Multicultural Affairs. Following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 , I order that the Refugee Review Tribunal be joined as second respondent to these proceedings. No specific Refugees Convention claims were made by or on behalf of the appellant wife who relied on membership of the appellant husband's family unit. In the protection visa application and before the Tribunal the appellant husband claimed a well-founded fear of persecution on grounds of religion and political opinion. He claimed that he was a member of the Bharatiya Janata Party ('BJP'), that he supported victims of the Gujarat train massacre and due to such support was persecuted by Muslim political parties and extremist Muslims. The appellant husband claimed to have suffered property damage, to have been attacked resulting in hospitalisation and to have received threats. On 23 December 2003 the Tribunal invited the appellants to a hearing and on 13 February 2004 the Tribunal was advised in writing that the appellants did not wish to attend. The appellants did not attend the hearing and the Tribunal proceeded to determine the matter on the evidence available to it in their absence as permitted by s 426A Migration Act 1958 (Cth) ('the Act').


case_text: 175 provides: " 175 The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with." This section requires there to be an actual assessment as a condition of its operation: FJ Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360. It does not create a valid assessment where none has been made at all. A taxpayer dissatisfied with an assessment may object against it in the manner set out in Part IVC of the TAA. Section 177(1) in turn provides: " 177(1) The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct." At [61]ff Kenny J rejected the submission that the assessment was provisional or tentative. In so doing she reviewed the decisions of the High Court in Hoffnung, Bloemen and Richard Walter . Her Honour noted (at [63]) that in Bloemen : "Mason and Wilson JJ, with whom Stephen J agreed, said (at 378): The Bloemen notice of assessment is in form an assessment. It sets out the ascertainment of the taxpayer's taxable income and the tax payable thereon. It is therefore appropriate to bring s 177(1) into operation. Its production will put beyond contention the due making of the assessment so that the Court cannot find that no assessment was made or that, if made, it was made for an inadmissible purpose. The Simons notice, if read with the adjustment sheet, is more debatable. However, we read it as a definitive assessment by the Commissioner intended to create a legal liability to pay the tax specified, coupled with an intimation that the Commissioner will review the taxpayer's liability in a certain event. If it be assumed that the Commissioner lacks power to amend the assessment in the circumstances contemplated this does not affect our conclusion. It merely means that the Commissioner is mistaken in supposing that he has power to review. Accordingly, the notice of assessment will, on production, bring s 177(1) into play." I equally am satisfied that the assessment was intended to, and did, create a definitive liability notwithstanding that the Commissioner has acknowledged that Futuris' liability could be reviewed at a future date after the Division 19A Part IVC proceedings were complete: cf Bloemen , above at 377-378; ANZ Banking Group , at [70]. As I earlier indicated, notwithstanding the different factual settings of this matter and ANZ Banking Group , I consider there is no operative distinction in principle between the two cases. For this reason I have not analysed the relevant case law in a way that I would otherwise have done. I respectfully agree with Kenny J's analysis. Its application to the facts of this case leads necessarily to the conclusion that the Second Amended Assessment attracts the protection of s 175 and s 177(1) of the ITAA. Accordingly, such relief as Futuris is entitled to in respect of that assessment is in Part IVC proceedings and not by way of judicial review under s 39B of the Judiciary Act . Having dealt with the application on its merits, I will make no order on the Commissioner's notice of motion but will order that the application be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 August 2006 Counsel for the Applicant: Mr B Sullivan SC with Mr T Thawley Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for the Respondent: Mr A Pagone QC with Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 April 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1096.html


case_outcome: followed

case_text: An internal ATO email of 6 May 2004 responding to a Part IVA paper relating to Futuris commented of a paragraph in the position paper: "4. PARAGRAPH 4.2 In my opinion, this is one of the two matters covered in the response which is truly relevant to the argument of whether $82,950,088 should be included, under Part IVA , in Futuris' assessable income for the 1998 year of income in respect of the scheme defined in the Position Paper. At the Part IVA Panel meeting of 3 December 2003, the matter covered by this paragraph was raised with the Panel. The Panel advised the assessment should be made on the full amount of $82,950,088 and, depending on the outcome of the Division 19A issue, a compensating adjustment can be made at a later stage if necessary. No doubt the Panel came to this view in order to 'protect the Revenue'. In my opinion, a recent Federal Court case, Australian & New Zealand Banking Group Ltd v Federal Commissioner of Taxation [2003] FCA 1410 , is relevant here. In that case, pursuant to section 39B of the Judiciary Act 1903 , the taxpayer contended that amended assessments that issued as a result of the application of Part IVA were invalid assessments because each of the amended assessments included an amount that had already been returned by the taxpayer as assessable income. The Court found against the taxpayer. I must point out that this decision is subject to appeal." (iv) A document entitled "Reasons for Decision" of 20 August 2004 noted: "9. Thus, in the absence of the First Scheme, immediately after the Bristile shares were transferred from Vockbay to Walshville, the indexed cost base of the Walshville shares to Futuris would probably have been $2. Consequently, I consider that as a result of the First Scheme being carried out, the indexed cost base of the Walshville shares to Futuris was increased by $82,950,088 (following the Division 19A adjustment) from $2 to $82,950,090 (for the purpose of this and the following paragraph, I am ignoring the $19,950,088 possible error in regard to the capital gain returned by Futuris on the float of Walshville that is now subject to appeal. This is in line with the recommendation made by the Part IVA Panel at its meeting of 3 December 2003 refer to para. 34 below)." The par 34 referred to reflects the email comment in (iii) above though with the additional observation: "Obviously, we will not pursue recovery for both amounts of tax, penalty and 170AA interest/general interest charge involved with the two $19,950,088 adjustments." The "Reasons" went on to consider the making of a compensating adjustment under s 177F(3) if a Part IVA assessment was issued for the full amount of $82,950,088 even though the First Amended Assessment included the $19,950,088. It noted: "The Panel recommended that the Part IVA assessment should be made on the full amount of $82,950,088 and, depending on the ultimate outcome of the Division 19A issue, a compensating adjustment can be made if necessary. No doubt, the Panel came to this decision to protect the Revenue. If, as I recommend, an amended assessment issues including an amount under Part IVA of $82,950,088, then obviously we would only pursue payment of the tax, penalty and 170AA interest/general interest charge involved with one of the two $19,950,088 adjustments. Futuris has already paid half of the tax, penalty and 170AA interest/general interest charge involved with the $19,950,088 Division 19A adjustment. The Division 19A amended assessment is currently subject to appeal..." (v) Comments reflecting those in the above "Reasons" were repeated in a document entitled "ATO Final Audit Report" with the following recommendations being made that the Commissioner: "(a) determine under subsection 177F(1) that $82,950,090 be included in the assessable income of Futuris for the 1998 year of income; (b) determine under subsection 177F(2) that $82,950,090 be deemed to be included in the assessable income of Futuris for the 1998 year of income under subsection 160ZO(1); and (c) at this stage does not determine under subsection 177F(3) that any compensating adjustments be made to the assessable income of Futuris for the 1998 year of income any such determination/s should be made when the Part IVA and Division 19A matters have been finalised." I would note in passing that the making of a s 177F(1) determination forms part of the "making of an assessment" for the purposes of s 177(1) of the Act: see Australia and New Zealand Banking Group Ltd v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 at [32] (" ANZ Banking Group "). I would also note that the Notices of the First Amended Assessment and of the Second Amended Assessment have been produced in this proceeding.


case_outcome: referred to

case_text: is a voluminous body of case law on the interpretation and effect of s 175 and s 177. For present purposes it is sufficient to say that the protection of s 177(1) and s 175 will be lost (a) if the Commissioner has not made a bona fide attempt to exercise the power of assessment; or (ii) if the alleged "assessment" is tentative or provisional in that it does not create a definitive liability: see e.g. Briglia v Federal Commissioner of Taxation (2000) ACT 4247 at 4249 where many of the cases relied upon in the present proceeding are referred to; see also ANZ Banking Group , at [33]-[37]. It is unnecessary here to repeat what has earlier been said about Div 19A of Pt IIIA of the ITAA other than to reiterate that it provides for the working out of capital gains and losses where assets have been transferred between companies under common ownership. Part IVA of the ITAA is an anti-avoidance regime introduced into the Act in 1981. It is brought into operation upon the making of a determination by the Commissioner pursuant to s 177F of the Act. That section provides the Commissioner with a discretion to cancel a tax benefit where such a benefit has been, or would but for the section be, obtained in connection with a scheme to which the Part applies. It is unnecessary for present purposes to describe the scheme that the Commissioner was satisfied existed relating to the Walshville float, although I would note that, in the Commissioner's view, it involved both declarations of dividends by Bristile and Vockbay and the capitalisation of debts owed to Vockbay and Futuris respectively following those declarations of dividend.


case_text: contentions are premised on the uncontroversial proposition in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [57] that: "... a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction." From the Commissioner's discovered documents set out in part earlier it is contended that it is clear that the Commissioner incorrectly formed the view: (a) that he was entitled to calculate the taxable income by aggregating the amounts of $19,950,088 and $82,950,090 and thus by purporting in effect to reduce the cost base by the aggregate amount of $102,900,178, whereas Futuris had only ever treated the provisions of Division 19A as increasing cost base by the amount of $82,950,090; (b) that he was entitled to calculate the taxable income of Futuris in an amount which was $102,900,178 greater than the taxable income as calculated under the Original Assessment notwithstanding that such taxable income was $19,950,088 greater than the highest amount of the taxable income which the Commissioner contended to be the taxable income on which tax should be paid for the 1998 year; (c) that he would, if his views in relation to the operation of Division 19A proved to be correct, at some future time make a compensating adjustment pursuant to s 177F(3) presumably for the purpose of reducing the taxable income by an amount of $19,950,088 (although the amount of any future contemplated compensating adjustment was not identified). The Commissioner therefore took the view that he was entitled to overstate the taxable income in making the Second Amended Assessment because it could subsequently be reduced pursuant to a compensating adjustment under s 177F(3) when such was not the case. In this, it is said, the ANZ Banking Group case (outlined below) was distinguishable.


case_text: consequence of the Commissioner's purporting to issue an "assessment" stating amounts of "taxable income" and "tax payable" which he knew to be incorrect were that the purported "assessment" was an unauthorised exercise of the power to assess and was not a "valid assessment". Reliance in this is placed on the decision of the Full Court of this Court in Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175. Alternatively, it is said relying upon observations of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 237, that the Second Amended Assessment was not definitive of the taxpayer's liability. Because of the envisaged later use of s 177F(3) to revise the figures in some way, the notice of assessment was issued subject to "revision" in the sense discussed in Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 and in Richard Walter .


case_text: consequence of the Commissioner's purporting to issue an "assessment" stating amounts of "taxable income" and "tax payable" which he knew to be incorrect were that the purported "assessment" was an unauthorised exercise of the power to assess and was not a "valid assessment". Reliance in this is placed on the decision of the Full Court of this Court in Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175. Alternatively, it is said relying upon observations of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 237, that the Second Amended Assessment was not definitive of the taxpayer's liability. Because of the envisaged later use of s 177F(3) to revise the figures in some way, the notice of assessment was issued subject to "revision" in the sense discussed in Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 and in Richard Walter . At [61]ff Kenny J rejected the submission that the assessment was provisional or tentative. In so doing she reviewed the decisions of the High Court in Hoffnung, Bloemen and Richard Walter . Her Honour noted (at [63]) that in Bloemen : "Mason and Wilson JJ, with whom Stephen J agreed, said (at 378): The Bloemen notice of assessment is in form an assessment. It sets out the ascertainment of the taxpayer's taxable income and the tax payable thereon. It is therefore appropriate to bring s 177(1) into operation. Its production will put beyond contention the due making of the assessment so that the Court cannot find that no assessment was made or that, if made, it was made for an inadmissible purpose. The Simons notice, if read with the adjustment sheet, is more debatable. However, we read it as a definitive assessment by the Commissioner intended to create a legal liability to pay the tax specified, coupled with an intimation that the Commissioner will review the taxpayer's liability in a certain event. If it be assumed that the Commissioner lacks power to amend the assessment in the circumstances contemplated this does not affect our conclusion. It merely means that the Commissioner is mistaken in supposing that he has power to review. Accordingly, the notice of assessment will, on production, bring s 177(1) into play."


case_title: Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39


case_text: case against the Commissioner, it is said, is (at its absolute highest) that the Commissioner misconstrued the terms of s 177F(1). Futuris maintains, presumably, that the Commissioner could have given effect to the inclusion of the whole of the $82,950,090 tax benefit sought to be cancelled by adding only $63,000,002 to the first amended assessment. To this the Commissioner says: (a) an erroneous view of the terms of s 177F(1) does not amount to bad faith; (b) the fact that he might have achieved his result through an alternative means does not mean that the construction acted upon was not open to him. The Commissioner has a discretion either to include only part of a tax benefit under s 177F(1) or to include the whole of the amount and, at some time thereafter, to make a compensating adjustment under s 177F(3): Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [114] and [115]; ANZ Banking Group at [48], [49], [57], [73]; Asiamet (No 1) Resources Pty Ltd v Commissioner [2003] FCA 35 ; (2003) 126 FCR 304 at 340.


case_text: case against the Commissioner, it is said, is (at its absolute highest) that the Commissioner misconstrued the terms of s 177F(1). Futuris maintains, presumably, that the Commissioner could have given effect to the inclusion of the whole of the $82,950,090 tax benefit sought to be cancelled by adding only $63,000,002 to the first amended assessment. To this the Commissioner says: (a) an erroneous view of the terms of s 177F(1) does not amount to bad faith; (b) the fact that he might have achieved his result through an alternative means does not mean that the construction acted upon was not open to him. The Commissioner has a discretion either to include only part of a tax benefit under s 177F(1) or to include the whole of the amount and, at some time thereafter, to make a compensating adjustment under s 177F(3): Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [114] and [115]; ANZ Banking Group at [48], [49], [57], [73]; Asiamet (No 1) Resources Pty Ltd v Commissioner [2003] FCA 35 ; (2003) 126 FCR 304 at 340. Her Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known.


case_text: Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known. Kenny J concluded on this issue at [69]-[70]: "In this case, the Commissioner apparently considers that, depending upon the outcome of the Pt IVC proceeding and the objection process, it may well be appropriate for him to issue a further amended assessment, in consequence of the need to make a compensatory adjustment or otherwise to give effect to the decision of the Court. It does not follow from this, however, that the amended assessment is tentative or provisional in the Hoffnung sense. To adopt what Hill J said in McCleary at 322: In summary, it can be said that the conclusion that an assessment is tentative will ordinarily emerge from an examination of the assessment itself, as in Hoffnung . The mere indication that an assessment will be reviewed later does not require the conclusion that the assessment is tentative ... Nor will an assessment be regarded as tentative in the relevant sense, even if two assessments have been issued to different taxpayers concerning the same income with the consequence that one of them must necessarily be reduced to nil: Richard Walter . Provided the notice of assessment purports to create a definitive liability and at least there is no evidence to the contrary, the assessment will not be tentative . (Emphasis in original) In the present case, the evidence falls short of demonstrating that the amended assessment in question was tentative or provisional. It is not to be treated as tentative, simply because officers of the Commissioner contemplated that it might be the subject of a compensatory adjustment in the future, or may not entirely survive a proceeding under Pt IVC." Finally, her Honour acquitted the Commissioner of bad faith, no concession having been made that he assessed the Bank on facts known to be wrong. She went on to observe (at [73]): "But even on the assumption that the Commissioner knew that he might have proceeded in error and that ANZ might succeed in the Pt IVC proceeding in showing the amended assessment is excessive, I would not infer bad faith on the Commissioner's part. Even if the Commissioner's approach is erroneous, I accept that, for the reasons given by his counsel, it would be open to the Commissioner to take the view that his approach is necessary to protect the revenue and that any unfairness to ANZ can be remedied at the end of the objection, review and appeal processes." (Emphasis in original) As I earlier indicated, Futuris has submitted that ANZ Banking Group is distinguishable; s 177F(3) cannot be relied upon by the Commissioner in the present matter to correct the figures stated in the Second Amended Assessment; and that the Commissioner deliberately stated amounts in that assessment which he knew to be incorrect. Futuris accepts that in ANZ Banking Group , s 177F(3)(a) clearly authorised the making of a compensation adjustment for the reason that it was the implementation of the scheme in that case which led to the inclusion in the Bank's assessable income of the amount of $29 million pursuant to s 25(1). The Commissioner's contention, it is said, is that for s 177F(3) purposes the amount of $19,950,088 which was included in the First Amended Assessment would not have been included in the assessable income of Futuris if the Part IVA scheme had not been carried out. Of this, Futuris submits that: "53. The difficulty which the Commissioner's view encounters is that he contends that the Pt IVA 'scheme' comprised those events which increased the cost base of the Walshville shares by the amount of $82,950,088 by a transaction which attracted the operation of the anti-avoidance provisions of Division 19A. In essence, the Commissioner characterises the Pt IVA scheme as a scheme to obtain a cost base transfer in the amount of $82,950,088, thus increasing the cost base of the Walshville shares by that amount, and reducing the net capital gain by the same amount. 54. Consequently the effect of the two amended assessments may be summarised as follows: (a) by the First Amended Assessment the Commissioner contends that the 'scheme' had the consequence that Division 19A operated to increase the cost base of the Bristile shares by an amount of only $63M that is, $19,950,088 less than Futuris contends; and (b) by the Second Amended Assessment the Commissioner contends, in the alternative, that Pt IVA operated effectively to eliminate the entire cost base transfer of $82,950,088 contended for by Futuris. 55. Thus it can be seen that the Commissioner's contentions are truly alternative in respect of the amount of $19,950,088. With respect to that amount, the Commissioner relies on one or other of Division 19A or Pt IVA but not both. 56. Returning to address the potential application of s 177F(3)(a), the Commissioner was incorrect on the view that it would supply a basis for making a ' compensating adjustment '. Paragraph 177F(3)(a) could only apply if (a) the First Amended Assessment reflects the inclusion of a net capital gain in the assessable income of Futuris; and (b) that net capital gain would not have been included in the assessable income of Futuris if the Pt IVA scheme had not been carried out. 57. However, the Commissioner's contention is in fact to the opposite effect. The Commissioner contends that the amount of $19,950,088 would have been included in the assessable income of Futuris if the scheme had not been carried out. He has assessed under Pt IVA on the contention that, but for the scheme, the amount of $82,950,088 would have been included in the assessable income of Futuris." The Commissioner's response to this is that the present matter is relevantly indistinguishable from ANZ Banking Group . In that case, by virtue of the scheme, $29 million was included in the taxpayers' assessable income irrespective of Part IVA , in consequence of s 25(1) of the ITAA. Here, by virtue of the scheme, approximately $19 million was included in Futuris' assessable income, irrespective of Part IVA , in consequence of Division 19A. In ANZ Banking Group the tax benefit for s 177F(1) and s 177C(1)(a) purposes was the $65 million; here, it was $82 million. If the scheme in ANZ Banking Group had not been carried out, the $29 million would not have been included in the Bank's assessable income; here if the Walshville float scheme had not been carried out, $19 million as assessed would not have been included in Futuris' assessable income. There is simply no reason, it is said, to give s 177F(3) the construction contended for by Futuris. In the Commissioner's view, both ANZ Banking Group and the present matter have alternative bases for including the erroneously described double sums in the respective taxpayer's assessable income. However, the Commissioner goes on to say that, given the present uncertainty as to how the $19 million was calculated, it may be that the two bases may in fact be found in this case to be cumulative. The Part IVC proceedings in relation to the First Amended Assessment will clarify that situation. For my own part, I agree with the Commissioner's submission. The present matter is one which falls naturally within both the language and the evident purpose of s 177F(3). But even if I am wrong in this, I equally am satisfied that at best all that Futuris has shown is that in making a definitive assessment (i.e. the Second Amended Assessment) see below the Commissioner proceeded upon a mistaken view of the applicability of s 177F(3). That mistake did not invalidate the assessment or evidence bad faith on the Commissioner's part in the exercise of the power to assess. The effect of the mistake could, and should properly, be addressed in Part IVC proceedings. On the material before the Court I am not satisfied that the Commissioner deliberately engaged in what the applicant calls double counting. When the Part IVA determinations were made the Commissioner could then have made a s 177F(1) determination to include only part of the tax benefit in Futuris' assessable income (i.e. $82 million - $19 million). Rather, in view of the facts as he then understood them to be, he chose to include the totality of the benefit in the knowledge that there was some likelihood of the need later to make a compensating adjustment. This was a course he was entitled to take in the circumstances given that (a) the Division 19A proceedings in respect of the First Amended Assessment had not been determined; (b) there was uncertainty about how the $19 million was calculated in any event; and (c) his view that there was a need to protect the revenue by making the Second Amended Assessment as he did. The Commissioner was, in the circumstances, entitled to defer making a compensation adjustment: see ANZ Banking Group .


case_text: Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known.


case_title: Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375


case_text: In considering the Notice to Produce, it is necessary to bear in mind that it differs from a subpoena in that it is addressed to a party who will generally have a greater awareness of the issues, details and history of the matter than a stranger to the proceedings: see Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555 at 557-8. By O 33 r 12 of the Federal Court Rules ("FCR"), a Notice to Produce has the same coercive effect as a subpoena issued under O 27 of the FCR: see Potts v Dennis James & Co Pty Ltd (1995) 17 ACSR 770 at 779. Under O 27 r 3(4)(a), a subpoena must identify the document to be produced. The Notice to Produce also has the effect that in the event of non-production, secondary evidence can be given of the contents.


case_title: Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555


case_text: for the respondent has referred me to the decision of Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 to support the proposition that the onus lies upon the applicant to establish the required dominant purpose as an objective fact although based upon the evidence which is given. Counsel for the respondent also referred to the decision of the New South Wales Court of Appeal in Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519; [2005] NSWCA 321 , particularly per Tobias JA at [57] [58].


case_title: Westpac Banking Corporation v 789Ten Pty Limited (2005) 55 ACSR 519; [2005] NSWCA 321


case_text: applicant also relies on s 164 of Schedule 1, which permits a member of an organisation to apply for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules. As the applicant noted, in R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 at 212-213, Mason and Murphy JJ discussed the precursor of s 164, including s 164(4). ( I refer to their Honours' observations, without setting them out.) Section 164(4) provides for the Court to make interim orders "that it considers appropriate ...". Further, under s 164B(3) of Schedule 1, the Court, in considering an application under s 164 (or s 164A) , may, by an order, make a declaration that the whole or a part of the rules of the organisation contravene s 142 or that the rules of the organisation contravene that section in a particular respect: see Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431 at 481.


case_text: applicant also relies on s 164 of Schedule 1, which permits a member of an organisation to apply for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules. As the applicant noted, in R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 at 212-213, Mason and Murphy JJ discussed the precursor of s 164, including s 164(4). ( I refer to their Honours' observations, without setting them out.) Section 164(4) provides for the Court to make interim orders "that it considers appropriate ...". Further, under s 164B(3) of Schedule 1, the Court, in considering an application under s 164 (or s 164A) , may, by an order, make a declaration that the whole or a part of the rules of the organisation contravene s 142 or that the rules of the organisation contravene that section in a particular respect: see Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431 at 481. I am not persuaded that the applicant has made a sufficient showing that rule 62 does not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend. In this context, it seems to me that it must be borne in mind that rule 62(c) requires that notice of the proposed Special General Meeting be given to each shop steward, presumably so that such notice can be conveyed to the members. Rule 62(e) provides that, in such a case as this, the Meeting be held within 35 days of the receipt of the petition, and at a time and place determined by the Branch Committee. As counsel for Mr Jackson noted, the power to appoint a time and place must be exercised bona fide and for the purpose for which it was conferred in furtherance of the democratic participation of the members in the Meeting: compare Allen v Townsend 31 FLR at 483-488 and Scott v Jess (1984) 3 FCR 263 at 287.


case_text: parties did not dispute the nature of the test to be applied on an application for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. In Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. Broadly speaking, on the present application, counsel approached the matter by examining the "serious question" issue and the "balance of convenience", noting at the same time that it was "the duty of the court to do justice as best it can".


case_title: Conquo v Jackson [2009] FCA 45


case_text: is little dispute about what is intended by the words "oppressive, unreasonable or unjust". In Moffitt v The Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174 at 175, a Full Court adopted the meaning given by Deane J to these words in Municipal Officers' Association of Australia v Lancaster [1981] FCA 151 ; (1981) 54 FLR 129 at 165, where his Honour said: Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful ... To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play ... In effect, the applicant argued that the rules under challenge are oppressive, unreasonable or unjust because they fail to make proper provision for the control of the Branch committee by the members as opposed to a clique of members.


case_title: Municipal Officers' Association of Australia v Lancaster [1981] FCA 151 ; (1981) 54 FLR 129


case_outcome: discussed

case_text: in support of the submission that rule 62 did not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend, counsel for the applicant relied on Griffiths v Ansett Pilots Association [2001] FCA 1215 , in which Ryan J said, at [9]: It is common ground that the control provided for by the rules must be available in a practical sense and must not be susceptible to obstruction or unreasonable delay by the committee concerned. The related general observation can be made, in this context, that the reasonableness of the rules of an organisation, within the meaning of s 196 of the Act, is to be measured by what is practicably achievable under the rules in the actual circumstances in which they operate. (Section 196 was a precursor to s 142 of Schedule 1. ) Ryan J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ. As Ryan J noted in Griffiths [2001] FCA 1215 , at [14], the rules under consideration in that case contemplated that each general meeting be held at only one place prescribed by the proper body or officer. After recording counsel's submission that the rules of the Association did not infringe s 195(1)(b)(iv) as the Act then stood, his Honour said, at [25]-[26]: ... "control" as used in that provision, extends to control between elections. It is possible, particularly for an organisation with relatively few members, to provide for such control by granting a reasonably small number of members the facility to require the calling of a general meeting if such a meeting has the power to give directions to the relevant committee. No such power appears to be reposed by the rules in their present form in a general meeting of the Association. Moreover, the facility to require a general meeting which is accorded by rule 34 of the Association's rules is severely circumscribed by the location of its members and the nature of their work. As well, the fact that a single general meeting may only be convened at one place and at one place and at one time, in the light of the geographic distribution of the Association's members and their variously rostered working hours and the restrictions on voting by proxy, precludes that facility from according to members the requisite degree of control. ... It might have been otherwise had the rules permitted the calling of general meetings at several locations and staggered hours to maximise the opportunity for members to attend, and had the rules permitted the votes cast at such meetings to be aggregated for the purpose of deciding whether a binding direction had been given to the COM. However, while the rules remain in their present form, I do not consider, putting to one side new rule 56, that they provide in the requisite sense for control of the COM by the members. The applicant argued that Ryan J's ruling in Griffiths [2001] FCA 1215 was apposite to this case. Mr Jackson did not dispute the principles outlined by his Honour, but affirmed that the present case was a different one from Griffiths [2001] FCA 1215. In effect, the applicant's case was that, having regard to the nature of the members' employment, general meetings were not an adequate controlling mechanism and that a plebiscite should be the means by which the governing body was controlled by members but that a plebiscite could not operate in this way under the Union's rules. To make good the first part of this argument, the applicant again relied on Ryan J's analysis in Griffiths [2001] FCA 1215 , where, citing Boland v Munro (1980) 48 FLR 66 , his Honour said at [28]: Control [in the relevant sense] is not confined to the control which may be said to be exercisable through the ballot box at elections but extends, in a limited sense, to control between elections. ... His Honour accepted that, "control", in the present context, meant a power to check or restrain and not dominating control: [29]. In Griffiths [2001] FCA 1215 at [40] - [41] , Ryan J concluded that: [I]n evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. ... ... Because I have been persuaded ... that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure. As Mr Jackson pointed out, however, in Griffiths [2001] FCA 1215 , Ryan J was concerned with a meeting of a national union, whose membership was dispersed through-out Australia and more than half of whom were likely at any one time to be preparing for flight duties. I accept, as Mr Jackson submitted, that the present case might well be relevantly distinguishable from Griffiths . On the evidence as it presently stands, it cannot be said that there is necessarily a Griffiths -type situation. Indeed, as Mr Jackson reiterated, there was some evidence before the Court that 10,600 Branch members (out of a total of 15,449) listed their home address at a location within a 70 kilometre radius of Dallas Brooks Hall in central Melbourne. Moreover, none of the evidence before the Court about attendance at Branch meetings apparently related to attendance at Special General Meetings.


case_text: J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ.


case_title: Lawley v Transport Workers' Union of Australia (1987) 22 IR 114


case_title: Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59


case_title: Gordon v Carroll (1975) 27 FLR 129


case_title: Boland v Munro (1980) 48 FLR 66

case_text: effect, the applicant's case was that, having regard to the nature of the members' employment, general meetings were not an adequate controlling mechanism and that a plebiscite should be the means by which the governing body was controlled by members but that a plebiscite could not operate in this way under the Union's rules. To make good the first part of this argument, the applicant again relied on Ryan J's analysis in Griffiths [2001] FCA 1215 , where, citing Boland v Munro (1980) 48 FLR 66 , his Honour said at [28]: Control [in the relevant sense] is not confined to the control which may be said to be exercisable through the ballot box at elections but extends, in a limited sense, to control between elections. ... His Honour accepted that, "control", in the present context, meant a power to check or restrain and not dominating control: [29]. In Griffiths [2001] FCA 1215 at [40] - [41] , Ryan J concluded that: [I]n evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. ... ... Because I have been persuaded ... that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure.


case_title: Scott v Jess (1984) 3 FCR 263

case_text: am not persuaded that the applicant has made a sufficient showing that rule 62 does not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend. In this context, it seems to me that it must be borne in mind that rule 62(c) requires that notice of the proposed Special General Meeting be given to each shop steward, presumably so that such notice can be conveyed to the members. Rule 62(e) provides that, in such a case as this, the Meeting be held within 35 days of the receipt of the petition, and at a time and place determined by the Branch Committee. As counsel for Mr Jackson noted, the power to appoint a time and place must be exercised bona fide and for the purpose for which it was conferred in furtherance of the democratic participation of the members in the Meeting: compare Allen v Townsend 31 FLR at 483-488 and Scott v Jess (1984) 3 FCR 263 at 287.


case_text: I have power to set aside an order made under s 25(2B)(bb): s 25(2B)(bc). That power may be exercised even if the order dismissing the appeal has been formally entered: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61. 4 It seems to me that it would be appropriate to set aside the order made on Wednesday, 14 November if I thought the applicant had good prospects of succeeding on the appeal. 5 The applicant seeks to appeal from an order of a Federal Magistrate made on 13 August 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 2 January 2007 and handed down on 5 January 2007.


case_outcome: considered

case_text: As to the claim that the Tribunal's conclusions were not based on a rational or logical foundation, it must first be said that there is something of a controversy as to whether this is a ground of jurisdictional error. In VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286 , 10 November 2004, a Full Court of this Court held that the current state of the law is that want of logic in the reasons of the Tribunal is not an available ground of review, see para 18.


case_text: That Court did so, having considered, materially, a then recently given decision of the High Court, Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165. I note that the learned authors of Aronson and others , at page 265 state of this decision of the High Court that it, " approved review for irrationality or illogicality ." There is, with respect, certainly reason so to regard the High Court's decision in S20 ; see para 52 in the joint judgment of McHugh and Gummow JJ, with which, at para 173, Callinan J agreed; see also para 138 in the reasons of judgment of Kirby J. Even assuming, though, that want of logic or irrationality is a permissible ground of jurisdictional error review, this is not a case, in my opinion, in which such a ground can be made out. 19 There were manifest inconsistencies of the kind highlighted by the Tribunal in its correspondence, and subsequent reasons. Those reasons, having regard to the inconsistencies highlighted, do provide a logical and rational basis upon which the Tribunal could have concluded, as it did, that it was not satisfied that the claim for a protection visa had been made out. 20 The final ground of challenge is that the Tribunal did not take into account the information provided in response to the s 424A letters by the appellant. As I have mentioned, though, these letters were expressly quoted in the Tribunal's reasons, and it is evident that the information was taken into account by the Tribunal in reaching its conclusions.


case_text: long and the short of it is, the application is one which has failed a registration test. Every opportunity has been given for the Applicants to amend the application or at least provide some hope, in a meaningful way, that an amendment is likely which would provide a basis for retention of the case in the Court's list. There is no basis for forming an opinion that this is anything other than a case which does not warrant the further expenditure of public funds in terms of judicial time and also in terms of the investment of public funds in a Respondent State considering the case and attending. There are bases then upon which the application may be dismissed and should be dismissed under s 190F(6). I canvassed the background to that particular provision in the legislation in a decision which I gave in another case: Christie George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518. I shall not repeat what I there stated. There is another basis upon which this application should be dismissed and it is one which ought not be forgotten. That is there is a default of appearance. In fact, more than one, there are multiple defaults of appearance. Defaults of appearance, in themselves, provide a basis upon which an application may be dismissed. It is understandable that in some circumstances, for reasons about which a judge may be unaware, the State may wish, for its own particular reasons, not to move under s 190F(6) but rather prefer to see a dismissal occur in an appropriate case of the court's own motion. Those same sentiments, with respect, do not apply where the practice and procedure of a court is not observed. In the ordinary course of events, one might expect a respondent, particularly a public respondent, acting responsibly to move for dismissal in a case where there is an event of default in the ordinary practice and procedure of a court, as a model litigant would move in other cases involving the wider interests of the public. Be that as it may, there is then a basis in terms of default under the practice of the court as well as under s 190F(6) , for the dismissal of this application. The order that I make is that the application be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 April 2009 Solicitor for the Applicant: No appearance by the Applicant Solicitor for the First Respondent: Crown Solicitor of Queensland Solicitor for the Second Respondent: There was no appearance for the Second Respondent Date of Hearing: 27 March 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/325.html


case_text: Whether or not the applicant/cross-respondent was entitled to amend without leave need not be determined as the parties are agreed that the substance of the matter should be decided on the basis that the respondent/cross-claimant is to satisfy the Court that the test laid down by s 31A of the Federal Court of Australia Act 1976 (Cth) is met. There is a burgeoning number of authorities which have considered the relatively straightforward wording of s 31A. Many of the authorities are cited by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [58]; see also Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; (2006) 70 IPR 146 at [45]. Subsection (3) of s 31A of the Federal Court of Australia Act 1976 (Cth) makes it clear that the way in which the previous regime had developed should no longer govern the question. Beyond that I respectfully see little merit in this case in considering judicial paraphrases of ordinary English.


case_text: In my opinion, in this case I should follow the approach of Lindgren J. I also venture the view that, if s 31A had been in force at the time Lehane J gave his interlocutory decision, it more than likely would have been different. In short, I am not satisfied that this is one of those rare cases where it is appropriate to have this Court intervene by way of declaration in statutory process (see also in another context, Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49; [2007] FCA 1422 at [9] and [13]). 8 There is inevitably some overlap between the issues which arise in this proceeding, absent the amendment, and the applications for trade mark by or on behalf of the respondent/cross-claimant, which are now before the Registrar. It may be that a decision on one or more of those issues might be inconsistent with the trade marks being entitled to registration, if decided favourably to the applicant/cross-respondent. However, there is by no means an identity of issues. Therefore, a decision in this case would not be necessarily decisive of one or more of those applications before the Registrar. Furthermore, the Registrar would not be bound by any declaration that is made in a technical sense, and nor would any other party who joined in those proceedings. There is no claim for an injunction against the Registrar, and it is difficult to see any proper basis on which an injunction could be granted. 9 It is possible, but by no means certain, that some time and money might be saved if the declaration was decisive as to registrability, and no other party took any interest in the applications. That result is speculative. The possibility of inconsistent findings is not removed, because granting declarations is not the equivalent of actually deciding the applications before the Registrar on the same issues. The paragraphs of the statement of claim which refer to the respondent/cross-claimant's applications have, in effect, been superseded by events, as the respondent/cross-claimant is now "on the market" with beer being sold in connection with the mark "BAREFOOT". I am not persuaded that there is any legitimate way in which the validity of the applications for trade mark will arise in the proceeding as it stands without amendment. 10 The respondent/cross-claimant submits that the cross-claim should be determined first as a matter of logic and practicality. It is a relatively straight forward factual issue that could be promptly determined. Infringement, it is said, is a more complex issue which will take time both to prepare and hear. If the respondent/cross-claimant were to succeed in the cross-claim, it would be unnecessary to proceed with the action for infringement. It is also put that the original application to the Registrar was made prior to the proceeding for infringement being commenced. It is also said that the applicant/cross-respondent has shown no great expedition in relation to its prosecution of the claim for infringement and, in particular, has sought no interlocutory relief. It was also pointed out that the separate hearing of a cross-claim is not to be equated with isolating one out of a number of issues arising on a claim. 11 This submission has more legs than many of its kind. The non-use point is quite distinct and separate, and should be capable of relatively quick resolution. However, on balance, the risk of potential problems created by separately hearing the cross-claim and the claim in relation to the same trade mark need not, and should not, be run. The carrot of an early disposition of the cross-claim rendering infringement proceedings unnecessary is more apparent than real in view of the opportunities for appeal. There is the problem occasioned by witnesses being dealt with on more than one occasion (one such witness has been identified to date). There is always the risk of issues emerging in the course of running, which should be dealt with in a comprehensive manner. Furthermore, the applicant/cross-respondent has the benefit of a registered mark, and should be entitled to pursue an infringement action with expedition and no more complication than is necessary. I do not think that there has been any delay in the real sense on its part, such as would disentitle it to have its claim dealt with with appropriate expedition. I also take into account that finding successive times for hearing parts of a case is disruptive to the schedule of the Court and its resources.


case_text: I am relieved of the necessity of analysing the question that arises here ab initio, as it has been considered in the authorities to which I have been referred. In Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303 Lehane J, confronted with a similar question, refused to strike out a claim for a similar declaration. His Honour said (150 ALR at 360; 39 IPR at 309): "In the end, however, the question, on the footing that there is jurisdiction to make a declaration of the kind sought, is whether the case pleaded in support of that relief ... is so evidently hopeless that the paragraphs and prayers for relief should be struck out. It may be accepted that it will be a rare case where the court finds it appropriate to grant declaratory relief in relation to a pending trade mark application rather than allow the procedure under the Act to take its course. But it is now well established that, given jurisdiction, the provision by statute of a particular means of determining an issue in relation to which a declaration is sought does not necessarily mean that a declaration will be refused ...; the existence of the statutory procedure is a matter albeit an important matter to be taken into account in exercising the court's discretion." (Emphasis added.) In the event, his Honour was not satisfied at that stage that the case for declaration was hopeless and did not strike it out. However, on the final hearing, Lehane J declined to make the declaration and, in substance, was unpersuaded that the statutory process should be interfered with (see Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167 at [60] [65]).


case_title: Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303


case_text: A similar question in relation to the Patents Act 1990 (Cth) was determined by Lindgren J in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22. That, too, was decided prior to the introduction of s 31A of the Federal Court of Australia Act . In a typically thorough judgment, his Honour analysed the issues that arise and the many authorities relating to it, including the decision of Lehane J to which I have just referred. Summary dismissal was granted.


case_title: White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298


case_text: In the present case, the application for adjournment was not refused but was limited to one day to 28 November 2006 rather than ten days to 8 December 2006 which was the preferred term of adjournment of the Deputy President. Whether or not an adjournment is granted and the terms of that adjournment are matters entirely within the discretion of the Tribunal. As was said in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." 30 The considerations which led or compelled the Deputy President to so limit the term of adjournment have already been canvassed at some length, and it was not submitted on behalf of the applicant that the exercise of the discretion miscarried because such considerations, or any one or more of them, were not relevant. But the applicant submitted that the Deputy President failed to take into account two relevant considerations, namely: (1) The possibility of having the matter heard by another member of the Tribunal; and (2) the possibility of the matter being heard in the period 1 7 December 2006. I have already indicated at [26] above why I do not think these were real possibilities and that may well explain why the Deputy President made no specific reference to them. In the scheme of things, I do not think the lack of any specific reference to them indicates that they were not taken into account; rather they were overtaken by the fact that the Deputy President only had one possible free day between 27 November 2006 and 20 December 2006 (apart from 28 November 2006) and that was 8 December 2006 and the fact that there were no hearing rooms available up until 20 December 2006 even if another member of the Tribunal was available to hear the matter at a date later than 28 November 2006. 31 While there was no express challenge to the Tribunal's exercise of its discretion in limiting the terms of the adjournment to one day in the form of a ground of review, a considerable amount of time was spent in argument on the Tribunal's alleged failure to take these two matters into account. If there was such a ground of review, I would not be prepared to conclude that the Tribunal's exercise of discretion miscarried by reason of such matters.


case_text: The fact that this alleged failure had not been raised in the Tribunal was no bar to its qualification as an error of law on the part of the Tribunal according to counsel for the applicant. In this regard I was referred to what was said by Bowen CJ in Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 at 194; see too Fox J at 199; although Deane J at 205 was troubled as to whether the appellant's failure in that case to raise the issue in the Tribunal precludes the intervention of the court on appeal.


case_text: Counsel for the Minister accepted that failure to consider a relevant consideration is, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, "one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action"; but noted that failure by a decision-maker to take into account relevant considerations is only an error where the statute makes the considerations ones which the decision-maker is " bound to take into account in making that decision".


case_text: The applicant's case on this ground relied almost if not entirely on the decision of Allsop J in Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807 where his Honour held that in the facts and circumstances of that case, the 14 day response period specified in a letter to Mr Sales, informing him that he was liable to the possibility of visa cancellation and deportation, was "plainly inadequate for him to address the task before him" (at [32]) and "was not procedural fairness" (at 36]). 43 Counsel for the applicant submitted that although Sales involved a decision made by the Minister personally, the circumstances of this case include all of the above criteria. Furthermore, like the applicant in Sales , neither the applicant nor her mother could be described as "people of wide or deep resources, or otherwise of significant education" (at [23]). In Sales , Allsop J described Direction 21 as "a comprehensive and careful document" and that the "task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant" (at [14]). I was referred to the remarks of Allsop J at [31] to [34] with the submission that they are all applicable to the applicant with the exception that she has not spent "most" of her adult life in prison, however, she has certainly spent a significant part of her adult life in prison. 46 Counsel for the applicant further submitted that the ground of review should be rejected for the following reasons: (1) As neither the Act , nor Direction No. 21, either expressly, or by implication, mandate the consideration of this factor, the failure to take it into account cannot be an error. (2) Any procedural failings by the delegate of the Minister in reaching the original decision could not be relevant in any sense as the Tribunal was making the decision afresh and so any such unfairness was able to be remedied. (3) It is not apparent that there was any relevant unfairness by the delegate. Unlike the case in Sales , this was the second time the applicant had to explain why her visa should not be cancelled, the applicant did not complain that she was unable to respond effectively and she took the opportunity to make submissions, similar in substance, to those later made by her solicitor. 47 In the facts and circumstances of this case, I do not think the 14 day response period in the NOICC denied the applicant procedural fairness. While there are some factual similarities between this case and Sales , they are more apparent than real. Importantly, this was the second time within approximately 18 months that the applicant was called upon to respond to such a notice and her responses in that case resulted in a warning. It was made clear in the NOICC that in making a decision whether to cancel the applicant's visa under s 501(2) of the Act , the Minister or delegate would take into account, amongst other things, the information the applicant supplied on the earlier occasion. 48 This ground of review cannot be sustained. 49 This is undoubtedly a factor to which the Tribunal should have had regard in terms of Direction No. 21 see [2.17(a)] thereof. The applicant submitted that the Tribunal failed to give proper consideration to the length of time the applicant, a New Zealand citizen, had lived in Australia continuously; there is little discussion in the Tribunal's decision concerning the length of time the applicant has resided in Australia and the extent of her ties to her family and the disruptive effects of her visa cancellation. 51 It was further submitted that the Tribunal failed to consider the effects of the visa cancellation on the applicant's ties to her siblings her half brother and her half sisters. I was referred to Sales in which Allsop J suggested that the "bests interests of children", dealt with at [2.13] of the Direction, could also include children who are not direct issue of the person concerned such as the "extended family of the applicant, including nephews and nieces" (at [20]). Finally, the applicant submitted that although the Tribunal asserted that there was no evidence "about the Applicant's relationship with other members of her family or members of the community" (at [38]), there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence notwithstanding that the applicant was unrepresented. 52 However, it is apparent that the Tribunal did give this factor consideration. At [38] it said: "Disruption would result to the Applicant's family. Her parents reside in Sydney. She maintains that she has a good bonding now with each of them although it is noted neither attended the Hearing. The mother affirmed her 2005 statement. The father did not provide any information to the Tribunal. There was not any evidence about the Applicant's relationship with other members of her family or members of the community." 53 I also reject the inference, implicit in the submissions that there was little inquiry made by the Tribunal into the nature of those relationships when the applicant gave evidence, that the Tribunal was in some way under a duty to make inquiry because the applicant was unrepresented.


case_text: I was referred to what was said by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342, namely: " Section 39 of the Administrative Appeals Tribunal Act provides, for present purposes, that 'the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case'. In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. In these circumstances, the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moodie (1977) 17 ALR 219 at 225)." 25 A little later (at 343) his Honour said: "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. ... The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment." 26 When pressed as to what the Deputy President should have done in the circumstances but did not do, counsel for the applicant submitted: (1) "First and foremost he should have canvassed the possibility of having the matter heard by another member of the Tribunal." As I have indicated at [20(6)] above, presumably the Deputy President did not undertake any such canvassing because he was aware that no hearing rooms were available on any day up until 20 December 2006. (2) "[H]e should have canvassed the dates, between 1 December of that year ..." and 7 December as to whether the matter could be heard by himself or another member of the Tribunal. As I have indicated in [20(4)] above, my reading of the relevant excerpt from the transcript indicates that the Deputy President did not have any days available from that moment until 20 December 2006, other than the next day (28 November 2006) and possibly 8 December 2006. That last-mentioned date was not a choice because of lack of availability of a hearing room, and the possibility of the matter being heard by another member of the Tribunal in the 1 to 7 December 2006 period was out for the same reasons. 27 Finally, the applicant submitted that the subsequent conduct of the hearing, together with the Deputy President's initial instinct to accede to the request to adjourn the matter, only serves to emphasize the merits of the adjournment application the reason the Deputy President chose not to do so being apparently based entirely on pragmatic considerations regarding room availability. 28 While it is clear that a refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case see Deane J in Sullivan at 343 whether it does or not depends on what underlies the request for an adjournment. For example, and this is close to the example cited by Deane J in Sullivan , if a party makes application for an adjournment to enable him to procure a particular person as a witness, refusal of that application may well constitute such a failure. The refusal of an application for an adjournment predicated on a lack of legal representation and a need for time to secure such representation, as in the present case, may also constitute such a failure, but then again it may not. It will depend on the facts and circumstances of the case, in particular how the lack of legal representation impacted (adversely) on the ability of the applicant to present his/her case.


case_text: a demise charter had been terminated before the plaintiff applied to amend to an existing writ, Foster J said in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 389 that, as a matter of discretion, he would not allow an amendment where some items covered by the requested amendment might arguably be maritime claims but others not. He adverted to difficulties that obviously might arise if the writ were to be amended at that time after the charterer had ceased to be a relevant person. Like his Honour, I have difficulty in seeing that the grant of the requested amendment would be just or appropriate in all the circumstances: see too r 17(1) of the Admiralty Rules . I am of opinion that, as a matter of my discretion, I should not allow this amendment, so as to permit this claim to be made in this way at this time. The claim is, in effect, against the property of the owner of the vessel, APC Marine, when the owner will not be able to have recourse, in the circumstances, to its current demise charterer because T-D has ceased to have any connection with the vessel. In addition, although I do not express these views for the purposes of my decision, it is desirable to say that in my view s 18 of the Act does not appear to me, at the moment, to support the present claim. That section contemplates that when an action in rem is commenced the, or a, maritime claim will be connected temporally by the coincidence of possession of a demise charterer who is liable and the cause of action asserted as a, or part of a, maritime claim. I will assume for the moment that EMAS' claim for indemnity, is a maritime claim under s 4(3)(j) or (m) in respect of towage of the barge or a claim in respect of goods, materials or services supplied to it for its operation or maintenance (i.e. necessaries). However, each of those categories is a matter about which there is a considerable amount of learning and which may or may not be correct in respect of the present proceedings.


case_text: Tisand Pty Limited v The Owners of the Ship MV "Cape Moreton" (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43 Ryan and Allsop JJ, particularly at 68-74 [100]-[122] engaged in a substantial and learned discussion of the importance of identifying persons with a proprietary interest as owner or demise charterer in arrest proceedings, albeit that they concentrated on the question of ownership. They said that in ss 17 , 18 and 19 of the Act, the phrase "the owner" was used in a proprietary sense, reflecting the clear purpose of the Act to require that the property proposed to be arrested belong to the relevant person: The "Cape Moreton" 143 FCR at 73 [118]. Here, that approach must be adapted to the special provisions of s 18 in relation to a demise charterer being the relevant person. At the time of the arrest of the "APC Aussie 1" , T-D was the relevant person, as the existing demise charterer. T-D was the contracting party with EMAS under the charter for her towage. But, at the present time T-D is not capable of being a relevant person in respect of the barge because the demise charter has been terminated and APC Marine, as owner, has retaken possession. T-D now has no proprietary interest in the barge, yet EMAS is seeking to extend the ambit of the security for which the arrest was obtained to a cause of action not previously contemplated in either the writ or the amended writ. If granted, the amendment would have the effect of greatly expanding the amount of security that EMAS could require for release of the " APC Aussie 1 " before its owner would be able to exercise its proprietary rights, even though the new claim involves no direct relationship between EMAS and APC Marine. There may be occasions (that were not suggested during the hearing) in which it is possible to argue that such an amendment could be appropriate. It is for that reason that I do not wish to express a final view on this question and instead have exercised my discretion to refuse the application to amend. The reality is that EMAS seeks to utilise the earlier arrest of the barge, to bring pressure on APC Marine well after EMAS became aware of the existence of APC Marine's Singaporean writ and in circumstances in which EMAS has delayed making the application to amend until after the intervening event of APC Marine's termination of its charterparty with T-D.


case_text: in Admiralty are intended to facilitate the enforcement of liabilities and not to allow pressure to be put on a person who is himself under no liability in respect of the liabilities of others: Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27 ; (1974) 131 CLR 1 at 6 per Menzies J; cp Owners of MV "Iron Amanat" v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 139 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. In my opinion, it would not be right, or just, in the present circumstances to allow the amendment to be made so as to permit APC Marine's property to stand as security for EMAS' claim to be entitled to indemnity from T-D under cl 14 of their charterparty for any claim T-D makes against EMAS based on a liability T-D may have to APC Marine.


case_title: Owners of MV "Iron Amanat" v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130