case_text: As has been repeatedly pointed out, judicial review of an administrative decision -- let alone judicial review confined to jurisdictional error -- does not extend to a review of the merits of a decision: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. These observations have been oft cited with approval: eg, Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.


case_outcome: followed

case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_outcome: cited

case_text: On that occasion there was no appearance by either of the now Appellants and the application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth): SZJLH v Minister for Immigration & Citizenship [2007] FMCA 2067. 24 Any continuing significance as to the events of 28 November 2007, however, remains elusive. As set forth in the reasons for decision of the Federal Magistrates Court now under appeal, an application was made on 12 February 2008 to vacate the orders previously made and, on that occasion, the Federal Magistrate in fact vacated the orders as requested and proceeded to hear and resolve the case then sought to be advanced. 25 There is no procedural unfairness in either the Federal Magistrate initially dismissing the application in November 2007, when the now Appellants failed to appear, and certainly no procedural unfairness in the Federal Magistrate thereafter, in February 2008, entertaining and resolving the arguments that were subsequently sought to be advanced. Whatever may have been the reasons for the now Appellants not previously appearing before the Federal Magistrates Court, they need not be further pursued; their case has been heard and determined by that Court in a procedurally fair manner.


case_text: The Federal Magistrates Court ultimately dismissed an application seeking to review the decision of the Tribunal: SZJLH v Minister for Immigration & Citizenship [2008] FMCA 175. 5 The Appellants now appeal to this Court from that decision. The Grounds of Appeal as set forth in the Notice of Appeal (without alteration) provide as follows: His Hon. Federal Magistartae Raphel FM failed to hold that the Refugee Review Tribunal made a jurisdictional error when it misunderstood or misconstrued the term "religious belief" as it appears in the UN Refugee Convention . The RRT failed to appreciate that appellant suffered harm at the hands of Muslims opponents only because of his religious belief being a Hindu . The Tribunal did not understand the applicant's fear of harm and misaaplied the law-affected the Tribunal's application of law. The appellants claim that the Tribunal failed to assess the cumulative effects of separate incidents of attacks on the appellant related with his claim for the protection visa. The Appellants claim that they have fear of persecution . 2.The appellants were denied procedural fairness when Hon Federal Magistrate failed to consider that appellants did not attend the scheduled hearing on 28 November 2007 due to financial hardship . They were unable to pay airfare and train fare because of financial hardship . They could not inform the Court because the network in that countryside was not working . Hon. Federal Magistrate did not give any consideration to waive the Respondent's cost of $4500. Notwithstanding the numbering appearing in those grounds, it is considered that the Notice of Appeal raises three grounds. 6 There was, however, no appearance for the Appellants when the matter was called on for hearing at 2.20 pm this afternoon. The matter was then called outside the Court, but to no avail. The proceedings were stood down to 2.35 pm to accommodate the prospect that the Appellants may have been late in arriving. The matter was then called outside the Court but again to no avail. The interpreter who attended Court to assist the Appellants was requested to telephone the Appellants on the mobile phone number set forth in their Notice of Appeal . That number was dialled, but the mobile telephone was turned off. 7 Counsel for the First Respondent sought an order that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). 8 Previously filed by the Appellants was a written Outline of Submissions which has been considered, as have the Respondent Minister's written submissions.


case_outcome: referred to

case_text: The applicant seeks to sidestep these problems by relying upon the Commissioner's appeal statement required by O 52B r 5 of the Federal Court Rules . It is submitted that, on the basis that all the facts asserted in the appeal statement are accepted, the applicant can demonstrate that it will carry the burden of proof of establishing that the declaration should not have been made. The applicant relies upon the decision of Sundberg J in Rio Tinto Ltd v Federal Commission of Taxation [2004] FCA 335 ; (2004) 55 ATR 321 particularly at [31] and [58] that underlines the importance of the appeal statement and the necessity for it to fully state the basis of the relevant decision, and refers to Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . It is submitted for the Commissioner that an appeal statement should not be used in this way.


case_text: The Commissioner submits that the application is misconceived. In order to succeed the Court must be satisfied that the Commissioner has no reasonable prospect of successfully defending the proceeding (s 31A(1)(b) Federal Court of Australia Act 1976 (Cth)), although a defence need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)). It is clear enough that s 31A is wider than the previous regime for summary judgment had become. Counsel cited a number of decisions that have discussed this provision the latest being Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] per Jacobson J and Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] per Tamberlin J. However, limited assistance is to be gained from other decisions. "No reasonable prospect of successfully defending the proceeding" is a statutory phrase that does not permit or require paraphrase. Whilst the bar may be lower than it was, it still requires a considerable leap.


case_text: The applicant submits that it is quite clear that it did not get a "GST benefit" from any scheme that has been or might be identified. An entity only gets a GST benefit if the amount of GST payable by it is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme (s 165-10(1)(a)). That requires adopting a hypothesis as to what would have occurred had the scheme not been entered into. It is submitted that the hypothesis must be reasonable and based upon the evidence ( Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 385; Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at 412). It is submitted for the applicant that no such hypothesis has been or could be adopted here.


case_title: Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359


case_text: In my opinion, the authorities cited by counsel for the Commissioner, namely Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 at 45 per Isaacs J, Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244 and Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441 at [47] [51], upheld on appeal at (2005) 61 ATR 239, establish the correctness of the Commissioner's contentions.


case_text: The applicant contends, as a separate point, that if the applicant received a GST benefit, that benefit was attributable to the making by Holdings of a choice, election or application that is expressly provided for by the GST Act and so Div 165 does not operate by reason of s 165-5(1)(b). Registration for GST purposes is governed by Pt 2-5 of the GST Act. It is submitted that application for cancellation of registration in the approved form was a choice, election or application expressly provided for by s 25-55(1)(a). Reference was made to the decision of the High Court in Federal Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70 ; (2005) 225 CLR 488 at 514 515 and to the decision of Greenwood J in Walters v Commissioner of Taxation (2007) 162 FCR 421 particularly at [83] [85].


case_outcome: applied

case_title: Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441


case_title: Platypus Leasing Inc v Commissioner of Taxation (2005) 61 ATR 239


case_title: Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244


case_title: Rio Tinto Ltd v Federal Commission of Taxation [2004] FCA 335 ; (2004) 55 ATR 321


case_title: Walters v Commissioner of Taxation (2007) 162 FCR 421


case_text: first is the fact that the order is sought to be made prospectively, that is, a replacement in anticipation of a pending resignation. Counsel has referred me to several authorities which provide clear authority for reading the relevant section in that way, namely, Re Application of Vouris and Anor (2004) 49 ACSR 543; [2004] NSWSC 384 ; Re Wily and Anor (2003) 49 ACSR 94; [2003] NSWSC 1260 and Re McGrath and Anor (as liqs of HIH Insurance Ltd) (in liq) (2005) 54 ACSR 55; [2005] NSWSC 506. I am satisfied that there is power to make the order sought and there being power, it is clearly convenient to do so, subject to the other aspect. My concern in a nutshell is that the suspension of a liquidator may not achieve very much if the firm of which he is a member continues in practice, to do the work. My concern, however, is alleviated very considerably because counsel is able to point out that in the matters of both Vouris and Wily , to which I have referred, experienced corporations judges in the Supreme Court, Palmer J and Barrett J, have each permitted the replacement of one liquidator by another in very similar circumstances. Whilst there is no real discussion in those decisions of the point that troubles me, I am certain that it would not have escaped the attention of either of those judges. The fact that they made the respective appointments in question is an indication that in situations like this, because of the practical consequences, the judges have been prepared to rely upon the professional responsibility of the replacement liquidator. I am, therefore, in sound company in so doing.


case_text: first is the fact that the order is sought to be made prospectively, that is, a replacement in anticipation of a pending resignation. Counsel has referred me to several authorities which provide clear authority for reading the relevant section in that way, namely, Re Application of Vouris and Anor (2004) 49 ACSR 543; [2004] NSWSC 384 ; Re Wily and Anor (2003) 49 ACSR 94; [2003] NSWSC 1260 and Re McGrath and Anor (as liqs of HIH Insurance Ltd) (in liq) (2005) 54 ACSR 55; [2005] NSWSC 506. I am satisfied that there is power to make the order sought and there being power, it is clearly convenient to do so, subject to the other aspect.


case_title: Re Wily and Anor (2003) 49 ACSR 94; [2003] NSWSC 1260


case_text: The application of these principles leads inevitably to the following rules which, I am entitled to assume, were likely known to Mr Higgins. First, a valid patent can only be granted to the real inventor and if there be more than one inventor it must be granted to all: Thomas v Weeks , 2 Paine 92 (1827); Barrett v Hall , 2 F Cas 914 (1818); Carter v Perry , 8 OG 518 (1875). Second, in the case of a joint invention, a patent issued to only one of the inventors is void: Ex parte Barsaloux, James and Lyon , 16 OG 233 (1878); American Electrical Novelty & Manufacturing Co v Newgold , 108 F 957 (1901) aff'd 113 F 877 (1902). Third, a patent issued in the names of joint patentees will, unless all of them are the inventors, also be void: Stewart v Tenk , 32 F 665 (1887); Hotchkiss v Greenwood , 12 F Cas 551 (1848); Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900). See also W Robinson, The Law of Patents , vol 1 (1890) 570-573.


case_outcome: discussed

case_text: The final case from the Supreme Court is Agawam Company v Jordan , 74 US 583 (1868). It is a leading case. There is a passage in the judgment of Justice Clifford which is regarded as a classic statement of the applicable principle. It reads (at 602-603): "No one is entitled to a patent for that which he did not invent unless he can show a legal title to the same from the inventor or by operation of law; but where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention. Suggestions from another, made during the progress of such experiments, in order that they may be sufficient to defeat a patent subsequently issued, must have embraced the plan of the improvement, and must have furnished such information to the person to whom the communication was made that it would have enabled an ordinary mechanic, without the exercise of any ingenuity and special skill on his part, to construct and put the improvement in successful operation."


case_title: Barrett v Hall , 2 F Cas 914 (1818)


case_title: Carter v Perry , 8 OG 518 (1875)


case_title: Clothworkers of Ipswich Case, The (1615) 1 Godb 252

case_text: The patent system in England had its origins in the royal grants by which monopolies in trade and manufacture were conferred by the Crown in the exercise of the prerogative. These monopolies were granted to "any man [who] by his own charge and industry, or by his own wit or invention, doth bring any new trade into the realm": Darcy v Allin (1602) Noy 173, 182. In his Institutes , Sir Edward Coke said: "The reason wherefore such a privilege is good in law is because the inventor bringeth to and for the common wealth a new manufacture by his invention, costs and charges, and therefore it is reason, that he should have a privilege for his reward (and the encouragement of others in the like) for a convenient time": 3 Coke's Institutes 184. The monopoly could be granted not only to the inventor but also to the person who first brought the new invention into England: The Clothworkers of Ipswich Case (1615) 1 Godb 252; Shepherd's Abridgment , Pt III, Prerog, 61; Hawkins Pleas of the Crown , vol 1, c 29, s 20.


case_title: Darcy v Allin (1602) Noy 173


case_text: Now it is clear that when Parliament enacted s 32 of the 1903 Act it intended that a patent would be granted only to the true (Parliament used the word "actual") inventor or a person claiming under him. In particular, "capitalists" could no longer take an interest in a patent, save as assignee. Nor could a patent be granted to the "importer" of an invention unless he had the consent of the inventor. Moreover, one necessary consequence of the adoption (with the limited exception of the importer with consent) of the US model was that a patent that was granted to one of two inventors was not granted to the "actual inventor". Nor was a patent granted to the "actual inventor" if it was granted jointly to two or more persons one of whom was not the inventor. The position must be the same under the 1990 Act for there is no material difference in language. This conclusion accords with the result in Davies Shephard Pty Ltd v Stack [2001] FCA 501 ; (2001) 51 IPR 513, although I have reached it by a different process of reasoning. 17 The respondents say that even if the grant be contrary to s 15, the patents in suit cannot be revoked. They put the argument as follows. First, the power to revoke is to be found in s 138(3). That sub-section provides that the court may revoke a patent on any of the following grounds: (a) that the patentee is not entitled to the patent; (b) that the invention is not a patentable invention; (c) that the patentee has contravened a condition in the patent; (d) that the patent was obtained by fraud, false suggestion or misrepresentation; (e) that an amendment of the patent request or the complete specification was made or obtained by fraud, false suggestion or misrepresentation; (f) that the specification does not comply with subsection 40(2) or (3). The next step is that, seeing that it is permissible to issue a patent to joint inventors, the words "the patentee is" in s 138(3)(a) must, in the case of a joint grant, be read as "the patentees are" (see also s 23 of the Acts Interpretation Act 1901 (Cth)). The conclusion that is then said to follow is that a patent can only be revoked under paragraph (a) if all "the patentees [are] not entitled to the patent." 18 I do not agree with this construction of s 138(3)(a). I accept, as I obviously must, that in the case of a joint patent it is proper to read s 138(3)(a) as covering joint patentees. Nonetheless, such a reading does not carry the respondents' argument. If one of several patentees is not entitled to the patent, then it is still correct to say (as it would be in the case where none of the patentees were entitled) that "the patentees are not entitled to the patent".


case_text: In any event, if s 138(3)(a) were not available to the applicant, it might rely on s 138(3)(d) and contend that if its assertions of fact are proven at trial the grant was obtained by "false suggestion or misrepresentation". As to the availability of false suggestion in the circumstances see Minter v Wells (1834) 1 WPC 127; R v Mussary (1834) 1 WPC 41; Earl of Devonshire's Case (1687) 11 Co 90.


case_title: Ex parte Barsaloux, James and Lyon , 16 OG 233 (1878)


case_title: Gibbons v Ogden , 22 US 1 (1824)

case_text: In light of what was said by Mr Higgins during the debate on the 1903 Act, to ascertain the meaning of "inventor", as well as the intended effect of s 32, it is necessary to look at the "decisions in the United States" that Mr Higgins most likely had in mind. They are decisions which consider the Patents clause of the US Constitution , Art I SS 8 , cl 8 (giving Congress the power to secure to "inventors" the "exclusive right to their discoveries") and, in some instances, the early US patent statutes (under which a patent could be granted to the person who "hath or have invented or discovered" (1790), or had "invented" (1793), or had "discovered or invented" (1836), a new and useful art). There are three decisions of the US Supreme Court that are likely candidates. The first is Gibbons v Ogden , 22 US 1 (1824). This was not a patent case but it did discuss the Patents clause in the following passage from the judgment of the court (at 58-59) delivered by Chief Justice Marshall: "The power, as granted in the constitution, is a limited power. It is a clear principle, that when the means of executing any given power are specified in the grant, Congress cannot take, by implication, any other means, as being necessary and proper to carry that power into execution. This power, then, is limited: (1) As to the persons and objects in regard to which it may be exercised: these are, 'authors and inventors, writings and discoveries.' This enumeration excludes all right in Congress to legislate on the subject of any improvement, which is not an 'invention', either domestic or foreign. It excludes also all right to legislate for the benefit of any person who is not himself 'the inventor'. (2) As to the means of executing the power, and the time during which those means may be exercised. They are by 'securing the exclusive right for limited times.'"


case_title: Hotchkiss v Greenwood , 12 F Cas 551 (1848)


case_text: The respondents also contend that, having regard to the use of the present tense in s 138(3)(a), a condition precedent to a revocation order is a finding that the patentees were not entitled to the patent at the time of the application for revocation (or perhaps at the time of the hearing). I am far from persuaded that this construction is correct and it seems to be contrary to the views of Cooper J in Stack v Brisbane City Council (1999) 47 IPR 525, 536 and Crennan J in JMBV Enterprises Pty Ltd v Camoflag Pty Ltd [2005] FCA 1474 , [130]-[131]. But even if this construction were correct, the way in which I would read the section is that if a person were not entitled to the patent at the time of grant then, at least in most cases, that non-entitlement would be (as here) a continuing state of affairs. So there is really nothing in the point.


case_title: Jones v Pearce (1831) 1 WPC 121

case_text: The first statute which regulated the grant and sole use and exercise of an invention was the now famous Statute of Monopolies, 21 Jac 1, c 3. By this statute, which was declaratory of the common law, it was provided, in the sixth section, that a patent could be granted to the "true and first inventor or inventors" of any new manufacture. The inventor was the person who made the discovery; that is, the idea for it originated in his own mind: Jones v Pearce (1831) 1 WPC 121, 124. The inventor was also the person who first introduced the invention into the realm: Edgeberry v Stephens (1693) 2 Salk 447. It sometimes was said that the grant to a person not the inventor but the importer of the invention should be regarded "as a sort of anomalous decision": Marsden v Saville Street Foundry and Engineering Co, Ltd (1878) 3 Ex D 203, 205 per Jessel MR.


case_title: Kennedy v Hazelton , 128 US 667 (1888)

case_text: The second case is Kennedy v Hazelton , 128 US 667 (1888). This was an action for the specific performance of an agreement to assign a patent. The defendant, however, was not the true inventor. The action failed. Justice Gray delivered the opinion of the court. He said (at 672): "The patent law makes it essential to the validity of a patent, that it shall be granted on the application, supported by the oath, of the original and first inventor, (or of his executor or administrator,) whether the patent is issued to him or to his assignee. A patent which is not supported by the oath of the inventor, but applied for by one who is not the inventor, is unauthorized by law, and void, and, whether taken out of the name of the applicant or of any assignee of his, confers no rights as against the public."


case_title: Edgeberry v Stephens (1693) 2 Salk 447


case_title: Marsden v Saville Street Foundry and Engineering Co, Ltd (1878) 3 Ex D 203


case_title: Minter v Wells (1834) 1 WPC 127


case_title: R v Mussary (1834) 1 WPC 41


case_title: Stack v Brisbane City Council (1999) 47 IPR 525


case_title: Stewart v Tenk , 32 F 665 (1887)


case_title: Thomas v Weeks , 2 Paine 92 (1827)


case_title: Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900)


case_text: My attention was drawn by counsel for the respondent to Order 62 Rule 4(2)(c), and to the observations of von Doussa J in Beach Petroleum NL v Johnson (1995) 57 FCR 119 concerning the evident purpose of the Court's power to make costs orders of the kind here presently sought by the respondent, that being to avoid an ongoing counter productive dispute, in the interests of achieving finality, subject always to the need to ensure that unreasonable amounts of costs are not pursued and awarded. I have not approached the task of assessment akin to that of a detailed 'taxation', which cannot sensibly be the judicial task set by the Court Rules, but rather from the perspective of an overview of the nature and extent of the relating broad issues which fell upon me for resolution, being misconceived issues nevertheless of some complexity, raised unsuccessfully by the applicants for resolution at the final hearing of the proceedings. I refer of course to what appears in the detailed reasons apparent in my reasons for judgment of 20 December 2004. 15 Judgment should clearly enough be entered in principle in favour of the respondent and thus adversely to the applicants, in relation to the totality of its legal costs reasonably incurred. My conspectus of the amount of those costs, broadly undertaken in the light of the nature and extent of the issues raised by the applicants in the principal proceedings, leaves little room for any reasonable quantum of adjustment downwards of the assessment of professional costs and disbursements which has been assembled in the material in evidence before me. Adopting a broad approach generally in line with that taken by von Doussa J in Beach Petroleum , albeit that the size of the proceedings there involved was incomparable to that litigated before me, yet nevertheless taking into account the degree of complexity of the proceedings occasioned by the purported issues raised by the applicants, I would assess the costs and disbursements of the respondent broadly in the sum of $20,400 inclusive of counsel's fees, that sum being of course not far short of the total amount claimed, but nevertheless taking into account the respondent's concession. In reaching that figure, I have also considered the submissions of the applicants contained in their notice of objections to the respondent's bill of costs, those being the only submissions before me from the applicants on the costs sought. 16 That leaves unresolved the costs of the present interlocutory proceedings commenced by the respondent by notice of motion filed on 21 October 2005, in relation to which, as I have already recorded, there was no appearance by the applicants. The conduct of the applicants since the conclusion of the hearing, which I have briefly outlined, renders it inevitable that a further adverse order as to the costs of the present application must be made in principle in favour of the respondent, as is sought in its notice of motion filed on 21 October 2005. I say ' in principle ' for the further reason that it is traditional for a successful party to receive on taxation, an award of costs and disbursements incurred in the course of the taxation process, and it was I think reasonable in the circumstances for the respondent to have sought recourse to Order 62 rule 4(2). I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 1 February 2006 The Applicants did not appear. Counsel for the Respondent: Mr P T Russell Solicitor for the Respondent: Barringer Leather Lawyers Date of Hearing: 22 November 2005 Date of Judgment: 1 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/26.html


case_text: There is no doubt that, the "sunset" order made on 17 May 2007 not yet having led to the proceeding being dismissed, the Court has power under O 35 r 7(2) or under O 28 r 5 to set aside that order: see RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 or to extend the time to appeal from the further orders for security for costs made on 14 February 2007. Although generally the power to set aside a judgment or order should be sparingly exercised (see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 550-552), I think the power is more readily exercised in the case of an interlocutory order where the public interest in the finality of litigation does not weigh so heavily in the scales.


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


case_text: However, this is not a case where the applicant can assert that it has not had a proper opportunity either to address the applications for further security for costs or, those orders having been made, to address the applications that the proceeding be dismissed for it having failed to pay the further security for costs ordered. That it did not participate in the hearing on 17 May 2007 was a matter for it. Even in respect of that hearing, it does not profess inadvertence or ignorance (although Ms Watson herself may not have known of that hearing): see e.g. Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71; Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672 at 684.


case_title: Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672


case_text: Accordingly, subject to considering the applicant's second and third contentions, I am not persuaded that it should be granted a further extension of time within which to appeal from the further security for costs orders made on 14 February 2007. In brief, it has not explained the delay satisfactorily at all. It has not demonstrated any relevant significant change in circumstances, even if the Deumer Asia letter of 15 July 2007 were to be permitted to be adduced in evidence on the appeal (as to which see e.g. Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444). It has not explained, in any event, why that letter could not have been procured much earlier. It has not sought to have the security for costs orders discharged. It is clearly, and admittedly, unable to pay the further security for costs orders and will be unable to meet any costs of the respondents if the matter proceeds to hearing and the applicant is unsuccessful. 28 Nor has any reason been identified of any substance as to why the orders of 14 February 2007 for further security for costs might be set aside on appeal. There is no draft notice of appeal, nor anything identifying error. 29 The second matter argued by the applicant relates to matters taken into account when the further security for costs orders were made. It is not a new argument. It is discussed in Cosdean (No 2) [2007] FCA 163 at [12] [14].


case_text: In my view, the second and third matters raised by the applicant may be seen as errors asserted by the applicant in the making of the further security for costs orders on 14 February 2007. Otherwise, they are simply an attempt to re-argue matters which have already been argued. I shall also therefore consider whether those matters might demonstrate some arguable prospect of success if an extension of time to appeal from those orders were granted. I do not think these matters demonstrate a relevant mistake of fact in considering the potential award of damages, in considering the capacity of the applicant to fund the second tranche of key rings as discussed in Cosdean (No 2) [2007] FCA 163at [12] [14]. Nor do I think that they otherwise provide an arguable basis for error from the discretionary judgment to impose the further security for costs orders upon the applicant: See House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 505. 34 For those reasons, I do not consider that the applicant should be granted a further extension of time within which to appeal from the further security for costs orders made on 14 February 2007, or from the order presently staying the proceeding until the further security for costs was paid, made on 19 February 2007. 35 I am further of the view, having regard to the conclusion I have reached that there should be no extension of time within which to appeal from the further security for costs orders, and having regard to the accepted inability of the applicant to comply with those orders by providing further security for costs, that the orders made on 17 May 2007 should not be discharged. The applicant is faced with further orders for security for costs. It cannot satisfy them. It acknowledges that. The proceedings have been permanently stayed. In those circumstances, nothing has been shown to indicate that the orders dismissing the proceedings against each of the respondents were inappropriate in the first place, or should now be discharged.


case_text: it cannot be said that the delay between the date of the delegate's decision and the date upon which the Tribunal heard and determined the matter affected the Tribunal's reasoning processes. It seems to me therefore that the Tribunal complied with its obligations under s 425 of the Act and that there was no denial of procedural fairness. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [25] : What is required by procedural fairness is a fair hearing, not a fair outcome. ... The relevant question is about the Tribunal's processes, not its actual decision. The High Court's observations seem to me to be apt in the present case. Moreover, I do not see that the delay between the appellant's date of arrival in Australia and the date upon which the Tribunal dealt with the matter can be said to give rise to any ground of review. The appellant complained that he had forgotten the relevant facts which occurred in 1995, but as the High Court observed in SZBEL at [40]: [I]t is for the applicant for a protection visa to establish the claims that are made out. This is not a case in which the appellant was affected by any disparity between the issues considered to be dispositive by the delegate and the issues which arose in relation to the decision under review. Here it appears that the appellant's claim before the delegate had a different basis to the claim which he put before the tribunal in the written statement to which I have referred above.


case_text: it cannot be said that there was any breach of s 424A of the Act because the information upon which the Tribunal relied was not "information" within the meaning of section 424A(1): see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [18] . It follows that the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobsson. Associate: Dated: 24 April 2009 The Appellant was self-represented. Counsel for the Respondents: P. Reynolds Solicitor for the Respondents: Clayton Utz Date of Hearing: 22 April 2009 Date of Judgment: 22 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/409.html


case_title: Bittmann v Australian Securities and Investments Commission [2006] FCA 1532

case_text: The background to this matter is set out in the judgment of Jessup J in Bittmann v Australian Securities & Investments Commission [2006] FCA 1532 (' Bittmann v ASIC '). For clarity here, some elements of the procedural history are worth setting out again. 2 The applicant appeals from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 21 August 2006. The nature of the applicant's complaint is set out in the decision of the Tribunal at [1]-[2]: "Mr Bittmann was the secretary and director of Antal Air Pty Ltd (Antal Air). He complained to the respondent about the manner in which controllers and liquidators of an unsecured creditor of Antal Air discharged their functions. In letters to Mr Bittmann dated 22 September 2003, 14 June 2004 and 14 June 2006 the respondent stated that it did not intend to take any action on his complaint. Mr Bittmann sought review of the decisions on the basis that Part 5.3A of the Corporations Act 2001 (the Corporations Act ) deals with voluntary administration and should be applied to all controllers and liquidators." The Tribunal determined (at [8]) that the respondent's decisions to take no action in relation to the applicant's complaint did not come within the scope of s 244 of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act') and were not reviewable by the Tribunal under that provision. The Tribunal decided that it did not have jurisdiction to determine the application that the applicant sought to make, because it was unable to identify any other statutory basis permitting it to review the decisions that the applicant attributed to the respondent. 3 The applicant appeals from the Tribunal's decision that it does not have jurisdiction to review the respondent's decisions that are the subject of the applicant's complaint. Appeals to this Court from the Tribunal can only be brought on questions of law: see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act'). 8. Such further or other orders as the Honourable Court deems appropriate." 5 The applicant has also provided to the Court a document that sets out the orders that he seeks. Amongst others, he seeks orders in the following terms: "ASIC/Liquidators have used their position to defeat creditors, employees and shareholders from the companies that they control. ASIC/Liquidators do not have judicial powers in S 536. That power is conferred to the Court. (ASIC's submission to the Tribunal on 21 August 2006 was misconceived re S 536.) The applicant have leave to make application to the Administrative Appeals Tribunal pursuant to S 1317E(1) to demonstrate contravention of the Act." 6 By way of motion, notice of which was given on 10 October 2006, the respondent sought to have the notice of appeal struck out. The matter came before me for directions on 12 October 2006. On that date, I ordered (amongst other things) that the respondent's motion be adjourned for hearing to 13 November 2006 and that the respondent file and serve a short outline of submissions. Jessup J kindly heard the motion on that date, as I was engaged in another hearing. 7 In written submissions filed prior to the hearing before Jessup J, the respondent referred to s 44 of the AAT Act. The respondent noted that a question of law must arise from the decision of the Tribunal from which the applicant appeals and that O 53 r 3(2) of the Federal Court Rules ('the Rules') requires that the question of law be set out in the notice of appeal. Additionally, the notice of appeal must set out the orders sought and the grounds relied upon in support of the orders. The notice of appeal filed by the applicant, so the respondent said, did not state a question of law and contained irrelevant assertions and argument. 8 On 13 November 2006, counsel for the respondent sought to rely on O 9 r 7 of the Rules in support of the strike out motion. In so doing, counsel relied on a decision of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (' Lambroglou '): see Bittmann v ASIC at [11]. As Jessup J noted subsequently, Lambroglou did not assist the respondent on the application of O 9 r 7, which, as his Honour noted, is directed towards setting aside originating process in circumstances where there is some procedural deficiency or irregularity: see Bittmann v ASIC at [11]-[12]. Here, the respondent does not point to any procedural defect in the notice of appeal. Instead, it seeks to have the notice of appeal struck out on the ground that it fails to identify a question of law that might form the subject of the appeal. In the result, Jessup J ordered that the respondent's motion be dismissed, but that the respondent have leave to make further application in relation to the applicant's notice of appeal: see Bittmann v ASIC at [13].


case_text: Such further or other orders as the Honourable Court deems appropriate." 5 The applicant has also provided to the Court a document that sets out the orders that he seeks. Amongst others, he seeks orders in the following terms: "ASIC/Liquidators have used their position to defeat creditors, employees and shareholders from the companies that they control. ASIC/Liquidators do not have judicial powers in S 536. That power is conferred to the Court. (ASIC's submission to the Tribunal on 21 August 2006 was misconceived re S 536.) The applicant have leave to make application to the Administrative Appeals Tribunal pursuant to S 1317E(1) to demonstrate contravention of the Act." 6 By way of motion, notice of which was given on 10 October 2006, the respondent sought to have the notice of appeal struck out. The matter came before me for directions on 12 October 2006. On that date, I ordered (amongst other things) that the respondent's motion be adjourned for hearing to 13 November 2006 and that the respondent file and serve a short outline of submissions. Jessup J kindly heard the motion on that date, as I was engaged in another hearing. 7 In written submissions filed prior to the hearing before Jessup J, the respondent referred to s 44 of the AAT Act. The respondent noted that a question of law must arise from the decision of the Tribunal from which the applicant appeals and that O 53 r 3(2) of the Federal Court Rules ('the Rules') requires that the question of law be set out in the notice of appeal. Additionally, the notice of appeal must set out the orders sought and the grounds relied upon in support of the orders. The notice of appeal filed by the applicant, so the respondent said, did not state a question of law and contained irrelevant assertions and argument. 8 On 13 November 2006, counsel for the respondent sought to rely on O 9 r 7 of the Rules in support of the strike out motion. In so doing, counsel relied on a decision of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (' Lambroglou '): see Bittmann v ASIC at [11]. As Jessup J noted subsequently, Lambroglou did not assist the respondent on the application of O 9 r 7, which, as his Honour noted, is directed towards setting aside originating process in circumstances where there is some procedural deficiency or irregularity: see Bittmann v ASIC at [11]-[12]. Here, the respondent does not point to any procedural defect in the notice of appeal. Instead, it seeks to have the notice of appeal struck out on the ground that it fails to identify a question of law that might form the subject of the appeal. In the result, Jessup J ordered that the respondent's motion be dismissed, but that the respondent have leave to make further application in relation to the applicant's notice of appeal: see Bittmann v ASIC at [13]. 12 I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.


case_text: The requirement that a notice of an appeal from the Tribunal state a question of law has been considered in numerous cases. As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself." Order 53 r 3(2) of the Rules requires that the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal be stated separately: compare Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 per Branson and Stone JJ, with whom Marshall J relevantly agreed at 67; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-301 per Branson J; and Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 563-565 per Sundberg and Kenny JJ and 570-571 per Gyles J (dissenting).


case_title: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55


case_title: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290


case_title: Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551


case_text: I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.


case_title: Zoia v Administrative Appeals Tribunal [2003] FCA 303


case_title: Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272


case_title: Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2000) 220 CLR 129

case_text: The pecuniary penalties which the Act applies are punitive in nature. Their character is not adequately described by the rather anodyne term 'protective' Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [35] [37], [41] [43] and [99]. Consistently with the characterisation as punitive the object of the penalties is general and specific deterrence. That is the deterrence of those who might be tempted not to comply with the law and the deterrence of the particular contravenor who might be tempted to re-offend Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583 at 608 (Cooper J), Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 114 (Santow J).


case_text: The pecuniary penalties which the Act applies are punitive in nature. Their character is not adequately described by the rather anodyne term 'protective' Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [35] [37], [41] [43] and [99]. Consistently with the characterisation as punitive the object of the penalties is general and specific deterrence. That is the deterrence of those who might be tempted not to comply with the law and the deterrence of the particular contravenor who might be tempted to re-offend Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583 at 608 (Cooper J), Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 114 (Santow J). 91 In Donovan Cooper J was concerned with the application of penalties under s 1317EA(3)(b). He said of the section that: 'Its purpose in an appropriate case is to punish, but principally imposition of a pecuniary penalty is to act as a personal deterrent and a deterrent to the general public against a repetition of like conduct.' The same approach was adopted by Santow J in Adler in which his Honour said (at [125]): 'It is well established that the principal purpose of a pecuniary penalty is to act as a personal deterrent and a deterrent to the general public against a repetition of like conduct.'


case_title: Australian Securities and Investments Commission v Alder (2002) 42 ACSR 80


case_title: Australian Competition and Consumer Commission v ABB Transmission Distribution Ltd (No 2) (2002) 190 ALR 169

case_text: In the context of competition law in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 (at 174 [17]) Finkelstein J said: 'In antitrust cases retribution has no real role to play. Nor does rehabilitation, but for different reasons. Those who view retribution as an appropriate theory of punishment hold that the offender must be given some punishment because he "ought" to be punished: the "an eye for an eye, a tooth for a tooth" approach to criminality. The proponents of this view see some social satisfaction in a "just" punishment, perhaps because it can be regarded as repayment to society for the violation. It might also be justified as suppressing acts of private vengeance. However, society is moving away from using a punishment for retribution even in purely criminal cases and, to my mind, it has no role to play in relation to the punishment of a corporation. One difficulty is that if punishment is to be regarded as an exercise of morality, presumably there must be some relationship between the harm intended by the criminal act and the harm inflicted on the offender. But as there is no measurable relationship between the two types of harm, there is no reasonable basis for choosing a particular penalty. Rehabilitation is a concept that has no useful role to play regarding corporations for one cannot rehabilitate a legal fiction. So, if the purpose of antitrust laws is to define certain socially intolerable conduct, deterrence must be the means by which a corporation is to be hindered from engaging in that conduct.' The general approach thus outlined is also relevant to the imposition of penalties for breach of the Act particularly as in this case, breaches of provisions designed to maintain an informed market. 93 The deliberateness of a corporation's contravening act or omission may be taken into account as a factor relevant to the risk of that corporation reoffending. That is relevant to particular deterrence. When a corporation takes a calculated risk by intentionally or recklessly failing to disclose material information to the market, it may be inferred that there is a corporate culture which encourages or, at least, tolerates or permits decision-making which expressly or implicitly weighs the benefit of non-compliance against the risk if non-compliance is detected. For such deliberate conduct, the risk associated with re-offending must be set at a high level by high penalties. It is not necessary or useful to tread upon the shifting sands of moral denunciation in having regard to issues such as intention or recklessness in fixing penalty cf however, the helpful and comprehensive discussion of the issue, albeit with a different perspective, in the context of competition law penalties by Yeung K in Securing Compliance :A Principled Approach (Hart Publishing, 2004, at Chapter 4). 94 Where non-disclosure conduct amounts to fraud by the deliberate non-disclosure of information calculated to affect decision-making by potential investors or creditors, the Court should not hesitate, as an incident of its penalty fixing process, to identify the unacceptable character of such conduct. However the continuous disclosure obligation imposes a duty not limited to abstention from intentional breach, or the avoidance of recklessness or carelessness. Its possible contraventions will cover a wide range of conduct. In such a case it is preferable to find a common principle applicable to the full range of conduct by reference to considerations of deterrence rather than super-added qualitative considerations of uncertain provenance relating to the morality of the particular contravenor's actions.


case_title: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 69

case_text: When a regulator brings action to enforce the provisions of a public statute and agreed orders and penalties are proposed, it is not the role of the Court merely to rubber stamp them. In this respect what I said in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 is relevant in the present case (at 79]: 'As a general principle fair and appropriate settlements are encouraged to reduce the burden of litigation on both public and private resources. Courts are frequently asked to play their part by accepting formal undertakings or making orders by consent which prohibit parties from certain conduct or require them to do certain things. Sometimes they are asked to impose agreed pecuniary penalties. In carrying out those functions, courts are conscious of the public interest in the settlement of cases. They must also be conscious, however, that the laws they apply are public laws. It is in the public interest that, in considering agreements between parties requiring orders of the court, the court does not act as a mere rubber stamp. What is proposed must always be scrutinised to determine whether the undertakings or consent orders are within power and are appropriate.'


case_text: In relation to proposed pecuniary penalties, Burchett and Kiefel JJ said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (at 291): 'There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.' 102 In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619 , Weinberg J referred to what he considered to be the 'somewhat undesirable practice on the part of the ACCC in presenting this Court with a specific figure as an 'agreed pecuniary penalty'' (at [32]). While acknowledging that both the ACCC and Colgate had accepted that the figure proposed was in no way binding upon the Court, his Honour could not find a single instance when the Court had not in the past endorsed such a figure. His Honour went on (at [34]): 'It is difficult to imagine that the parties would propose a pecuniary penalty that is so clearly beyond the permissible range that the Court will depart from it. As the authorities presently stand, the Court is bound to impose an agreed pecuniary penalty, save in such circumstances.' His Honour acknowledged the importance of the principles enunciated in NW Frozen Foods and, in particular, the need for corporations to have certainty of outcome if they were to be encouraged to engage in negotiated settlements. He was bound by those principles and the well-established line of authority to accept that the Court would not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure. His Honour said: 'However, there are dangers associated with this approach. The Court may be seen, perhaps not altogether incorrectly, to act as a 'rubber stamp' in simply approving a decision taken at an executive level by a body charged with investigating and prosecuting contraventions of the Act, but having no role in actually imposing particular sanctions for those contraventions. Negotiated settlements are an important vehicle for resolving complex matters such as those involving the present case. It must be borne in mind, however, that there is a public interest in ensuring that corporations that engage of behaviour of the kind that occurred in this case are dealt with appropriately, and that proper recognition is given to the need for specific and general deterrence. There are important parallels between the fixing of a pecuniary penalty under s 76 , and the ordinary sentencing process which is quintessentially a matter for the courts.' His Honour made clear that he was not critical of a joint submission between regulator and contravenor about what might be the appropriate range of pecuniary penalties to be imposed. A submission couched in those terms could assist in achieving a measure of certainty and consistency of treatment with other like cases. 103 I agree, with respect, with the remarks of Weinberg J. In the end, however, no 'agreed penalty' can bind the Court. Consistently with NW Frozen Foods the Court will apply a principle of judicial restraint in deciding whether or not to make orders in the terms proposed by the parties. But that principle of judicial restraint is not a self imposed constraint equating the role of the Court to one of judicial review of a sentencing discretion. Such a self imposed limitation could amount to an abdication of the duty that the Court has to exercise the jurisdiction which is invoked and the powers conferred upon it by the Parliament. NW Frozen Foods does not, in my opinion, confine the Court to the imposition of a penalty differing from the agreed penalty only where the agreed penalty would be outside the range of penalties which could be imposed in the proper exercise of a sentencing discretion. The restraint which is applied by the Court to regulatory settlements is informed by practical considerations which differ from the principles and criteria informing its judicial review function or the exercise of its appellate jurisdiction in relation to discretionary judgments.


case_text: In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619 , Weinberg J referred to what he considered to be the 'somewhat undesirable practice on the part of the ACCC in presenting this Court with a specific figure as an 'agreed pecuniary penalty'' (at [32]). While acknowledging that both the ACCC and Colgate had accepted that the figure proposed was in no way binding upon the Court, his Honour could not find a single instance when the Court had not in the past endorsed such a figure. His Honour went on (at [34]): 'It is difficult to imagine that the parties would propose a pecuniary penalty that is so clearly beyond the permissible range that the Court will depart from it. As the authorities presently stand, the Court is bound to impose an agreed pecuniary penalty, save in such circumstances.' His Honour acknowledged the importance of the principles enunciated in NW Frozen Foods and, in particular, the need for corporations to have certainty of outcome if they were to be encouraged to engage in negotiated settlements. He was bound by those principles and the well-established line of authority to accept that the Court would not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure. His Honour said: 'However, there are dangers associated with this approach. The Court may be seen, perhaps not altogether incorrectly, to act as a 'rubber stamp' in simply approving a decision taken at an executive level by a body charged with investigating and prosecuting contraventions of the Act, but having no role in actually imposing particular sanctions for those contraventions. Negotiated settlements are an important vehicle for resolving complex matters such as those involving the present case. It must be borne in mind, however, that there is a public interest in ensuring that corporations that engage of behaviour of the kind that occurred in this case are dealt with appropriately, and that proper recognition is given to the need for specific and general deterrence. There are important parallels between the fixing of a pecuniary penalty under s 76 , and the ordinary sentencing process which is quintessentially a matter for the courts.' His Honour made clear that he was not critical of a joint submission between regulator and contravenor about what might be the appropriate range of pecuniary penalties to be imposed. A submission couched in those terms could assist in achieving a measure of certainty and consistency of treatment with other like cases. 103 I agree, with respect, with the remarks of Weinberg J. In the end, however, no 'agreed penalty' can bind the Court. Consistently with NW Frozen Foods the Court will apply a principle of judicial restraint in deciding whether or not to make orders in the terms proposed by the parties. But that principle of judicial restraint is not a self imposed constraint equating the role of the Court to one of judicial review of a sentencing discretion. Such a self imposed limitation could amount to an abdication of the duty that the Court has to exercise the jurisdiction which is invoked and the powers conferred upon it by the Parliament. NW Frozen Foods does not, in my opinion, confine the Court to the imposition of a penalty differing from the agreed penalty only where the agreed penalty would be outside the range of penalties which could be imposed in the proper exercise of a sentencing discretion. The restraint which is applied by the Court to regulatory settlements is informed by practical considerations which differ from the principles and criteria informing its judicial review function or the exercise of its appellate jurisdiction in relation to discretionary judgments.


case_outcome: considered

case_title: King v AG Australia Holdings Ltd [2003] FCA 980

case_text: At the hearing on 31 March 2006, I raised two main issues concerning the form of the proposed settlement agreement, and invited counsel to make further submissions about those matters in due course. The first issue concerned a provision in the proposed settlement agreement which contemplated amendment to the statement of claim after Court approval to finalise the list of group members. The provision set out the circumstances in which the Court may add or delete persons from that list. Clause 1.1(g) of the proposed settlement agreement provided: 'On filing of the affidavit set out in sub-paragraph (f) above, the Statement of Claim be amended in an approved Form so that the Group Members to whom the proceeding relates within the meaning of Section 33H of the [FCA] Act be the Claimants. However, the addition or deletion of persons to or from the said list may be effected at any time by the Court if it is satisfied that the omission or inclusion of the person on the said list was the result of a slip by the Applicant's Lawyer or the Court.' I expressed concern at the hearing on 31 March 2006 that the proposed grounds upon which the Court may add or delete persons from the finalised list of group members under cl 1.1(g) were too narrow, having regard to the decision of Moore J in King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2003] FCA 980 (' King' ). In that case, Moore J considered the question whether the Court should make an order finalising the class of group members and, in particular, whether the Court should be able to add or delete persons from the final list of group members in circumstances other than those resulting from some kind of slip or mistake. His Honour considered that the Court should reserve a power to add or delete group members in 'other circumstances', and he so ordered: at [7]. 14 The variations to the proposed settlement agreement were threefold. First, cl 1.1(g) of the proposed settlement agreement was amended to widen the Court's power to add or delete members from the final list of group members. It now provides that the Court may add or delete members from the final list of group members not just in the case of error by any party, its representative or the Court, but also in 'other circumstances'. This reflects the language which Moore J included in the settlement agreement in King . 15 Secondly, cl 5.12 of the proposed settlement agreement was amended to provide that the determination of the quantum of damages of any claim by agreed counsel should be subject to the right of the claimant to apply to the Court on a question of law arising from the determination. 16 The third amendment provides a mechanism by which the Court can maintain an ongoing supervision of the process for assessment and determination of group members' claims. It involves the addition of a new cl 8.3 which provides: 'The solicitors for the parties have liberty to apply to the Court for determination of any matter arising in relation to the implementation of this settlement agreement.'


case_text: The second matter I raised with counsel on 31 March 2006 arose from my consideration of Finkelstein J's decision in Lopez v Star World Enterprises Pty Ltd (1999) 21 ATPR 41-678 (' Lopez' ). In that case, Finkelstein J was concerned with an application for approval of a settlement agreement under which an expert would determine the quantum of damages to which each group member would become entitled. The settlement agreement provided that the expert's determination would not be subject to review. His Honour expressed some reservation as to whether the Court's jurisdiction to supervise the settlement process could be ousted in that fashion: at 42,671. 6 In the present case, the proposed settlement agreement is similar to that considered by Finkelstein J in Lopez, in that it provides for a process whereby the quantum of damages of group members' claims is to be assessed and determined by agreed counsel. The agreed counsel is to act as an expert. Under cl 5.12 of the proposed settlement agreement: '[a]ny determination of the Agreed Counsel of an amount of damages to which the Claimant is entitled is, subject to paragraph 5.10 hereof, binding on the Claimant and the Respondent with no right of appeal therefrom.' Clause 5.10 sets out a special process in respect of a claimant who is under a disability, which provides that the assessment of damages is subject to Court approval. 7 In Lopez, Finkelstein J resolved the issue by reserving liberty to any group member to apply to the Court to challenge the validity or enforceability of any of the provisions of the settlement scheme. In the light of Lopez , I wished to consider whether the Court needed to take any, and if so what, steps to preserve its supervisory jurisdiction, and whether the device of reserving liberty to apply provided a completely satisfactory mechanism for doing so. 8 Another issue raised at the 31 March hearing concerned the notice requirement imposed by s 33X(4) of the FCA Act. Section 33X(4) provides that unless the Court is satisfied that it is just to do so, an application for approval of a settlement under s 33V must not be determined unless notice has been given to group members. The applicant sought to dispense with that requirement in the present case. Notwithstanding that notice of the proposed settlement agreement had not been given to group members, counsel for the applicant, Mr Armstrong, submitted that it was appropriate to approve the proposed settlement for essentially two reasons. First, Mr Armstrong contended that the cost of advertising was expensive and was not warranted in this case. Secondly, he contended that the notice requirement was unnecessary in the circumstances, having regard to the process in the proposed settlement agreement for notifying group members of the settlement of the proceeding, and giving them an opportunity to immunise themselves from the effects of the settlement agreement if they so desired. 9 Mr Armstrong submitted that the notice requirement was designed to ensure that group members are not bound by a settlement agreement of which they have not been given notice. He pointed out that the proposed settlement agreement contained a process whereby group members were to return claim forms in order to access the benefit of the settlement agreement, and any group member who did not want to be bound by the settlement could achieve that result by not returning the claim form. Counsel also submitted that notice of the proposed settlement was unnecessary because the present case lacked 'an element of compromise' of the value of the group members' claims. This was not a case where the parties had agreed on a lump sum that was to be distributed in a way that involved any form of discounting of the value of each group member's claim. Rather, the respondent had effectively agreed to pay each group member's claim in full in accordance with the assessment process set out in the proposed settlement agreement. 10 Having considered these submissions, I was not persuaded to dispense with the notice requirement on 31 March 2006. I was conscious that group members may wish to raise issues concerning the form, content and finality of the proposed settlement arrangement before the Court approved it. Accordingly, I ordered that on or before 4 April 2006, the applicant cause a notice in the terms annexed to the orders to be published in one of The Age, Saturday Age or Sunday Age newspapers, and one of The Herald Sun, Saturday Herald Sun or Sunday Herald Sun newspapers. I adjourned the application for approval of the proposed settlement agreement to 7 April 2006 so as to allow notice of the settlement and notice of the application to the Court for its approval to be advertised in accordance with section 33X(4) of the FCA Act. 11 The matters I raised on 31 March 2006 had been addressed fully, and in my view appropriately, by the time the matter came before me on 7 April 2006. 12 Pursuant to the orders I made on 31 March 2006, the applicant placed the required advertisements in The Age and The Herald Sun newspaper on 4 April 2006. Following those advertisements, no group member came forward to object to any of the provisions of the proposed settlement agreement. 13 On 3 April 2006 the applicant and the respondent entered into an agreement to vary the proposed settlement agreement in order to address the matters I raised at the 31 March hearing. The consolidated settlement agreement that is now before me incorporates these variations. The applicant moves the Court for approval of the consolidated settlement agreement.


case_text: I have carefully reviewed the proposed settlement agreement in the light of the relevant authorities: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 4) [2004] VSC 466 ; Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 (' Williams'); King; Lopez . I am satisfied that the consolidated settlement agreement represents a fair, reasonable and appropriate settlement of the claims made in this proceeding and that it should be approved by the Court: Williams at 465 [19]. Of its nature, the settlement is one which is readily susceptible to Court approval. In effect, the terms of settlement provide for the admission of liability in respect of claims advanced by group members and set out a simplified process for the assessment of the quantum of damages on each claim by agreed counsel. In my view, this is an appropriate means of ensuring speedy, efficient and fair determination of the quantum of the claims.


case_title: Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459


case_text: The second way in which the applicant sought to characterise the error was to claim that it led the Tribunal member to fail to take into account a relevant consideration, namely, the Federal Magistrates Court's views as to the best interests of Jedi. In my opinion, there are two answers to this submission. First, it is clear that the Tribunal member was in no way bound by the views of the Federal Magistrates Court. The relevant consideration was the best interests of the child, not the view of the Federal Magistrates Court as to the best interests of the child. At best, the latter was an item of evidence that may be relevant to that consideration ( Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237). Secondly, even if the implicit view of the Federal Magistrates Court was a relevant consideration it is a consideration the Tribunal member was permitted but not bound to take into account. The Tribunal member was bound to make up his own mind about the best interests of Jedi having regard to the matters in the direction and his inquiry involved an examination of the range of matters referred to in the direction. 44 For these reasons, I reject the applicant's first submission. 45 The applicant also referred to the presumption of equal shared parental responsibility introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). He referred to ss 61DA and 61DB which are in the following terms: 61DA Presumption of equal shared parental responsibility when making parenting orders (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or (b) family violence. (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. 61DB Application of presumption of equal shared parental responsibility after interim parenting order made If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.


case_text: The applicant's submission that the Tribunal member misunderstood the nature of the discretion in s 501(2) of the Act must be rejected. It is true that he did appear to misstate the nature of the discretion in that part of his reasons which I have summarised above ([29]) but his reasons must be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. The Tribunal member was clearly alert to the nature of the discretion he was called upon to exercise. At the beginning of his reasons he said the only issue before him was whether the discretion to cancel the visa should be exercised and he concluded his reasons by saying that he had decided that it was appropriate to exercise the discretion under s 501(2) of the Act to cancel the applicant's visa. Furthermore, throughout his reasons, and, in particular when addressing the three primary considerations, the Tribunal member referred to a particular factor as one favouring a decision to cancel the applicant's visa. 48 I do not think that the Tribunal member misunderstood the nature of the discretion. 49 The applicant submits that in his analysis of other relevant considerations, the Tribunal member should have, but did not take into account the following: 1. Articles 23 and 24 of the International Covenant on Civil and Political Rights (New York, 16 th December 1966) Australian Treaty Series 1980 No 23 and Articles 5, 9 and 10 of the Convention on the Rights of the Child (New York) 20 November 1989 Australian Treaty Series 1991 No 4; 2. The hardship which would be suffered by the applicant if he was to lose contact with his son; and 3. The fact that the applicant was not warned that if he committed serious offences he may jeopardise his visa.


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


case_text: The Tribunal member commenced his examination of the third primary consideration by summarising the relevant paragraphs in the direction. He noted that the applicant's submissions focused on the best interests of his son, Jedi. At the time of the hearing before the Tribunal, he was 16 months old. The applicant submitted that he was being denied access to his son, and that if his visa was cancelled, there would be virtually no way in which future access or contact could be made. The applicant gave evidence that he wanted to remain in Australia so that he could form a meaningful relationship with his son. He submitted that his son would be disadvantaged if he grew up without a father. He referred to the evidence of Mr Tuddenham and he submitted that he was African American and that it was his desire to share his cultural background with his son. The Tribunal member referred to certain observations of Gray J in Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529. The Tribunal member then said: The applicant referred to the fact that Ms Fraser had consented to the contact orders for Jedi made in the Federal Magistrates Court. The Tribunal draws no adverse inferences from the fact that Ms Fraser so consented. Nor does the Tribunal accept the applicant's submission that, by granting the contact orders by consent, the Court was articulating that the best interests of the child would be served by allowing him to have contact with his father. 25 The orders referred to in the above passage were orders made by the Federal Magistrates Court on 29 May 2006 and 25 September 2006 respectively. The orders made on 29 May 2006 were interim orders made by consent and until final order. The orders made on 25 September 2006 were final orders. The orders deal with the relationship between Jedi and each of his parents, namely, the applicant and Ms Fraser. The orders are set out below [32]-[33]. 26 The Tribunal member then referred to the evidence of Mr Tuddenham and the evidence of Mr Courtney. In relation to the evidence of Mr Tuddenham, he said that Mr Tuddenham did not bring any formal qualification to the hearing of the matter and he concluded that his views did not greatly assist him. In relation to Mr Courtney, he found him to be "a most unimpressive witness".


case_text: Martech submitted that the discretion to award costs is guided by the principle that, absent some special circumstance, a successful litigant is entitled to its costs. It acknowledged that where a litigant has succeeded on some issues but failed on others, an apportionment may be appropriate. That is a matter for discretion for the trial judge. It was submitted that the Court's power to order a successful applicant to pay the costs of an issue on which it has failed ought to be exercised only where the Court, on a consideration of all the circumstances, has concluded that the raising of that issue by the applicant was so unreasonable that it is fair and just to make the order. Reliance was placed upon Mok v Minister for Immigration (No 2) (1993) 47 FCR 81 at 84D. 7 Martech submitted that while the pleadings in its claim raised a number of causes of action there were two broad issues pursued by it. These were: 1. The forbearance affecting the level of remuneration. 2. The termination payment. Martech submitted that it was wholly successful in relation to the forbearance but acknowledged that it was unsuccessful in relation to the termination payment. The latter claim failed essentially on the proper construction of cl 8.6 of the consultancy agreement. Energy put in issue whether the consultancy agreement was terminated on 29 September 2000 and a significant amount of evidence was directed to that point. On that point, Martech succeeded. The forbearance issue was also one to which significant evidence was directed. There were other issues of fact on which Martech did not succeed. Martech submitted that it should have one third of its costs. It also pointed out that the first cross-claim was discontinued by leave on 20 September 2005 with costs reserved and that there was no reason why the respondent should not pay its costs of the first cross-claim.


case_text: On the matter of interest on the judgment sum, Martech submitted that interest was usually ordered for the period between the cause of action arising and judgment. It correctly pointed out that the usual practice is to award interest at the rate applied in the Supreme Court of the State where the court is sitting unless there is evidence that those rates are penal and not commercial: Namol Pty Ltd v AW Baulderston Pty Ltd (1993) 119 ALR 187; GEC Marconi Assistance Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55. Martech submitted that the cause of action arose in respect of the judgment sum on 10 December 2001 when Mr Brand first wrote to Energy advising that Martech's forbearance had ceased. Alternatively it was put that interest should run from 6 November 2003 when a further demand was made by Martech and, alternatively, 24 March 2004 when the application was commenced. A calculation of the judgment sum with interest applied from those three dates was appended to the submission.


case_title: GEC Marconi Assistance Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55


case_text: Energy submitted in response that Martech was unsuccessful in seven of the eight causes of action and claims. It did not obtain the principal commercial objective of the proceedings, which was the termination payment in excess of $800,000. It referred to New South Wales Dairy Corporation v Murray Goulbourn Co-operative Co Ltd (1989) 14 IPR 75 at 79. 10 Energy argued that the claim for unpaid fees was a distinct and separate cause of action for an amount well within the jurisdiction of the District Court of Western Australia. Had the claim been brought separately it may well have been settled commercially between the parties. It submitted that the costs should follow the event and the respondent should be entitled to the costs of the proceedings. In the alternative Martech should be ordered to pay costs in respect of the unsuccessful aspects of its case. An appropriate apportionment would be that Martech pay 90% of Energy's costs of the action. 11 Energy argued that the claim for unpaid fees occupied a relatively small amount of time at trial, both in terms of evidence and submissions. Martech adopted a "shotgun" approach to its claims for a termination payment, none of which succeeded. The claim based on implied terms required the Court to consider extensive evidence including expert evidence about allegations of non-disclosure and breaches of the Corporations Act 2001 (Cth). These proved to be false issues as Martech did not establish the implied terms. In addition it did not succeed in establishing the claim for unpaid fees as pleaded. The Court held that Martech was entitled to the unpaid fees as there was no consideration for the variation pleaded by Energy. The issue of lack of consideration or uncertainty was not pleaded in reply, nor was it put in closing submissions.


case_text: The "jurisdiction" conferred upon the Court by s 43 is in truth a power in aid of jurisdiction. It is not confined by any presumption about the manner of its exercise. Nevertheless, within the discretion of the courts to award costs in Australia, it has long been accepted that: . ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; . where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; . a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235, following Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748.


case_title: Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748


case_outcome: distinguished

case_text: In written submissions, the appellant argued that this reasoning showed that the Tribunal failed to understand and properly apply s 91R(1)(a) and (2) of the Act , because it did not address whether belonging to the relevant social group led to persecution (within the Act ), but instead assessed another social group (sexually overt people of any persuasion) that was not before the Tribunal. Put another way, the appellant submitted that the Tribunal failed to consider whether he would be persecuted because of his imputed membership of the social group that was the subject of his claim. If the Court accepted this submission, it would establish relevant error: see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 (" S395/2002 ") at 486 [31] per McHugh and Kirby JJ. 19 The appellant also maintained that the same passage showed a second error, because, as their Honours said in S395/2002 at 491 [46], in considering the very same law, "the Tribunal was obliged to go on to consider the other implications of the existence of the law in respect of possible persecution". He submitted that the Tribunal failed to do so. The appellant also contended that his Honour not only erred in failing to appreciate this but also "by finding that the Tribunal found that the appellant could live in Bangladesh 'without being imputed with homosexuality'". The appellant argued that the Tribunal made no such finding and merely found that "persecution on that ground would not constitute persecution for a Convention reason based on the flawed reasoning" to which he referred. The appellant augmented these arguments at the hearing. 20 Following these submissions, the appellant was granted leave to file an amended notice of appeal, which included two further grounds. They read as follows: 4. His Honour erred in finding that the Tribunal's decision was not affected by jurisdictional error in that the Tribunal failed to consider the applicant's claims to fear persecution because of his likely imputed membership of a Particular Social Group being gay men in Bangladesh. 5. His Honour erred in finding that the Tribunal's decision was not affected by jurisdictional error in that the Tribunal failed to consider whether gay men (imputed or actual) as a Particular Social Group were the subject of persecution in Bangladesh for the purposes of the Convention as modified by the Act . 21 It suffices to say that the first respondent contended that none of the grounds of appeal were made out. 32 This case is different from S395/2002 , because in this case the Tribunal found that: (1) the appellant was not in fact homosexual; (2) the appellant had fabricated his claim to be homosexual in order to support his protection visa application; (3) although a homosexual demeanour might be attributed to him in Australia (on account of his activities here) it was unlikely that these activities or subsequent activities in Bangladesh would result in a homosexual demeanour being attributed to him in Bangladesh; and (4) even if such a demeanour were attributed to him, he would not be subjected to serious harm amounting to persecution for a Convention reason. In contrast to S395/2002 , this is not a case where the Tribunal made a decision adverse to an applicant upon the basis that he could avoid persecution by modifying his customary behaviour.


case_text: As already noted, the Tribunal referred to the fact that the appellant applied for a protection visa on 31 May 2005, which was over three years after his arrival in Australia. I reject the assertion implicit in ground 1 of the appellant's notice of appeal that the Federal Magistrate erred in holding that it was not irrational or unreasonable for the Tribunal to give weight to the consideration that the applicant made no claim to fear persecution in Bangladesh as a homosexual prior to May 2005. The appellant's delay in lodging a protection visa application was one factor that the Tribunal was entitled to take into account and to give such weight as the Tribunal thought appropriate in all the circumstances of the case. The Federal Magistrate did not err in this regard. Further, the Federal Magistrate did not err in his consideration of the Tribunal's treatment of the opinions of the psychiatrists and psychologist, or other lay witnesses. The Tribunal plainly considered both expert and lay witnesses' evidence and it was entitled to treat their evidence as it did. The Tribunal was not obliged to accept the evidence of expert opinion but was entitled to evaluate it as it did. The Tribunal specifically referred to earlier lay witnesses who claimed to have had sexual relations with the appellant, saying it did not "attach any weight" to their evidence because it found that the appellant had manufactured his claims to be a homosexual. It was open to the Tribunal to approach their evidence in this way. The appellant submitted that this approach was illogical, but illogicality on its own, even if demonstrated, does not establish jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003)198 ALR 59 (" Applicant S20/2002 ") at 60-64 per Gleeson CJ. The appellant's argument at this level was very largely "an emphatic way of expressing disagreement" (to use the words of Gleeson CJ) with the Tribunal's fact finding: see Applicant S20/2002 at 61.


case_text: This ground alleged that the Federal Magistrate erred in dismissing the ground of jurisdictional error because, in making its finding about relocation, the Tribunal failed to consider a number of matters relating, broadly speaking, to the practicalities of relocation. The ground is not made out. The Tribunal applied the relocation test, as set out in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 237 ALR 660. It inquired as to whether it was reasonable, in the sense of practicable, for the appellant to relocate, given the circumstances of his case, including his personal circumstances relating to education, language ability, family situation and work prospects.


case_title: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 237 ALR 660


case_text: Once the Tribunal's actual findings are set out in this way, it is plain enough that grounds 4 and 5 fail. The Tribunal plainly rejected the appellant's claim to be homosexual. At the same time, it allowed for the possibility that a homosexual demeanour might be attributed to him in Australia on account of his involvement in the CAAH and his association with homosexuals in Australia. It held, however, that it was unlikely that his involvement in CAAH or his association with homosexuals in Australia would result in a homosexual demeanour being attributed to him in Bangladesh. It also held that it was unlikely that he would continue activities of this kind on returning to Bangladesh (since they were done in Australia to enhance his refugee claim). Notwithstanding this, however, in accordance with Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 (" Rajalingam ") at 62-63, the Tribunal went on to consider the appellant's situation in what it saw as the unlikely event that this attribution or imputation was made in Bangladesh. In this regard, the Tribunal was not satisfied that the appellant would "be subject to serious harm amounting to persecution". 28 If the passage set out at [17] above is understood in this way, it is apparent that no error of the kind for which the appellant contends has occurred. That is, in the Tribunal's reasons, the passage can be read as intended to support the proposition that there is no real chance of serious harm befalling a person in Bangladesh on account of overt (and a fortiori covert) homosexual behaviour. 29 Another passage towards the conclusion of the Tribunal's reasons, on which the appellant relied, must also be read in the light of the findings and in the entirety of the Tribunal's reasons. In this passage, the Tribunal referred first to the provision of country information by the appellant's adviser and to her submission about a lack of state protection. It then commented: While accepting that Bangladesh is at the moment experiencing severe political disruption and turmoil, and there is some politically orientated violence, the Tribunal has not been able to find any evidence that homosexual males, and even more importantly than [sic] those people like the Applicant who may have a gay demeanour or association imputed to them, are being subject to a particular persecution or are being targeted at this time because of it or that there has been a breakdown in effective state protection for this particular social group. Accordingly, in view of all the above and its earlier findings, the Tribunal does not accept this claim and is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason (including his particular social group, actual or imputed) because of the current political difficulties in Bangladesh. 30 The appellant argued that the expression "like the Applicant" indicated that the Tribunal made a positive finding concerning the imputation of a homosexual demeanour to the appellant in Bangladesh. When this passage is read in the context of the Tribunal's entire reasons, as indeed the Tribunal expressly invited the reader to do, it is clear that this is not so. In this passage, the Tribunal was doing no more than responding to the appellant's adviser's submission concerning effective state protection upon the basis required by Rajalingam. That is, it was considering the appellant's position in what it saw as the unlikely event that an imputation of homosexuality was made in Bangladesh. In this regard, the Tribunal was not satisfied that there was a real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason. 31 When the Tribunal's actual findings are stated, it is apparent that the Tribunal gave consideration to the appellant's claims to fear persecution because of "his ... imputed membership of a Particular Social Group being gay men in Bangladesh" (compare ground 4), although it considered the imputation in Bangladesh to be unlikely. In this latter regard, ground 4 misstates the Tribunal's finding. The Tribunal gave this question consideration in accordance with its obligation as outlined in Rajalingam . Ground 4 is therefore not sustainable. Similarly and on the same basis, the Tribunal gave attention to the question "whether gay men (imputed or actual) as a Particular Social Group were the subject of persecution in Bangladesh for the purposes of the Convention as modified by the Act ". Ground 5 also fails. Examination of the Tribunal's reasons and the appellant's submissions shows that the appellant's real argument is with the merits of the Tribunal's decision. This is not, however, a matter that properly falls for consideration in the Federal Magistrates Court on judicial review or in this Court on appeal.


case_text: Thus far, I have not found it necessary to refer to the guiding principle, that the reasons of the Tribunal are to be read fairly and as a whole, and not "with an eye attuned to the ready perception of error": see in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [14] per Moore, Mansfield and Dowsett JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. This principle confirms that the Tribunal's reason should be read in their entirety, without undue emphasis on individual expressions that, by themselves, can take on a meaning different from that clearly intended when regard is had to their proper context. The appellant's argument, it seems to me, paid insufficient regard to this principle.


case_title: Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: Alterskye v Scott [1948] 1 All ER 469

case_text: Early cases, such as Richardson v Hastings (1884) 7 Beav 354 and Reynolds v Godlee (1858) 4 K & J 88, state that discovery may be refused unless the party gives an undertaking that the documents would not be used for any purpose other than the action then proceeding. The principle was stated in Bray on Discovery (1 st ed, 1885) at 238: "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order ...". An express undertaking is not now required. It is to be implied in every case: Alterskye v Scott [1948] 1 All ER 469. The modern statement of the rule is to be found in Harman v Secretary of State, Home Department [1983] 1 AC 280.