case_title: Samootin v Shea (No 2) [2003] NSWSC 695

case_text: The Applicant and her ex-husband owned a matrimonial property at Waterview St, Mona Vale. That property was apparently sold and the proceeds of sale used in the purchase of two properties: 24 and 26 Oxford Falls Rd, Beacon Hill. The proceedings in the Supreme Court apparently sought orders that the purchase of those properties be set aside. Those proceedings were initially resolved by Palmer J: Samootin v Shea (No 2) [2003] NSWSC 695. The hearing occupied seven days. In refusing relief, his Honour observed at the outset of his judgment: [1] This is a tragic case for all who have been involved in it. The Plaintiff, Ms Samootin, has developed a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband, the First Defendant ("Mr Shea"), and the Second Defendant ("Mr Deans") whereby she has been cheated out of her home. She has commenced proceedings in the Family Court, in this Court and in the Federal Court, all of which she has conducted herself without legal assistance. [2] The reality is that, while Ms Samootin's share of the net proceeds of sale of her jointly owned former matrimonial property was invested in the properties the subject of these proceedings and her name did not appear on the title to those properties, Mr Shea and Mr Deans have never denied that Ms Samootin had a beneficial interest in the properties commensurate with the proportion of her contribution to the parties' equity in the properties. Indeed, at Ms Samootin's request Mr Shea and Mr Deans signed an acknowledgement to that effect in July 1998, well before Ms Samootin commenced these proceedings. [3] As far as I am able to determine, these proceedings and the proceedings in the Family Court were never necessary in order to establish Ms Samootin's interest in the properties because that interest was not in contest. [4] Nevertheless, the Defendants have not been able to disentangle themselves from a nightmarish web of litigation in which Ms Samootin has enveloped them since 1998, not only in the Family Court and in this Court, but in the Local Court, the District Court and the Federal Court. There has been at least one application by Ms Samootin to the High Court and numerous applications by her to the Full Court of the Family Court and to the Court of Appeal. [5] The costs of this litigation to the present Defendants and others whom Ms Samootin has sought to join must be very substantial. A large number of costs orders have been made against Ms Samootin in the interlocutory proceedings in the various Courts. They are said to amount to about $150,000 and a final costs order will be made against her in these proceedings. Whether those costs can actually be recovered from Ms Samootin must be extremely doubtful. His Honour noted that the " reality " was that the Applicant was entitled to a share of the net proceeds of sale of her former matrimonial property, but that such a share had not been denied. On 27 August 2003 costs of Ms Wagner and Mr Holmes were awarded against Ms Samootin by Palmer J. Those costs were assessed and judgment entered in the sum of $155,522.69. 14 On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004). In doing so, Handley JA, with whom Sheller and Ipp JJA agreed, said: [14] The Court has heard Ms Samootin on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of 1 August 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour's rulings on evidence and procedure during the trial. [15] I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on 29 September 2003. 44 The contention that Ms Wagner has been guilty of professional negligence, is also an issue which previously has been pursued by Ms Samootin: Samootin v Shea (No 2) [2003] NSWSC 695. In outlining the " essence " of her claims as advanced in the Supreme Court, Palmer J thus observed in relevant part as follows: [9] The essence of Ms Samootin's allegations is as follows: ... • the Fifth Defendant ("Ms Wagner") who acted as the solicitor for Mr Shea and Ms Samootin on the sale of the Mona Vale Property and for Mr Shea and Loan Design on the purchase of No 24 and No 26 was negligent and in breach of her fiduciary duties in failing to account to Ms Samootin for her share of the proceeds of sale and in permitting those proceeds of sale to be used in the purchase of No 24 and No 26 in the name of Loan Design alone... His Honour went on to observe, both in respect to the role played by Ms Wagner and Mr Holmes: [17] Nevertheless, I concluded that I was obliged to hear the whole of these proceedings for two reasons. First, if Ms Samootin's account of the facts was correct, a finding was possible that Ms Wagner had acted negligently or in breach of fiduciary duty. Even though such negligence or breach of duty did not result in Ms Samootin being deprived of an interest in the properties, it might be possible for Ms Samootin to prove some other compensable damage, as she had claimed in para6 and para7 of the Relief: see para11. Second, there should be findings of the Court on the factual issues which would bind the parties by issue estoppels or estoppels by judgment so as to put an end, so far as it is possible, to all further controversy between the parties. [18] Finally, I should add that the Sixth Defendant, Mr Holmes, purchased the goodwill of Ms Wagner's practice well after the events in question. Ms Samootin has made no assertions against Mr Holmes and it is clear that he should never have been joined as a Defendant. 45 Rather than making a finding of negligence against Ms Wagner, his Honour concluded: Findings [65] In my opinion there can be no doubt that Ms Samootin's account of events cannot be accepted in any material particular in which it differs from the accounts given by the other witnesses. My reasons are as follows. ... [78] Likewise, I accept the evidence of Ms Wagner. I formed the impression that she was a careful solicitor who was in the habit of taking file notes of matters of significance. In the present case, Ms Wagner had made contemporaneous file notes which supported her evidence where it differed from Ms Samootin's evidence. Ms Wagner was a solicitor who had had experience in family law: it is inherently probable that when dealing with the proceeds of sale of the Mona Vale Property she would have been aware of the need to obtain clear instructions to use the proceeds of sale in the purchase of another property in the name of one of the parties only. I have no hesitation in accepting Ms Wagner as a witness whose evidence was truthful and accurate. Those findings were made in a context where Ms Wagner had been cross-examined by Ms Samootin. 46 The variation to the claims of negligence and breach of fiduciary duty as made before Palmer J, and as made at the hearing before this Court on 4 July 2008 to include an allegation of " financial abuse ", does not now entitle Ms Samootin to again agitate claims previously made. 47 The applications to comment upon or make observations as to orders as to costs made previously against Ms Samootin both by Justices of this Court and of the Supreme Court is also without merit. 48 It is understood that Ms Samootin accepts that this Court has no power or jurisdiction to vary or modify costs orders previously made. Her contention is that, in the event that the bankruptcy is annulled, it would not be inappropriate to make " observations " to the effect that those parties who have previously had costs orders made in their favour should nevertheless be " responsible " for their own costs in those proceedings. Rather than being " appropriate " to make such observations, even had the bankruptcy been annulled, it is considered that it would be highly inappropriate to make any observations as to the manner in which a trial judge, who had knowledge of the facts and circumstances of an individual proceeding, exercised his discretion when making an order as to costs. There is no power or jurisdiction to do so; and, even if there had been any such power or jurisdiction, no " observations " would in any event have been made.


case_outcome: cited

case_text: On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004). In doing so, Handley JA, with whom Sheller and Ipp JJA agreed, said: [14] The Court has heard Ms Samootin on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of 1 August 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour's rulings on evidence and procedure during the trial. [15] I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on 29 September 2003.


case_title: Samootin v Shea [2005] HCA Trans 181

case_text: Ms Samootin has pursued her claims beyond the Court of Appeal and has proceeded to the High Court on a number of occasions. One of those occasions was when she sought a stay of orders made by Giles J in respect to costs: Samootin v Shea [2005] HCA Trans 181. That application came before McHugh J. During an exchange between Ms Samootin and the Court, McHugh J made the following observations: Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you. The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur. The High Court has also refused an application for special leave in respect to the decision of the Court of Appeal dismissing an application for leave to appeal to that Court against the orders made by Palmer J: Samootin v Shea [2005] HCA Trans 732. In doing so, Hayne J observed that there was no " reason to doubt the correctness of the decisions in the courts below ".


case_title: Samootin v Shea [2005] HCA Trans 732


case_title: Samootin v Shea [2005] NSWCA 398

case_text: The Court of Appeal subsequently refused an application to reopen the question of leave to appeal: Samootin v Shea [2005] NSWCA 398. 17 A further series of events, not surprisingly, arose out of the costs orders originally made by Palmer J and subsequently by the Court of Appeal. 36 And in the statutory context of considering an application to annul her bankruptcy, a Federal Magistrate in his reasons ( Samootin v Wagner [2007] FMCA 1100) has referred to the decision of Palmer J and thereafter summarised the contentions then being advanced, one of which was the following: [13] Ms Samootin's second area of contentions raises whether the sequestration order ought not have been made by reason of the fact that "she is able to pay ... her debts" within s 52(2)(a) of the Bankruptcy Act . She argues that, once the inquiry into her equitable interest in the two properties is conducted and accounts are taken in relation to amounts owing between the parties, she will be found to possess assets which exceed her debts. Smith FM continued to recount an application made by Ms Samootin to issue subpoenas. In rejecting that application he observed: [19] The proposed witnesses included three of the natural defendants to the Supreme Court proceeding, Mr Shea, Mr Deans and Ms Wagner, and an employee of Ms Wagner at the relevant time, Ms Knowles, all of whom gave evidence before Palmer J and were cross-examined by the applicant. The applicant claims that she now has further information, has studied their evidence more closely, and has noted discrepancies in their evidence which she says would support her contention of fraud on their part. [20] In relation to the other five persons whose attendance Ms Samootin sought to compel, she presented to this Court affidavits from these persons prepared in 2005, which she had attempted to present to the High Court. She told me that the contents of these affidavits is the evidence which she would wish to present to this Court. Their evidence deposes to some events in 1997 which Ms Samootin believes to be relevant to the consideration of the purchase of the two properties at Oxford Falls Road, Beacon Hill. [21] All of this "fresh evidence" appears to have been previously presented by Ms Samootin in one form or another, both to the Supreme Court and to this Court in the previous bankruptcy proceedings. As I have indicated, she also sought to present it to the High Court in support of special leave applications. Although this is not clear on the material before me, in the Supreme Court it appears that it was addressed in two judgments of the Court of Appeal, which took the view that it would not significantly advance the applicant's case on appeal nor in any proceedings to set aside Palmer J's orders for fraud (see the judgment of Bryson JA given on 16 May 2005 in matter 40603/04, particularly at [15] and following, and also Giles JA at [28] referring to additional material sought to be presented. See also the judgment of the same two judges on 17 November 2005 in Samootin v Shea & Ors [2005] NSWCA 398). It appears to me also that this material was presented to McInnis FM and to Lloyd-Jones FM in Ms Samootin's previous bankruptcy proceedings. They both took the view that it did not justify the Court setting aside the bankruptcy notice in the first case, and declining to make a sequestration order in the second. [22] I have endeavoured to understand the applicant's fresh evidence and her explanations as to its relevance and cogency, and I find myself in agreement with previous judges who have considered this material. In the context of s 52 of the Bankruptcy Act , and an application for annulment under s 153B , I am not satisfied that the material presented and sought to be presented would justify the bankruptcy court embarking on the extensive factual rehearing of the matter before Palmer J which the applicant seeks to obtain. I am not satisfied by the material going to this issue that the applicant has established that the sequestration order "ought not to have been made" by reason of any of the contentions now made by the applicant in relation to her fresh evidence.


case_title: Samootin v Wagner [2005] FMCA 1512

case_text: On 17 June 2005 Ms Wagner and Mr Holmes caused a bankruptcy notice to be issued to Ms Samootin based upon the orders as to costs made in their favour. Without detailing each of the proceedings in the Federal Magistrates Court, it may be noted that an application to set aside the bankruptcy notice was dismissed with indemnity costs on 30 September 2005: Samootin v Wagner [2005] FMCA 1512.


case_title: Samootin v Wagner [2006] FCA 689

case_text: An application to stay the sequestration order has been dismissed by a judge of this Court: Samootin v Wagner [2006] FCA 689. An appeal against the making of the sequestration order has also been dismissed: Samootin v Wagner [2006] FCA 945.


case_title: Samootin v Wagner [2006] FCA 945


case_title: Samootin v Wagner [2007] FCA 1366

case_text: Thereafter an application was filed by Ms Samootin with the Federal Magistrates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366.


case_title: Samootin v Wagner [2007] FMCA 1100

case_text: Thereafter an application was filed by Ms Samootin with the Federal Magistrates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366. 35 At the forefront of the submissions repeatedly (albeit perhaps understandably) advanced by Ms Samootin is the belief that she has been improperly deprived of monies owing to her and the belief that, if she obtained those monies, she would be able to pay her debts. A belief repeated a number of times during the hearing was that monies to which she was entitled were still being retained by Mr Deans and that the Official Trustee was failing in its duty to recover those monies. But this very belief was previously advanced by Ms Samootin before Palmer J and again before a Federal Magistrate -- on at least one occasion: Samootin v Wagner [2007] FMCA 1100. It is that belief which Palmer J characterised as " a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband ... and the Second Defendant ('Mr Deans') ". 36 And in the statutory context of considering an application to annul her bankruptcy, a Federal Magistrate in his reasons ( Samootin v Wagner [2007] FMCA 1100) has referred to the decision of Palmer J and thereafter summarised the contentions then being advanced, one of which was the following: [13] Ms Samootin's second area of contentions raises whether the sequestration order ought not have been made by reason of the fact that "she is able to pay ... her debts" within s 52(2)(a) of the Bankruptcy Act . She argues that, once the inquiry into her equitable interest in the two properties is conducted and accounts are taken in relation to amounts owing between the parties, she will be found to possess assets which exceed her debts. Smith FM continued to recount an application made by Ms Samootin to issue subpoenas. In rejecting that application he observed: [19] The proposed witnesses included three of the natural defendants to the Supreme Court proceeding, Mr Shea, Mr Deans and Ms Wagner, and an employee of Ms Wagner at the relevant time, Ms Knowles, all of whom gave evidence before Palmer J and were cross-examined by the applicant. The applicant claims that she now has further information, has studied their evidence more closely, and has noted discrepancies in their evidence which she says would support her contention of fraud on their part. [20] In relation to the other five persons whose attendance Ms Samootin sought to compel, she presented to this Court affidavits from these persons prepared in 2005, which she had attempted to present to the High Court. She told me that the contents of these affidavits is the evidence which she would wish to present to this Court. Their evidence deposes to some events in 1997 which Ms Samootin believes to be relevant to the consideration of the purchase of the two properties at Oxford Falls Road, Beacon Hill. [21] All of this "fresh evidence" appears to have been previously presented by Ms Samootin in one form or another, both to the Supreme Court and to this Court in the previous bankruptcy proceedings. As I have indicated, she also sought to present it to the High Court in support of special leave applications. Although this is not clear on the material before me, in the Supreme Court it appears that it was addressed in two judgments of the Court of Appeal, which took the view that it would not significantly advance the applicant's case on appeal nor in any proceedings to set aside Palmer J's orders for fraud (see the judgment of Bryson JA given on 16 May 2005 in matter 40603/04, particularly at [15] and following, and also Giles JA at [28] referring to additional material sought to be presented. See also the judgment of the same two judges on 17 November 2005 in Samootin v Shea & Ors [2005] NSWCA 398). It appears to me also that this material was presented to McInnis FM and to Lloyd-Jones FM in Ms Samootin's previous bankruptcy proceedings. They both took the view that it did not justify the Court setting aside the bankruptcy notice in the first case, and declining to make a sequestration order in the second. [22] I have endeavoured to understand the applicant's fresh evidence and her explanations as to its relevance and cogency, and I find myself in agreement with previous judges who have considered this material. In the context of s 52 of the Bankruptcy Act , and an application for annulment under s 153B , I am not satisfied that the material presented and sought to be presented would justify the bankruptcy court embarking on the extensive factual rehearing of the matter before Palmer J which the applicant seeks to obtain. I am not satisfied by the material going to this issue that the applicant has established that the sequestration order "ought not to have been made" by reason of any of the contentions now made by the applicant in relation to her fresh evidence.


case_title: Wagner v Samootin [2006] FMCA 688

case_text: On 2 November 2005 Ms Wagner and Mr Holmes filed a creditor's petition in the Federal Magistrates Court on the basis of the failure to comply with the bankruptcy notice. A sequestration order was made against the estate of Ms Samootin on 24 May 2006: Wagner v Samootin [2006] FMCA 688.


case_text: The distinction between the status of court appointed liquidators and liquidators appointed under voluntary administrators, as a basis for the distinction between the language of s 479(3) and s 511 has long been recognised: see eg, Australian Securities Commission v Melbourne Asset Management Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334 at 348-349 (Northrop J); Deane-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209. In the latter case Young J said that: ... the authorities tend to suggest that the court has the same jurisdiction under both sections... The reasons advanced in those and other cases for the conferral of express powers in s 511 are supported by the comment on one of its many predecessors, s 274 of the Uniform Companies Act 1961, in Wallace and Young, Australian Company Law and Practice (Law Book Co, 1965) at 759: the effect of this section (which the court has interpreted so as to give it wide powers) ... is to lessen the distinction between a voluntary and compulsory winding up.


case_text: The distinction between the status of court appointed liquidators and liquidators appointed under voluntary administrators, as a basis for the distinction between the language of s 479(3) and s 511 has long been recognised: see eg, Australian Securities Commission v Melbourne Asset Management Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334 at 348-349 (Northrop J); Deane-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209. In the latter case Young J said that: ... the authorities tend to suggest that the court has the same jurisdiction under both sections... The reasons advanced in those and other cases for the conferral of express powers in s 511 are supported by the comment on one of its many predecessors, s 274 of the Uniform Companies Act 1961, in Wallace and Young, Australian Company Law and Practice (Law Book Co, 1965) at 759: the effect of this section (which the court has interpreted so as to give it wide powers) ... is to lessen the distinction between a voluntary and compulsory winding up. 50 Given the more substantive character of the applications contemplated by s 511(1)(a) the preceding observations are even more apposite in applications made under that provision. Whether the Court should proceed to entertain applications for the determination of substantive rights and award final relief as between competing creditors and others in an application under s 511, is a matter of discretion. As Young J said about s 511 in Deane-Willcocks 42 NSWLR 209 (at 212): There are many questions where the only order that the court should make is that the liquidator or the claimant proceed in the ordinary courts in the ordinary way for the determination of a dispute. However, there are many other situations where the court can summarily solve the difficulty that has arisen in the liquidation by an order under the section in a cheap and efficient manner. Where this can be done it is "just and beneficial" to exercise the power. 51 In my opinion it is open to the Court, in a suitable case, to entertain an application for the determination of questions under s 511 by joining affected parties with competing interests as defendants and permitting them to file cross-claims for declaratory relief as between themselves and any other interested parties and the liquidator so that there can be a res judicata between all of them. Such a course may be appropriate where the evidence necessary to determine the questions and the competing claims is largely documentary and amenable to expeditious hearing and determination. Otherwise the parties can simply commence their own substantive proceedings. 52 On the basis of the information provided at the directions hearing and the nature of the factual matters underpinning the questions raised by the liquidator, it appears likely that the resolution of the competing claims reflected in the liquidator's questions could proceed expeditiously on a largely documentary basis. I accept that there may be some oral evidence going to questions of estoppel in relation to IMF. Although the proposed statement of claim outlines a somewhat complex and convoluted sequence of transactions, the heavy documentary emphasis suggests that a largely documentary case can be run.


case_text: A direction given or a question determined under s 479(3) or s 511, as the case may be, will protect the liquidator who acts in accordance with the direction or determination. In relation to a determination under s 511 it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it: Equity Funds of Australia (In Liq) (1977-78) CLC 40-303 at 29,253-29,254 (Bowen CJ (in Eq)). McLelland J said in GB Nathan & Co 24 NSWLR 674 (at 677): The protection of the official administrator, acting under a direction of the court, from personal liability would not however affect the rights of creditors and beneficiaries as between themselves. So far as s 479(3) is concerned, McLelland J was of the view that it does not enable the court to make binding orders in the nature of judgments and that the function of an application for directions under that section is to give the liquidator advice about the proper course of action in the liquidation and not to determine rights and liabilities arising from pre-liquidation transactions (at 679). See also Re JW Murphy and PC Allen (1996) 19 ACSR 569 at 570 (McLelland CJ).


case_text: The facilities provided by ss 479(3) and 511 have a long ancestry. Section 479(3) of the former Corporations Law was considered by McLelland J in Re GB Nathan & Co Pty Ltd (In liq) (1991) 24 NSWLR 674. He traced its origins back to the Joint Stock Companies Winding Up Act 1848 (UK) which allowed an official manager to apply for directions from the Master from time to time. A similar facility has long existed for trustees, administrators and executors. As McLelland J said (at 677): These various statutory provisions for directions were a development from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the court. Two main classes of such persons were (1) trustees of trust property, or executors or administrators of a deceased estate, under administration by the court pursuant to a decree for general administration, and (2) receivers (and managers) appointed by the court in respect of property the subject of litigation. 48 A direction given or a question determined under s 479(3) or s 511, as the case may be, will protect the liquidator who acts in accordance with the direction or determination. In relation to a determination under s 511 it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it: Equity Funds of Australia (In Liq) (1977-78) CLC 40-303 at 29,253-29,254 (Bowen CJ (in Eq)). McLelland J said in GB Nathan & Co 24 NSWLR 674 (at 677): The protection of the official administrator, acting under a direction of the court, from personal liability would not however affect the rights of creditors and beneficiaries as between themselves. So far as s 479(3) is concerned, McLelland J was of the view that it does not enable the court to make binding orders in the nature of judgments and that the function of an application for directions under that section is to give the liquidator advice about the proper course of action in the liquidation and not to determine rights and liabilities arising from pre-liquidation transactions (at 679). See also Re JW Murphy and PC Allen (1996) 19 ACSR 569 at 570 (McLelland CJ). 49 On the other hand there is sufficient flexibility in the procedures of the Court to enable proceedings begun as an application for directions to be converted into proceedings for the determination of substantive rights: Re GB Nathan & Co 24 NSWLR 674 at 680. In Melbourne Asset Management Nominees 49 FCR 334, Northrop J said (at 352): It has been accepted that Courts have power to make final orders in preference claims on an application by a liquidator under sections similar to s 479(3) of the Corporations Law . There is no logical reason why final orders binding on other persons cannot be made on applications under s 479(3) with respect to other subject matters. And further (at 352): I can see no reason why binding orders cannot be made where the parties affected have been given the opportunity to be heard.


case_title: Re JW Murphy and PC Allen (1996) 19 ACSR 569


case_outcome: applied

case_text: The principles which apply to an application for an extension of time to convene and hold a second meeting of creditors have been considered in a series of cases commencing with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle applied by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10] by Barrett J. His Honour said that: The function of the Court on an application such as this is...to strike an appropriate balance between...the expectation that the administration would be a relatively speedy and summary matter and...the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders. 21 Barrett J observed at [11] of Diamond Press that experience suggests that transactions of the kind contemplated in that case do take time, particularly where an informal tender or competitive selling process is undertaken and structured due diligence procedures are adopted. His Honour said that all of those matters are conducive to the aims of s 435A(b) of the Act and that they would allow the administrators to present a clearer picture to the second meeting. It seems to me that his Honour's observations are particularly apt in the circumstances of this case.


case_outcome: followed

case_text: In Fincorp Group Holdings Pty Limited (2007) 62 ACSR 192, Barrett J granted an extension of time, the effect of which was that the convening period set by s 439A would be some three months longer than if the extension had not been granted. His Honour in that case at [10] and [11] pointed to the complexity of the sale process as a matter which justified the extension.


case_outcome: referred to

case_text: In Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935 , Gyles J took a slightly different approach from that which was adopted in the cases referred to above. His Honour made orders extending the convening period for up to 60 days but he reserved consideration of any application to further extend the period if a case were made out for such a further extension. His Honour said he would then exercise the power provided for by s 447A. (See also Hall, in the matter of Australian Capital Reserve Ltd (Administrators Appointed) [2007] FCA 1328 at [1] ). The effect of the approach taken by Gyles J, if adopted in the present case, would be for an extension of time to be dealt with in stages and that is a matter I have considered carefully in considering the application that was made to me this morning. 25 It seems to me that there are three reasons why I ought to grant the extension of up to 90 days as sought by the administrators rather than to adopt the staged process suggested by Gyles J. 26 The first reason is that the cases indicate that an extension of two and a half to three months is not unusual where there is a relatively complex sale process. Bearing in mind the intervention of the holiday period, it seems to me that the effect of the orders which are presently sought is to grant an extension of up to two and a half months, because the Christmas and New Year holiday period intervenes and it is not unusual for a period of up to two working weeks to be lost as a result of that holiday period. 27 Second, I have taken into account that Mr McMaster considers that if the sale process is completed in a shorter period of time than is currently anticipated, the administrators will immediately look to convene a meeting of creditors because there is no value in prolong the process for any longer than is necessary. That is the importance of the extension for 'up to' 90 days rather than for a fixed period of 90 days. It allows a degree of flexibility, which would not otherwise be available in accordance with the process contemplated by s 439A(2) , (5) and (6). I accept Mr McMaster's opinion and I note that the statements made by the two creditors who oppose an extension for up to 90 days seem to proceed upon the basis that there will actually be an extension to 30 March 2009, whereas in truth, what is proposed is that the extension be for up to 90 days. Accordingly, as Mr McMaster has said, if he is able to do so, he will convene the meeting of creditors earlier than 30 March 2009. 29 It seems to me that there is a benefit to the administration in extending the convening period only once rather than adopting the staged process suggested by Gyles J. That is not to say that in an appropriate case the process contemplated by Gyles J would not be suitable. But in this case where the administrators are of the view that the company will be able to meet post-appointment cash flow, in effect, obtaining the benefit of the moratorium period provided for in Pt 5.3A , the staged process would not be of any utility. Indeed, it would be costly in the administration and would divert resources from the completion and attention to the details of the sale process which is now being undertaken. 30 I have already referred to the fact that extension is not for a fixed period, but is for a period of up to 90 days, and that Mr McMaster says if he is able to do so, he will convene the meeting of creditors at the earliest possible time. He does not wish to prolong the process unnecessarily. Mr McMaster is an experienced administrator and I consider that I ought to act upon the statement set out in [43] of his affidavit. 31 For these reasons, I propose to make the orders set forth in [1] to [7] of the short minutes of order which I have signed and dated and placed with the Court papers. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 20 January 2009 Counsel for the Plaintiffs: I M Jackman SC Solicitor for the Plaintiffs: Baker & McKenzie Date of Hearing: 16 December 2008 Date of Judgment: 16 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1933.html


case_text: More recently in Lehman Brothers Australia Ltd [2008] NSWSC 1132 at [4] , Barrett J reiterated the principles referred to above. His Honour said at [13] of Lehman Brothers that a matter to be considered closely in such an application is the impact that prolongation of the administration will have on persons whose claims are affected by the statutory moratoriums arising from Pt 5.3A of the Act.


case_text: The principles which apply to an application for an extension of time to convene and hold a second meeting of creditors have been considered in a series of cases commencing with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle applied by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10] by Barrett J. His Honour said that: The function of the Court on an application such as this is...to strike an appropriate balance between...the expectation that the administration would be a relatively speedy and summary matter and...the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders.


case_outcome: considered

case_text: The need for further inquiry, as opposed to proceeding to resolve the application on the materials before it, was not " obvious ": cf Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at [76] per Lee J. Indeed, it is considered that further inquiry may well have been inappropriate. 24 Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.


case_title: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632

case_text: Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.


case_title: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166


case_title: F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295


case_title: Gomez v Minister for Immigration & Multicultural Affairs [2002] FCA 480 , 190 ALR 543

case_text: The source of any duty or obligation to seek " more specific information " -- in the circumstances of the present case -- was not identified. Section 427(1)(d), it may be noted, empowers the Tribunal to require the Secretary " to arrange for the making of any investigation ". But that section does not impose any general duty to inquire: Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] [14], [2000] HCA 50 ; 74 ALJR 1404. See also Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] , [2001] FCA 274 ; 106 FCR 426 at 445; Gomez v Minister for Immigration & Multicultural Affairs [2002] FCA 480 at [26] , [2002] FCAFC 105 ; 190 ALR 543.


case_text: The fact that the Tribunal proceeded to reach a decision without seeking " more specific information " cannot be characterised as either unreasonable (cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155) or capricious (cf Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129). Any such characterisation would be denied by: (i) the general nature of the request being made by the Appellant; (ii) the fact that he had on three occasions been invited to attend a hearing before the Tribunal, being an occasion upon which he would then have had an opportunity to further develop his concerns and to provide such further " information " (if any) as he saw fit; and (iii) the fact that the detailed letter had been forwarded to him on 2 January 2007 inviting him to comment on the matters there set forth. At the conclusion of the hearing of the appeal, it should also be noted that the Appellant summarised his case by stating: " I told them everything but why were they not accepting me ?" The Appellant, it may be concluded, had in fact told " everything " and there was nothing left to tell.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12

case_text: The difficulty confronting the Appellant is simply the fact that the Tribunal was under no obligation to seek further information from him before proceeding to make a decision. In the circumstances of the present case, it is considered that it had no duty to inquire further: cf Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. As concluded by the Full Court in Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 at [24] by Moore, North and Emmett JJ, " the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ".


case_title: Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 , 106 FCR 426


case_title: Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47


case_title: Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50 , 74 ALJR 1404


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 , 177 ALR 473

case_text: This ground is understood to impermissibly seek merits review. Jurisdictional error is not normally exposed by mere factual error: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35] per McHugh J, [2001] HCA 10 ; 177 ALR 473. 27 As such, it is rejected. 28 At the outset of the hearing of the appeal an application was made by Mr Laba Sarkis to appear on behalf of the Appellant. Mr Laba Sarkis is neither a solicitor nor a registered migration agent. The application was opposed by the Respondent Minister and the request was denied.


case_text: A Court "has an inherent right in regulating its own proceedings to allow a person, not being a party or a party's lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice": Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [14] per Bennett J. Mr Laba Sarkis has been granted permission to advocate the interests of parties in other proceedings: SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394 at [16] , [2006] FCA 394 ; 90 ALD 634 at 646 7; Sam v Minister for Immigration & Citizenship [2007] FCA 1976 at [6] .


case_title: SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394 , 90 ALD 634


case_text: The matter may also be viewed in another way. It is clear that immigration detainees are subjected to a liability that may include detention in a prison or remand centre. Such institutions are not only places, they are institutions and they are run in particular and well-understood ways. How strange it would be that detainees might be so liable yet, as the applicant urges, have a right without more , to sue the public officials (or their private enterprise contractual aides) engaged in so running such institutions. The Parliament should not be taken to have authorised such a thing. In my opinion the Act should be interpreted as necessarily depriving the detainee of any such rights and as granting the otherwise lawful gaolers in the prisons and remand centres immunity from any such suit. The latter would remain liable of course for any otherwise illegal maltreatment of a detainee. This view better accords generally with the approach taken in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 ; (2004) 219 CLR 486 to a different but analogous problem. 87 On this view, the provisions of the Correctional Centres Act, if they would otherwise have anything to do with the case, have no relevant application. I doubt that, in any event, they do. In the ordinary case of imprisonment or remand in custody, it is the law as to penal confinement and the criminal process (or as to mental health or the like) not the prisons legislation, which gives the judge etc the power to order a deprivation of liberty. It is the order of the judge or other official which has the effect of the deprivation of the subject person's right to liberty and which authorises the executive arm of government to implement such deprivation. The warrants that are usually issued by courts serve simply to assure the relevant executive officers (or other persons with an interest in the matter) that such an order has been made. Section 39 of the Correctional Centres Act and its succeeding sections in Part 8 are concerned with fixing the identity of the executive officers charged, from time to time, with giving effect to a court's order, and otherwise indicating merely how it is to be implemented, including, under s 46, by giving immunity from suit for bona fide purported performance of acts that the statute contemplates. 88 In that context there is no need, in the interests of vindicating the presumption against statutory interference with liberty (or otherwise), to read the concept "or other competent authority" in the s 4 definition of "inmate" in the Correctional Centres Act as being limited to authorities of the same kinds as are referred to in the preceding words, namely persons acting at least quasi-judicially. It seems more likely that the framers of that legislation intended to "make a fresh start" by employing those words (to adopt a phrase from Chancery: Re Commonwealth Oil Corp Ltd [1917] 1 Ch 404 at 412-3), to provide a general, catch-all description of all authorities of whatever kind that were competent to require the detention of a person in a prison or remand centre. 107 The argument proceeds that confinement in a prison and subjection to prison discipline therein, "the entire regime of prison discipline, coercion and penal administration", among "the general criminal population" is not reasonably necessary to effect the deportation of a person. Reliance was also placed upon Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51. This submission was said not to contravene the expressions of opinion in Behrooz [2004] HCA 36 ; 219 CLR 486 at [20] and [175]. 109 The respondent says that the power to detain in a prison is, in many circumstances, including protection of persons and good order in a non-prison detention centre, "reasonably capable of being seen as necessary for the purposes of deportation". I agree. The respondent further accepts that the officers' powers to detain in a prison must not be exercised for punitive purposes in the sense of punishing perceived misconduct, far less than merely to silence troublesome demagogues, and the Act must be read down accordingly, which it can be. Again, I agree. As to conditions in the prisons, if otherwise actionable for trespass against the person or negligent breach of a duty of care, they may be sued upon but the conditions do not make detention in the place of detention unlawful: Behrooz [2004] HCA 36 ; 219 CLR 486. Again I agree. 110 The question then becomes whether Mr Soh has been able to establish, as a matter of fact, that he was transferred to punish his involvement in the disturbance. I think that it was genuinely considered, by those involved in the decision-making, that his continued presence at Villawood was likely to constitute a threat to officers' safety and to good order and reasonable discipline there. As a matter of reality, it would probably not have been unwelcome to the ACM officers that Mr Soh should find his removal to prison unpleasant. But the decision was actually taken by Mr Nicholls, (and adopted by Ms Symons) not by any of the ACM people. 111 Mr Nicholls acted on a recommendation by Mr Donatiello. The minute which contained that recommendation was predicated on Mr Soh's perceived "behaviour and the risk he presents to other detainees and staff". While the perceived behaviour was described, the conclusion was that: Mr Soh has shown no sign that this behaviour is unacceptable and was later involved in standing guard to prevent ACM officers from removing the Indonesian national. Reports have previously been received regarding Mr Soh's role in agitating fellow detainees and he has been counselled about his behaviour. His behaviour in this latest incident makes him unsuitable for the low security environment of the VIDC and he poses a risk to the good order and management of the VIDC.


case_text: Counsel for the applicant submitted that what was said respectively by Brennan, Deane and Dawson JJ and by McHugh J in Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 27-9, 32-3 and 71 still provides the relevant test of validity. The test is whether the statutory provisions permitting imprisonment of aliens are "reasonably capable of being seen as necessary for the purposes of deportation". Further, "if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object [of deportation], it will be regarded as punitive in character", per McHugh J at 71.


case_title: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 143 FCR 1

case_text: It is difficult, as counsel acknowledged, to draw any clear and reliable proposition of general applicability from the various judgments in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. However, some members of the High Court made pronouncements in that case (at [51], [53] per Gaudron & Gummow JJ, [63] per McHugh J and [152] per Hayne J) that could support a view that, once a denial of a duty to afford procedural fairness is uncovered in respect of a statutorily authorised administrative decision, the decision is to be treated as unlawful and void. However at least Gaudron and Gummow JJ, at a different point in their joint judgment, hedged their remarks to that effect with qualifications that appear contrary to giving such remarks their full literal force: see [46] and [57]. I am in any case bound by Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 143 FCR 1, a decision of the Full Court of this Court to view Bhardwaj 209 CLR 597 as not standing for what the applicant seeks to draw from it (at [42]). My own view is that, as in most cases, the words used in Bhardwaj 209 CLR 597 are to be regarded as limited to the context of the case in which they were uttered. Among other things Bhardwaj 209 CLR 597 was a case in which there was no discretionary reason to deny relief by way of constitutional writs.


case_text: In Leghaei v Director General of Security [2005] FCA 1576 , I considered whether the Australian Security and Intelligence Office (ASIO) had a duty to accord procedural fairness to the subject of an intended adverse security assessment, and held that it did. 95 I venture to repeat what I there said: The principles to be applied in relation to the legislative exclusion of procedural fairness were summarised by Finn J in [State of South Australia v] Slipper [2004] FCAFC 164 ; [(2004) 136 FCR 259] at 279-280 (with whom Branson and Finkelstein JJ agreed at [71] and [148]) and I respectfully adopt the following summary by his Honour: "(i) when a statute confers a power on a public official the exercise of which affects a person's rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication...; (ii) a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations...; (iii) an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness...; (iv) while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency... urgency cannot generally be allowed to exclude the right to natural justice... although it may in the circumstances reduce its content...'. (Emphasis added, references omitted.) ... There appears to have been no discussion in [a Royal Commission] Report of what rights should exist in relation to the matters occurring prior to any right of review arising, (and before the making of the actual assessment). It is, however, fair to say that Hope J seems to have assumed that the demands of security would necessarily be inconsistent with any express prescription of a right to be heard at first instance. There are problems about the validity of that assumption and, in any case, about using an indirect inference from such silence to ground or support an indirect inference which, admittedly with some degree of force, arises from the Act. Thus, if a person has a feasible right to be told as much of the case as the interests of national security will allow at a review level, then the same right might reasonably be said to exist at the initial assessment stage. Further, the task to be undertaken is not to consider whether there is any clearly positively implied intention that procedural fairness requirements apply; rather, it is to consider whether there is a necessary implication that such requirements do not apply. In this regard, I respectfully agree with Finn J's comment in Slipper at [ 11I]: '... against the background of a clearly recognised need to "strike a balance " between private and societal interests, one would have expected the legislature to have spoken with unmistakable clarity if it was to deny rights of procedural fairness that could otherwise have been made available...'. In my view, the 'unmistakable clarity' that procedural fairness was to be denied under the ASIO Act is lacking. (Emphasis in original.) 96 In my view an analogous approach here is appropriate and calls forth a similar result. 97 There was, in my opinion, a duty to accord the applicant appropriate procedural fairness in all the circumstances. (b) Was the duty complied with? 98 Whatever threat Mr Soh posed to the good order of Villawood and the safety of officers and perhaps others there, it does not appear that there was any effort to segregate him from the other detainees for any part of the 6 days that it took for Mr Nicholls to make his decision and for Ms Symons to carry it out. There was a more secure centre than Villawood, although it was in another State. Given a clear and present threat of going back to gaol, Mr Soh may well have been prepared to go a long distance to avoid that fate, even if his denials should be of no avail. In short, in his particular circumstances, he could reasonably have been given an opportunity to explain why he should not be sent to an actual prison or remand centre. The circumstances did not reduce the content of the duty, which I think existed, to give him procedural fairness to nil, or even close to it. He should have been given a hearing but was not see [79] above.


case_text: If I am wrong about that and damages fall to be assessed, they can only be for the relatively short period until Mr Soh was afforded a hearing which, after his transfer to Silverwater, he was. Mr Soh had previous experience of living among criminals and living to prison discipline, albeit on a prison farm. He was young, assertive, resourceful and strong. He was in any event liable to detention at Villawood or some such place. I should try to avoid parsimony but I cannot think that more than $50,000 damages would be required. In giving that expression of view I assume rather than decide that illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment it strikes me as the probably preferable route for development of the common law: cf Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622; The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 ; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Miller v The Queen (1985) 24 DLR (4 th ) 9.


case_outcome: discussed

case_title: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597


case_text: However, assuming that to be so, the applicant must, among other things, show both that Mr Furlong's act was invalid or unauthorised, and either that he knew it was so or that he actually intended to cause Mr Soh harm: Northern Territory v Mengel (1994) 185 CLR 307. 117 As to validity for constitutional reasons, I have dealt with this factually in relation to Mr Donatiello and Mr Nicholls. Mr Furlong might well have wished to cause Mr Soh some pain. But Mr Soh needs to show that Mr Furlong's purpose in making the recommendation that he did was punitive and not protective. Notwithstanding that Mr Furlong may have jumped to unjustified conclusions and may have had some private animus to Mr Soh, I am not so persuaded. He wrote the memorandum that he did because Mr Vita, his ACM superior, being told of events, required it in the interests of the protection of Villawood's people and good order. There was some apparently real basis for concern about such matters. He would, in my opinion, have written the memorandum whatever his personal feelings about Mr Soh. 118 As to lack of authority for acting as he did, Mr Furlong had both MSI-157 and Mr Vita's direction to guide him and to rely on.


case_text: The Migration Act , it was argued, gives "official[s]" a very broad discretion to detain in a prison; nothing in the Act prevents it being used for punitive purposes. As I understand the submission, the Act cannot, conformably with principle, as enunciated in Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110, 130 and 126, be read down so as to enable detention subject to usual prison regimens of coercion, regimentation and the human environment of a prison, whether in a prison or otherwise.


case_title: Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622


case_title: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58


case_text: The making of a declaration is a discretionary remedy. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable": cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at [149]-[153]; Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at [16] - [17] ; Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [56] ; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] . The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


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


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_title: The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452


case_title: Harvey v Phillips (1956) 95 CLR 235

case_text: In Harvey v Phillips (1956) 95 CLR 235 the High Court was concerned with a consent judgment in a personal injuries claim. The plaintiff sought to set aside the judgment on the ground that counsel appearing for her was not authorised to compromise the action. The High Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) held that, on the facts as found by the Supreme Court, the plaintiff had given her authority to her counsel to settle "however reluctant it may have been" (at 244). Earlier (at 242-243) their Honours had said that in the circumstances of the case it was not one where the court possessed a discretion to set aside the compromise. Instances of cases where there was such a discretion were: • Misapprehension or mistake by counsel in consenting to an order or settlement; • Where the assistance of the Court is invoked to carry into effect a compromise which otherwise could not be enforced; • Where counsel, owing to mistake or misapprehension, has acted in opposition to the client's instructions. Their Honours went on to say that where a compromise was made within the actual as well as the apparent authority of counsel there was no discretion to set the resulting order aside. It could only be set aside upon a ground which would suffice to render a contract "void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like" (at 243-244). 8 The central thrust of Mr Bristow's proposed appeal is an allegation of duress in the conduct of the mediation. As Harvey v Phillips holds, a consent order can be set aside if the agreement pursuant to which it was made is invalidated on the ground of, inter alia, duress. A fortiori, if the order is not a consent order in the true sense but one in which there is a discretion in the Court to set it aside (the second Harvey v Phillips category see [7] above), then proof of duress would be a ground for exercising that discretion. In the present case, however, as will appear, an arguable case of duress has not been established. 9 The sequence of events was as follows. On 12 December 2007 ASIC commenced the proceeding seeking interlocutory and final relief. The originating process was returnable on 5 February 2008. On that date Mr Bristow appeared and was represented by senior and junior counsel. Goldberg J made orders including setting down the application for interlocutory relief for hearing on 14 February and referring the proceeding to a Registrar for mediation to commence on or before 13 February. 10 On 14 February Mr Bristow was again represented by the same senior and junior counsel. During that hearing senior counsel on behalf of Mr Bristow sought an extension of the timetable for the conduct of the proceeding. He said that there was a large volume of material to respond to and that his clients would be "away on a holiday between 6 and 14 March". His Honour remarked, "Well, it's a matter for your clients to work out the priorities, I suppose". 11 His Honour made orders which included a direction that Mr Bristow and the other defendants serve any material in reply by 11 March and that the proceeding be set down for hearing on 22 April with an estimate of five days. His Honour noted that the material relied on by ASIC had been in the possession of the defendants since about the middle of the previous December. 12 The mediation did not commence until 21 February. It reconvened on 28 February and 20 March. Mr Bristow participated in the mediation and was again represented by the same senior and junior counsel. The mediation was conducted by the Victoria District Registrar of the Court, Ms Sia Lagos. On 20 March the parties arrived at a settlement. 13 Although there had been no halt order on the directions for the filing of material, Mr Bristow and the other defendants did not file any material in reply by 11 March as directed. On 14 March ASIC wrote to Mr Bristow's solicitors regarding this failure to comply with the directions. In the letter ASIC pointed out that Mr Bristow had not sought an extension of time for filing any affidavit material and that ASIC would not consent to any adjournment of the trial of the proceeding listed for 22 April. There was no response to that letter. 14 The matter came on again on 27 March before Goldberg J when the orders the subject of the present application were made. At this hearing, Mr Bristow was represented by the junior counsel who had appeared at the earlier hearings and at the mediation.


case_text: The applicants relied upon the following observation of Heerey J in Parker v Federal Republic of Germany (1997) 95 A Crim R 174 at 182 ( Parker ) that: "[A]n obligation to 'record in writing' is satisfied when the person signs or otherwise authenticates a document which has been written, typed or printed by some other person." 23 Parker was concerned with a magistrate's statutory obligation to "record in writing" the extradition offence for which a person was eligible for surrender to the Federal Republic of Germany, under s 19 of the Extradition Act 1988 (Cth). A similar conclusion was reached by the Full Court of this Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, on the issue of whether a memorandum endorsed as "approved" by the Commissioner of Taxation constituted a "direction in writing" by the Commissioner under reg 108(1) of the Public Service Regulations 1935 (Cth). The Court observed, at 350, that "[t]he endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government".


case_text: Parker was concerned with a magistrate's statutory obligation to "record in writing" the extradition offence for which a person was eligible for surrender to the Federal Republic of Germany, under s 19 of the Extradition Act 1988 (Cth). A similar conclusion was reached by the Full Court of this Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, on the issue of whether a memorandum endorsed as "approved" by the Commissioner of Taxation constituted a "direction in writing" by the Commissioner under reg 108(1) of the Public Service Regulations 1935 (Cth). The Court observed, at 350, that "[t]he endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government".


case_text: I have not overlooked the view I expressed above that, for the purposes of s 9(6) and s 46A(2A) of the Act, the determination in writing of the Minister and of the CEO of the ACC respectively must be signified or effected by a signature or other mark of the relevant natural person. It is generally expected that the same expression in different provisions of an enactment will bear the same meaning: see e.g. per Mason J in Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618. What s 7C(3) requires to constitute a determination in writing by the Board must however be ascertained having regard to the purposes of that particular provision, and the absence of any legislative prescription other than s 7G as to how the Board may do so, and the absence of any provision for the Board to have a common seal. In the circumstances, I do not think my conclusion reflects any inconsistency in the use of the requirement of a determination in writing in the provisions of the Act. In any event, the approach to construction requiring such consistency is not required to be applied inevitably but in the light of the relevant provisions: per Gibbs CJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633 at 643; and per Deane, Dawson and Gaudron JJ in Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 at 26-28.


case_title: McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633


case_text: I note in that regard that, as counsel for the applicants pointed out, there are several earlier decisions of this Court concerning the Money Laundering and Tax Fraud Determination, in which the determination is described as having been made on 15 May 2003 ( Hogan v Australian Crime Commission (2005) 154 A Crim R 336; S v Australian Crime Commission (2005) 114 FCR 431; S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361; P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114). No issue was apparently raised by the respective applicants in those earlier proceedings regarding the date on which the determination was made. That may reflect the view that the determination in writing of the Board was perfected by the Chair's authentication of the relevant resolution.


case_title: S v Australian Crime Commission [2005] FCA 1310 ; (2005) 144 FCR 431


case_title: S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361


case_title: P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114


case_text: The parties are agreed that s 7C imposes necessary procedures upon the exercise of the function of the Board to determine that an investigation is a special investigation. Consequently, it was accepted that notwithstanding s 16, if the Board had not complied with those prescribed procedures, it had no jurisdiction to make the determination in the terms of the instrument: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. 51 It is also strictly unnecessary to consider whether the privative clause in s 16 of the Act would prevent the applicants from challenging the validity of the warrants on the ground that they did not comply with s 22 of the Act. I have rejected their primary contention based on s 22. Section 16 purports to protect any "act or thing done by the ACC" from review on the ground that a determination under s 7C(3) was not lawfully made. Argument on this point focussed on whether the "act or thing" being challenged was an "act or thing done by the ACC", or an act or thing done by the issuing officer (who, it was agreed, is not part of the ACC). However, in relation to this argument, in any event, s 16 is apparently inapplicable because the particular complaint that the material provided to the issuing officer was inadequate is not necessarily premised on the proposition that the determination itself was not lawfully made. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 22 January 2007 Counsel for the Applicant: ML Abbott QC and CD Bleby Solicitor for the Applicant: Patsouris & Associates Counsel for the Respondent: SJ Maharaj QC and R Prince Solicitor for the Respondent: Australian Crime Commission Date of Hearing: 15 November 2006 Date of Judgment: 25 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/16.html


case_outcome: distinguished

case_text: A v B [1984] 1 All ER 265 (" A v B "), Leggatt J applied the exception to the general rule and refused to order production of the client's papers. In refusing the order, Leggatt J relied on the following matters: (1) the solicitors had a default judgment for their legal fees against the client; (2) the solicitors had performed a "massive" amount of work against a payment of no more than $10,000; (3) the possibility of considerable hardship to the client if the order for production was not made had passed; (4) the solicitors had behaved impeccably and their conduct could not be criticised; and (5) by contrast, the client had not advanced any reason for not paying the solicitors' fees, nor had it produced any evidence to show that it could not do so. In Ismail v Richards Butler (a firm) [1996] QB 711 (" Ismail "), Moore-Bick J varied an order made by a master that there be production subject to the client paying £150,000 to the solicitors and £310,000 into Court by requiring instead that the client provide security for £450,000. The case for an exception to the general rule was not as strong as the case of A v B because there was not on the material before the Court sufficient to enable the judge to decide whether at the conclusion the solicitor would be held entitled to recover the full amount of his claim, or indeed any particular amount. Nevertheless, security was appropriate and Moore-Bick J said (at 731): "However, when I consider the other aspects of this case I do think that some departure from the normal practice is called for in the interests of justice. I can see no basis for criticising Richards Butler's conduct in this matter, and such indications as there are suggest that in some respects the plaintiffs' attitude may owe more to negotiating tactics than to a real sense of grievance. I accept that the plaintiffs require the immediate delivery of the papers in the three matters mentioned in their summons which remain fully live, but if Richards Butler are required to hand over the papers on the usual terms their lien is likely to prove of little value when the papers are returned to them. It has not been suggested, on the other hand, that the plaintiffs are likely to suffer any real hardship if they are required to provide security of another kind other than the general effect on their cashflow of having to fund a payment into court. That is a difficulty which can probably be largely overcome by providing security in some other recognised form. Taking all these matters into account I am satisfied that the interests of justice in this case require that the plaintiffs provide some security for Richards Butler's claim." It seems to me that the effect of the authorities is that the general rule is that, where the solicitor terminates the retainer, an order for production will be made. There may be exceptional circumstances which lead to a modification of the general rule. The modification of the general rule will, generally speaking, involve the imposition of terms, such as part payment or payment into court or the provision of security. In an extreme case like A v B , where the factors identified in [44] are present, that may lead to a refusal of an order for production. However, generally speaking, the presence of exceptional circumstances will lead to the imposition of terms. That to my mind is the effect of the decision in Gamlen and, I think the decision of Moore-Bick J in Ismail is consistent with that conclusion. In Ismail , Moore-Bick J said (at 731) that he could see no basis for criticising the conduct of the solicitors and that there was evidence to suggest that the client's attitude owed more to negotiating tactics than a real sense of grievance. It seems to me that this case is clearly distinguishable from the case before Leggatt J in A v B . It is also distinguishable from Ismail because I cannot say that the cross-claimants do not have a real sense of grievance or indeed a substantial cause of action against the cross-respondent. It seems to me that this case is analogous to the decision in Gamlen . It presents the same problem identified by Goff LJ (see [41] above) in that there may prove to be nothing in the cross-claimants' allegations against the cross-respondent, but it is simply not possible to say that at this stage. They are substantial, they arise directly out of the applicants' claim and they are the subject of a cross-claim.


case_text: party referred me to a number of cases which discuss the relevant principles. The respondents emphasised statements to the effect that the Court's power to order that the costs of an interlocutory proceeding be paid forthwith is exercised only in very special circumstances ( Vasyli v AOL International Pty Ltd (unreported, Lehane J, 2 September 1996)). The applicants referred to statements in the authorities to the effect that the power to order that the costs of an interlocutory proceeding be paid forthwith should be used less sparingly than it has in the past ( Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906 at [31] per Graham J).


case_text: addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .


case_text: Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614 ; [1980] 1 All ER 1049 (" Gamlen "), Goff LJ held that the general rule in a case where the solicitor terminates the retainer applied. His Lordship did not rule out an exception where the solicitor discharged himself for good cause but said that the solicitor would have difficulty establishing that fact in circumstances where the client alleges that the solicitor's charges were excessive or there had been a breach of duty by the solicitor. His Lordship said (at 623; 1057): "... a solicitor can withdraw for good cause and 'good cause' is 'non-payment.' But we cannot decide the questions which the defendants have raised when they say that the appellants' charges are excessive, and also a further charge which they have made, of some kind of negligence or breach of duty on the part of the appellants. They have not yet formulated that in any definite terms, but one way is suggested in the correspondence in that they allowed their partner, then an assistant solicitor, to become so involved that the plaintiffs have seen fit to add him as a defendant. There may be absolutely nothing in this at all, but Mr. Churchward still remains a party, and the allegation that he joined the conspiracy still remains upon the record. As it seems to me, we cannot decide the question of 'good cause' either on the point of the allegation that the charges are excessive, or on the second ground." Templeman LJ referred to the general rule and the exception to it in the following passages (at 624-625; 1058-1059): "The solicitor himself may determine his retainer during an action for reasonable cause, such as the failure of the client to keep the solicitor in funds to meet his costs and disbursements; but in that case the solicitor's possessory lien, i.e. his right to retain the client's papers of any intrinsic value or not, is subject to the practice of the court which, in order to save the client's litigation from catastrophe, orders the solicitor to hand over the client's papers to the client's new solicitors, provided the new solicitors undertake to preserve the original solicitor's lien and to return the papers to the original solicitor, for what they are worth, after the end of the litigation. ... Where the solicitor has himself discharged his retainer, the court then will normally make a mandatory order obliging the original solicitor to hand over the client's papers to the new solicitor against an undertaking by the new solicitor to preserve the lien of the original solicitor. I wish to guard myself against possible exceptions to this general rule. The court in fact is asked to make a mandatory order obliging the original solicitor to hand over the papers to the new solicitor. An automatic order is inconsistent with the inherent, albeit judicial, discretion of the court to grant or withhold a remedy which is equitable in character. It may be, therefore, that in exceptional cases the court might impose terms where justice so required. For example, if the papers are valueless after the litigation is ended and if the client accepts that he is indebted to the original solicitor for an agreed sum and has no counterclaim, or accepts that the solicitor has admittedly paid out reasonable and proper disbursements, which must be repaid, the court might make an order which would only compel the original solicitor to hand over the papers to the new solicitor providing that in the first place the client pays to the original solicitor a sum, fixed by the court, representing the whole or part of the moneys admittedly due from the client to the original solicitor. Much would depend on the nature of the case, the stage which the litigation had reached, the conduct of the solicitor and the client respectively, and the balance of hardship which might result from the order the court is asked to make." Templeman LJ considered whether there were exceptional circumstances which justified a modification of the general practice. His Lordship said (at 627; 1060): "In my judgment, there are no grounds for modifying the usual practice. This action was begun in 1974; the appellants acted until June 1979 and the action was set down for March 1980—possibly a little optimistically. Whether the defendants this day can lay their hands on the money to pay the appellants' demands, I know not, but the defendants dispute the appellants' right to be paid in principle and in quantum. It would be disastrous for the defendants if their new solicitors could not, at this stage, obtain the papers held by the appellants." It seems to me that the effect of the authorities is that the general rule is that, where the solicitor terminates the retainer, an order for production will be made. There may be exceptional circumstances which lead to a modification of the general rule. The modification of the general rule will, generally speaking, involve the imposition of terms, such as part payment or payment into court or the provision of security. In an extreme case like A v B , where the factors identified in [44] are present, that may lead to a refusal of an order for production. However, generally speaking, the presence of exceptional circumstances will lead to the imposition of terms. That to my mind is the effect of the decision in Gamlen and, I think the decision of Moore-Bick J in Ismail is consistent with that conclusion. In Ismail , Moore-Bick J said (at 731) that he could see no basis for criticising the conduct of the solicitors and that there was evidence to suggest that the client's attitude owed more to negotiating tactics than a real sense of grievance. The matters identified by Templeman LJ in Gamlen as going to whether or not a departure from the general rule is justified are as relevant to whether security is provided as they are to whether an order for production is refused. In other words, it is not the case that the only question in determining whether there should be terms such as part payment or payment into court or security is whether the client has negated an ability to pay. That is a relevant factor, no doubt, but it is only one factor among the others which have been identified. When, in the present case, the cross-claimants' new solicitors asked the cross-respondent to produce the cross-claimants' papers, the cross-respondent offered to do so in accordance with the professional conduct rules which govern its practice as a firm of solicitors, namely, the Professional Conduct and Practice Rules 2005 made by the Law Institute of Victoria Limited ("the Victorian Rules") (cll 7, 23.4). The effect of the Victorian Rules is that, where the solicitor terminates the retainer and the client's papers are essential to the client's defence or prosecution of current proceedings, the solicitor must hand over the papers to the client upon receiving satisfactory security for the unpaid costs, or to the client's new solicitor upon the new solicitor providing reasonable security for the payment of the solicitor's costs on entering into an agreement with the client and the solicitor to procure payment of the solicitor's costs upon completion of the relevant proceedings. As far as I can see, the South Australian Rules of Professional Conduct & Practice are to the same effect (cll 7, 23.4). The professional conduct rules set out circumstances in which a practitioner must hand over his client's papers. They do not purport to define exhaustively the circumstances in which a practitioner must hand over his client's papers. In any event, they could not do that, or do it in a way which binds the Court. Application of principles The cross-respondent terminated its retainer with the cross-claimants. The cross-claimants are engaged in an existing proceeding and I am satisfied that they need their papers for the proceeding, and, in view of the proximity of the trial date, the papers are needed as a matter of urgency. The cross-claimants may have a substantial counter-claim against the cross-respondent. That counter-claim is potentially much larger than the cross-respondent's claim for outstanding fees. That counter-claim has been brought and, subject to events not presently foreseeable, will be determined in the very proceedings for which the cross-claimants seek their papers. It seems common ground that at least some of the papers will be produced on discovery. Furthermore, I do not think I can, on the evidence before me, find that the cross-claimants have delayed in bringing forward their allegations against the cross-respondent. A conflict of interest in the cross-respondent acting for the cross-claimants while the cross-claimants were alleging negligence on the part of the cross-respondent was identified at an early stage. Unfortunately, the conflict was not resolved at that early stage. Of course, it may transpire that the cross-respondent is innocent of any negligence or of any criticism for its conduct of the proceeding. The point is that I cannot, on the evidence before me, find that the cross-claimants may not have a substantial claim against the cross-claimants which has not been brought forward in a timely, or reasonably timely, fashion. I recognise on the other hand that if the cross-respondent is right it is owed a substantial amount of money and that there appears to be no dispute that its fees for unrelated matters are due and owing. I also recognise that the cross-respondent's lien is likely to be of little value to it at the conclusion of the proceeding if the order now sought is made. I also recognise that the cross-claimants have not adduced any evidence that they are unable to provide security. Having said that, I do not think that there are the type of exceptional circumstances which might justify a refusal to make an order for production or the making of an order which is conditional on part payment or payment into court or the provision of security. It seems to me that this case is clearly distinguishable from the case before Leggatt J in A v B . It is also distinguishable from Ismail because I cannot say that the cross-claimants do not have a real sense of grievance or indeed a substantial cause of action against the cross-respondent. It seems to me that this case is analogous to the decision in Gamlen . It presents the same problem identified by Goff LJ (see [41] above) in that there may prove to be nothing in the cross-claimants' allegations against the cross-respondent, but it is simply not possible to say that at this stage. They are substantial, they arise directly out of the applicants' claim and they are the subject of a cross-claim.


case_text: position is different where it is the solicitor who brings his retainer to an end. In that case, it is said in the authorities that the general rule is that the solicitor will be required to produce the client's papers upon an undertaking that they be returned to the solicitor upon the completion of the proceeding. The rationale for the general rule was explained by Lord Cottenham LC in Heslop v Metcalfe [1837] EngR 1161 ; (1837) 3 My & Cr 183 at 188-9; [1837] EngR 1161 ; 40 ER 894 at 896-897: "Undoubtedly, that doctrine may expose a solicitor to very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client, if—to take the case which is not uncommon in the smaller practice in the country—a solicitor, who finds a poor man having a good claim, and having but a small sum of money at his command, may go on until that fund is exhausted, and then, refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be a great grievance and means of oppression to a poor client, who, with the clearest right in the world, might still be without the means of employing another solicitor. The rule of the Court must be adapted to every case that may occur, and be calculated to protect suitors against such conduct. Now, a solicitor, if he knows that he must trust to the result of the cause for his remuneration will, of course, be disposed to proceed with it in such a way as, while it promotes the interest of his client, is most likely to render his lien available. I have no doubt, therefore, that the existence of the lien, while it is a great protection to the solicitor against his client, is also a great benefit to the client; but the benefit would be entirely lost, if the solicitor might stop short in the middle of the suit, and insist upon retaining the papers, because then no other solicitor could take up and carry on the cause." This general rule is subject to an exception, but the precise boundaries of the exception have not been clearly identified in the authorities.


case_text: refer also to the discussion of the general principles by Drummond J in In the Matter of an Application by Weedman (unreported, Drummond J, 17 December 1996) and by Keane JA in Stark v Dennett [2008] 2 Qd R 72.


case_title: IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147


case_text: Ismail v Richards Butler (a firm) [1996] QB 711 (" Ismail "), Moore-Bick J varied an order made by a master that there be production subject to the client paying £150,000 to the solicitors and £310,000 into Court by requiring instead that the client provide security for £450,000. The case for an exception to the general rule was not as strong as the case of A v B because there was not on the material before the Court sufficient to enable the judge to decide whether at the conclusion the solicitor would be held entitled to recover the full amount of his claim, or indeed any particular amount. Nevertheless, security was appropriate and Moore-Bick J said (at 731): "However, when I consider the other aspects of this case I do think that some departure from the normal practice is called for in the interests of justice. I can see no basis for criticising Richards Butler's conduct in this matter, and such indications as there are suggest that in some respects the plaintiffs' attitude may owe more to negotiating tactics than to a real sense of grievance. I accept that the plaintiffs require the immediate delivery of the papers in the three matters mentioned in their summons which remain fully live, but if Richards Butler are required to hand over the papers on the usual terms their lien is likely to prove of little value when the papers are returned to them. It has not been suggested, on the other hand, that the plaintiffs are likely to suffer any real hardship if they are required to provide security of another kind other than the general effect on their cashflow of having to fund a payment into court. That is a difficulty which can probably be largely overcome by providing security in some other recognised form. Taking all these matters into account I am satisfied that the interests of justice in this case require that the plaintiffs provide some security for Richards Butler's claim." It seems to me that the effect of the authorities is that the general rule is that, where the solicitor terminates the retainer, an order for production will be made. There may be exceptional circumstances which lead to a modification of the general rule. The modification of the general rule will, generally speaking, involve the imposition of terms, such as part payment or payment into court or the provision of security. In an extreme case like A v B , where the factors identified in [44] are present, that may lead to a refusal of an order for production. However, generally speaking, the presence of exceptional circumstances will lead to the imposition of terms. That to my mind is the effect of the decision in Gamlen and, I think the decision of Moore-Bick J in Ismail is consistent with that conclusion. In Ismail , Moore-Bick J said (at 731) that he could see no basis for criticising the conduct of the solicitors and that there was evidence to suggest that the client's attitude owed more to negotiating tactics than a real sense of grievance. It seems to me that this case is clearly distinguishable from the case before Leggatt J in A v B . It is also distinguishable from Ismail because I cannot say that the cross-claimants do not have a real sense of grievance or indeed a substantial cause of action against the cross-respondent. It seems to me that this case is analogous to the decision in Gamlen . It presents the same problem identified by Goff LJ (see [41] above) in that there may prove to be nothing in the cross-claimants' allegations against the cross-respondent, but it is simply not possible to say that at this stage. They are substantial, they arise directly out of the applicants' claim and they are the subject of a cross-claim.


case_title: Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903


case_title: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639


case_text: following summary is, for the most part, taken from my reasons for an earlier judgment I delivered in this proceeding: Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925. The applicants in this proceeding are Mr Patrick Campbell Rafferty, Santora Holdings Pty Limited ("Santora") and Karaville Holdings Pty Limited ("Karaville"). Santora is a wholly-owned subsidiary of Karaville and Mr Rafferty and his wife own all of the issued shares in Karaville. The respondents in the proceeding are Time 2000 West Pty Limited ("T2W"), Time 2000 Systems (Australia) Pty Limited ("T2S"), Time 2000 Operations (Australia) Pty Limited ("T2O"), Embleton Limited (a company incorporated in Hong Kong) ("Embleton") and Mr Stephen Gerard Donovan. On 17 December 2008, I made an order that the application of the respondents for an order transferring this proceeding to the Victoria District Registry be refused. I further ordered that the costs of the respondents' notice of motion be reserved to the next directions hearing ( Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925). On the same day, I decided that it was appropriate to make the freezing orders sought by the applicants ( Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931) and those orders were made on 19 December 2008.