case_text: The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91 , Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): ...where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.


case_outcome: cited

case_title: Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351


case_text: In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 ( Gudjala People ), in the context of an examination of the Registrar's duty under the Act, Dowsett J commented (at [14]): Sub-section 190A(1) required the Delegate to consider the Application. In effect he had to decide whether to accept it for registration pursuant to s 190. Sub-section 190A(5A) provides: Before the [NT] Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules . 34 In my opinion, Item 90(2) similarly imposes upon the Registrar (or his delegate) a requirement to examine any claim satisfying the conditions of Item 90(1) against the requirements of ss 190, 190A, 190B, and 190C in order to decide whether it should be on the Register. 35 On this ground, the applicants argue that, even if the Registrar was required to apply the registration test to the applicants' claim, he was not empowered to remove the claim from the Register other than in circumstances as provided for in s 190 of the Act. The applicants submit that the only power of the Registrar to remove claims from the Register is contained in s 190(4) of the Act, which provides: Entries removed or amended after determination, decision or withdrawal (4) If: (a) the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or (b) the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or (c) the Registrar is notified that an application that contained a claim has been withdrawn; the Registrar must, as soon as practicable: (d) if the application in question has been withdrawn, dismissed or otherwise finalised--remove the entry on the Register that relates to the claim; or (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact; or (e) in any other case--amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised. 54 In Gudjala People (supra), Dowsett J considered the procedural fairness requirements imposed upon the Registrar in considering an application under s 190A in the normal course of events; that is, where a normal application had been made to the Registrar to have an application entered on the Register. In that case, the Registrar's delegate had advised the applicant of some, but not all, deficiencies in its application. The applicant argued that this breached the rules of procedural fairness. His Honour said (at [21]): In advising the applicant of the shortcomings in the Application, the Delegate was presumably exercising the power conferred by subs 190A(5A). However, he was not obliged to do so. To extend to the applicant an opportunity to re-formulate the claim before deciding whether or not to accept it for registration was a desirable, but not necessary, course. Even if the Delegate had not advised the applicant of all matters causing concern, that would not have led me to conclude that he was bound to proceed upon the basis that matters not addressed should necessarily be resolved in ways which were favourable to the applicant. The applicant was warned that it must satisfy the requirements of the Act. The Delegate directed attention to his major areas of concern. There is nothing in this point. 55 However, it must also be noted that the matter presently before the Court has a different historical context from that in Gudjala People . Aside from the additional requirements imposed on the Registrar by Item 90, it is important to note that the applicants' claim was already entered onto the Register, thereby conferring upon the applicants the various rights that come with registration. The applicants have enjoyed those rights for some 11 years. That context informs the requirement in Item 90(4)(c) for the Registrar to advise the applicant that he is considering the claim, and to provide the applicant with a "reasonable opportunity" to provide any further information or other things to the Registrar in his consideration of the claim. 56 The correspondence between the delegate and the applicants relevant to this issue is set out at [6]-[11] above. The relevant chronology is as follows: • The Registrar wrote to the applicants on 24 April 2007 informing them that their claim was to be considered against the registration test; why it was to be considered; that they could provide further information; how their claim could be amended; and that the Registrar wished to undertake the test as soon as possible due to its age. • The case manager wrote to the applicants on 14 May to tell them that the claim would be tested in September 2007, and that any amendments or additional information needed to be filed by 17 August 2007. • The case manager wrote a reminder letter to the applicants on 7 August 2007, noting that the claim was still to be tested by 30 September 2007, and that information had to be filed by 17 August 2007. • The applicants wrote an email to the case manager on 17 August 2007 requesting an extension of time to amend the claim and provide further information. • The delegate refused to change the time for the testing of the claim, but gave the applicants until 24 August 2007 to provide further information. This was communicated to the applicants on 20 August 2007. 57 The applicants' arguments rest in large part upon the fact that they were, at the time, not legally represented. This was the case until after the delegate made the decision on the extension of time, and, the applicants argue, should have been apparent. The applicants argue that, without such representation, they did not know what amendments might have to be made to the application if it was to pass the registration test, and were therefore reliant on assistance from the National Native Title Tribunal. 63 It is worthwhile noting that the applicants have not claimed as a ground of their application that the delegate failed to take into account relevant considerations in making the decision. Dowsett J in Gudjala People commented on an application which confused errors in the decision-making process and breaches of procedural fairness, observing that (at [13]) "errors alone will not generally amount to a denial of procedural fairness." In this instance, supposedly relevant considerations may have some bearing on the question of procedural fairness, but only to the extent that they inform the "circumstances of the case". 64 The question for the Court on this occasion is therefore whether the delegate "acted fairly" and gave the applicants a "reasonable opportunity" to amend their application and provide further materials to the Registrar. In considering this question, I do not agree with the contention of the applicants that the obligation upon the Registrar to consider claims for registration within a year has any application. It seems to me that, by imposing upon the Registrar a nominal deadline of one year within which to consider claims, Item 90(2) clearly aims to have claims for registration tested and decisions made as quickly as the resources of the Tribunal, the applicants and relevant representative bodies will allow. It follows that that time period is not, in my opinion, relevant to any consideration of whether an applicant has been given a reasonable opportunity to submit materials to the Registrar. 65 The Registrar first put the applicants on notice of the fact their claim would be tested on 24 April 2007. That letter informed the applicants that they would have the opportunity to amend their claim, however it was not clear from the letter the kind or extent of changes that would need to be made, or the time frame within which the changes would have to be made.


case_title: Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171


case_outcome: followed

case_text: The circumstances which give rise to the duty of procedural fairness were set out by Mason J (as he then was) in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 49 His Honour went on to note that (at 584-585): Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute ... the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.


case_title: McGibbon v Linkenbagh (1996) 41 ALD 219

case_text: Kiefel J, then of the Federal Court, considered the same question with regard to the refusal of a disciplinary review committee to grant an adjournment to the applicant in McGibbon v Linkenbagh (1996) 41 ALD 219. Her Honour stated (at 224) that the committee's refusal was ...not a "decision" of which s 3(1) and s 5(1) AD(JR) Act speaks, since it is neither final nor determinative of a substantive matter. Although one is tempted to conclude that in a sense it has some operative effect and carries with it findings adverse to Mr McGibbon, it is to be seen as merely procedural and intermediate and as such is to be viewed as conduct engaged in as a step towards and for the purpose of the later "decision". 18 In my view, the decision in the present case made on 20 August 2007 regarding an extension of time falls into the same category. The granting of an extension was not required by or provided for under the Act, nor was it a final determination of a substantive matter. Rather, it appears to be a procedural and intermediate step. In my opinion, the conduct of the delegate would not be reviewable under s 5, but might be reviewable under s 6 of the ADJR Act. However, as the submissions on behalf of the Attorney-General acknowledge, the decision of 28 September is within the scope of s 5; the grounds of review relied upon by the applicants are the same in relation to both decisions; and the remedies sought by the applicants relate to the 28 September decision. It is therefore sufficient for the present proceedings that the court has jurisdiction to review the 28 September decision. It is not necessary to express a concluded view on the character of the 20 August decision. 19 I also note, however, that the application filed by the applicants was filed outside of the 28 day time period within which an applicant may lodge an application for review (s 11(3) of the ADJR Act). In such circumstances, the Court has a discretion, pursuant to s 11(1)(c) of the ADJR Act, to allow an application to be lodged "within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows." 20 The applicants submit that the application should be allowed to be heard, notwithstanding that it was filed outside of the prescribed period, on the basis that the applicant was not legally represented at the time of the delegate's decision and the application was filed only a very short time (some 10 days) after the end of the prescribed period. 21 On behalf of the Attorney-General, it was submitted that the Court, in the exercise of its discretion to allow further time pursuant to s 11(1)(c) of the ADJR Act, may take into account that the applicants had available to them "another more specific avenue for review by this Court, under s 190D" of the Act as it stood immediately before the commencement of the Native Title Amendment (Technical Amendments) Act 2007 (Cth). Section 190D(2) of the Act, before those amendments, provided that if the Registrar did not accept a claim for registration, the applicant could apply to the Federal Court for a review of the Registrar's decision. Such an application for review under s 190D(2) of the Act could have been made by the applicants within 42 days of the notification of the Registrar's decision: O 78 r 12(ii) of the Federal Court Rules .


case_title: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77


case_text: The importance of the construction of the relevant statutory scheme has recently been reiterated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592. There, the Court stated that (at 598): It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. 51 In the context of this matter, it is s 190A of the Act and Item 90 of Sch 2 to the Amending Act to which the Court must have particular regard. Section 190A(3) of the Act sets out the material to which the Registrar must have regard when considering a claim under s 190A. That section provides: (3) In considering a claim under this section, the Registrar must have regard to: (a) information contained in the application and in any other documents provided by the applicant; and (b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and (c) to the extent that it is reasonably practicable to do so in the circumstances--any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim; and may have regard to such other information as he or she considers appropriate. 52 Section 190A(5A) allows, but does not require, the Registrar, before he or she has decided whether or not to accept the claim for registration, to notify an applicant that the application may be amended under the Federal Court Rules .


case_outcome: discussed

case_text: In her oral submissions, Ms Bowskill drew particular attention to the duties imposed on the Registrar by the Act with respect to the establishment and maintenance of the Register. Those duties were considered by Justice Kiefel in Wakaman People v Native Title Registrar [2006] FCA 1251 at [8] : The Register is a public document, to be available for inspection (s 187(1)). The provisions of the NTA concerning its maintenance suggest that it is intended to reflect the current state of affairs with respect to claims. Section 186(1)(ca) requires the date upon which the claim is entered on the Register to be included in it. The Registrar is required 'as soon as practicable' to include in the Register details of any claim accepted for registration under s 190A (s 190(1)(a)) and must likewise amend the Register where there is an amended application which complies with the Act's requirements and remove any entry relating to the claim where it does not: s 190(2) and (3). The Registrar must also take prompt action to remove entries where a claim has been withdrawn, dismissed or finalised: s 190(4). The need for the Register to reflect the current state of claims is confirmed by the Explanatory Memorandum to the Native Title Amendment Act 1998 (in connexion with s 190(2)). 40 Paragraph 29.2 of the Explanatory Memorandum noted by her Honour states: ... the purpose of the registration test is to ensure that only claims which have merit are registered in the Register of Native Title Claims. 41 It is clear from the above that Pt 7 of the Act imposes particular duties upon the Registrar to maintain the Register, to keep it up to date, and to ensure that the only entries on the Register are those which have met the requirements of the statute. Prior to the Amending Act, the applicants' claim fell into that category. The effect of Item 90 of Sch 2 to the Amending Act was to require the applicants' claim to meet the criteria in the registration test if it was still to meet the requirements of the Act. In my judgment, if the Registrar decided that the applicants' claim did not so meet the Act's criteria, then he was under an obligation to update the Register accordingly. There is no express power in the Registrar to remove a claim under those circumstances, but such power exists, in my judgment, by necessary implication.


case_text: The particular jurisdictional basis upon which the applicants' claim was made is not articulated in the application for review, although it has been addressed by both the applicants and the Attorney-General in their respective submissions. The applicant submits that both decisions of the delegate were decisions "of an administrative character" made "under an enactment" such as to bring them within the scope of s 5 of the ADJR Act. In addition and in the alternative, the applicant submits (relying upon Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title Registrar [1995] FCA 1484) that s 39B of the Judiciary Act 1903 (Cth) could confer jurisdiction on the Court, as the Registrar is an officer of the Commonwealth, and it is within the original jurisdiction of the Court to review the decisions of such officers. 15 The Attorney-General does not dispute that the decision of the delegate made on 28 September 2007 in relation to the claim for registration falls within the scope of the ADJR Act. However, the Attorney-General submits that the earlier decision of the delegate, made on 20 August 2007 in relation to the extension of time, was not of an administrative character, nor was it made "under an enactment".


case_title: Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344

case_text: Mr Rana's claim for loss of reputation and face, including humiliation and embarrassment, fails because, as I have said, I am satisfied that the conversation between Mr Rana and Ms McIver was a measured and relatively quiet one; that no one else was present during the conversation and certainly not any family or friends of Mr Rana, and that Mr Rana left the Convention Centre quietly and without an escort. He was not escorted out of the Convention Centre by security guards or police officers or, indeed, by anyone. Furthermore, Mr Rana was not emotionally distressed or, at least, not openly so. In fact, he had the presence of mind to calmly tell Ms McIver during his conversation with her that he would be suing the University. Mr Rana referred to the decision in Baltic Shipping Co v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, but there is no evidence of disappointment or emotional distress, even if it was otherwise an appropriate case for such an award. 52 The University admits that it is a corporation within s 52 of the Act . Furthermore, the University did not argue that its conduct on 27 March 2006 was not in trade or commerce. 53 The first question is whether any conduct of the University on 27 March 2006 was misleading or deceptive. As I understood Mr Rana's case, the conduct which he alleged was misleading or deceptive was the insertion of the advertisement in The Australian newspaper and the statements made by Ms Ellmers during her conversation with Mr Rana on the telephone. The contents of the advertisement are clear, and I have accepted Ms Ellmers' account of her conversation with Mr Rana as the correct one.


case_outcome: distinguished

case_text: This case is distinguishable from Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256 and the reward cases such as Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C & P 566; 172 ER 1101; see also R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227. In this case, having regard to the form and content of the advertisement, the reference to booking and the nature of the event, it cannot be said that there was an offer capable of acceptance merely by going to the Convention Centre and offering to purchase a ticket. In my opinion, the decision in Denton v Great Northern Railway Co (1856) 5 E & B 860; 119 ER 701 is distinguishable on the ground that the nature of a railway timetable is quite different from the advertisement in this case. Furthermore, it is commonly understood that the circumstances in which a train cannot carry a passenger are far more limited than the circumstances in which a member of the public is denied entry to an event such as that involved in this case. In any event, I prefer the reasoning of Crompton J in Denton v Great Northern Railway (supra) who doubted that the defendant was answerable in contract (5 E and B 867-870; ER 704-705).


case_text: In my opinion, neither the advertisement nor Ms Ellmers' statements during her telephone conversation with Mr Rana contained or gave rise to an implied statement or representation as to the right of a member of the public to attend the hypothetical. In saying that, I am directing my attention to the period prior to the purchase of a ticket. On purchase of a ticket there will be contractual rights and obligations between the parties. It is well established that even when a ticket is purchased, the right of a ticketholder, should there be a breach, is reflected in a claim for damages rather than a right to enter or stay on land ( Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17 ; (1937) 56 CLR 605). In any event, in relation to the period prior to the purchase of a ticket, the advertisement or statements of Ms Ellmers do not contain or give rise to an implied statement or representation as to the right of a member of the public to attend the hypothetical. Clearly, there cannot be any implied statement or representation that there is an unqualified right because there might be any number of reasons why the organiser of an event might justifiably deny a person a ticket or entry to the event, ranging from the cancellation of the event or a full auditorium on the one hand, to disruptive conduct or inappropriate dress by the proposed attendee on the other. No reasonable reader of the advertisement or party to the conversation with Ms Ellmers would understand that, prior to the purchase of a ticket, any member of the public had an unqualified right to attend the hypothetical. To my mind, it is not possible to conclude that there is an implied statement or representation as to a right of a more limited nature, for example, a right to enter subject to a good reason to exclude, because there would simply be no unanimity, or even a majority view, as to the particular circumstances which would justify the exclusion of a member of the public. 58 Even if I am wrong in reaching the conclusions set out above and the University has contravened s 52 of the Act , Mr Rana's claim for damages under s 82 must fail because he has not proved any loss or damage within the provisions of that section. I need do no more than refer to my conclusions as to loss and damage in the context of Mr Rana's claim for breach of contract ([46]-[50]). 59 Mr Rana's claim for damages for an alleged contravention of s 52 of the Act fails.


case_title: Denton v Great Northern Railway Co (1856) 5 E & B 860; 119 ER 701


case_title: Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C & P 566; 172 ER 1101


case_outcome: applied

case_text: In Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 211, after referring to ss 175 and 177 and to the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 at 615, Deane and Gaudron JJ said: "That approach should, in our view, be applied to the construction of s 175 of the Act. The result of its application is that s 175's protection from invalidity is applicable only if the purported 'assessment' (i) is 'a bona fide attempt' by the Commissioner or other authorised officer to exercise powers conferred by the Act , (ii) 'relates to the subject matter' of the Act and (iii) 'is reasonably capable of reference to' those powers. If a purported 'assessment' does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported 'assessment' will be invalid."


case_text: In Briglia v Federal Commissioner of Taxation (2000) 2000 ATC 4,247 at [9], Kenny J said: "It follows [from Richard Walter] that uncertainty on the Deputy Commissioner's part as to the facts relevant to the exercise of his power of assessment does not evidence an absence of bona fides in the Hickman sense. ... If, however, the Deputy Commissioner formed the view that there was no substantial possibility that an amount was part of the assessable income of a taxpayer, then the Commissioner could not bona fide assess that taxpayer as liable to tax in respect of that income." 24 The foregoing description of the audit process shows that once apprised by the Police of the applicant's arrest with $620,000 cash in his possession, the Commissioner proceeded in a methodical way to collect information about the applicant's financial affairs in order to determine whether any amounts should be included in his taxable income. As it turned out, two items were wrongly included in that income in the 2002 year. As I have said, the applicant successfully objected to that inclusion. But the fact that the Commissioner later accepted that he had erred in including these amounts does not establish that the assessment that contained them was not a bona fide attempt to assess the applicant's income. The applicant has not persuaded me that the Commissioner knew there was no substantial possibility that the amount he assessed was part of his assessable income. See the passage from Briglia set out at [12]. It may well be that the Commissioner was uncertain as to whether all the amounts he in fact included were truly income of the applicant, but that uncertainty does not show the absence of a bona fide attempt, as is pointed out in Futuris Corporation Ltd v Federal Commissioner of Taxation [2007] ATC 4600 at [44]. 37 Other cases that have found a lack of a bona fide attempt are in marked contrast to the present. In Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175 at 188 the Full Court said: "Not only did the Commissioner not make any genuine attempt to ascertain the sale value of particular goods under each of the relevant Assessment Acts, but he also determined a sale value and purported to create a liability for sales tax upon facts which he knew were wrong. ... An assessment on facts known by the Commissioner to be untrue is of its nature unfair and oppressive." In the present case the Commissioner did not act upon any facts which he knew to be wrong. It is true that he did not know all the facts but, doing the best he could on the facts he did know, he made assessments. That they did not wholly survive review by the Tribunal does not establish the lack of a bona fide attempt: Madden at 396 and Briglia at [9].


case_text: The foregoing description of the audit process shows that once apprised by the Police of the applicant's arrest with $620,000 cash in his possession, the Commissioner proceeded in a methodical way to collect information about the applicant's financial affairs in order to determine whether any amounts should be included in his taxable income. As it turned out, two items were wrongly included in that income in the 2002 year. As I have said, the applicant successfully objected to that inclusion. But the fact that the Commissioner later accepted that he had erred in including these amounts does not establish that the assessment that contained them was not a bona fide attempt to assess the applicant's income. The applicant has not persuaded me that the Commissioner knew there was no substantial possibility that the amount he assessed was part of his assessable income. See the passage from Briglia set out at [12]. It may well be that the Commissioner was uncertain as to whether all the amounts he in fact included were truly income of the applicant, but that uncertainty does not show the absence of a bona fide attempt, as is pointed out in Futuris Corporation Ltd v Federal Commissioner of Taxation [2007] ATC 4600 at [44]. 38 Futuris is also distinguishable. There the Commissioner knew, at the time he issued the assessment, that the taxpayer's taxable income could be no greater than $169 million, yet he issued it for a taxable income of $188 million.


case_title: Uysal v Deputy Commissioner of Taxation (2003) 54 ATR 214


case_outcome: considered

case_title: Madden v Madden (1996) 65 FCR 354

case_text: That the Commissioner's use of the garnishee process to prevent the return of the money to the applicant does not demonstrate the absence of a bona fide attempt is supported by the Full Court's decision in Madden v Madden (1996) 65 FCR 354. In that case the taxpayer was arrested and charged with conspiracy to supply heroin. Thereupon the Commissioner assessed him to income tax on the sale value of the heroin. The sale value had been notified to the Commissioner by the police. The taxpayer's application to have the assessment set aside on the ground that it was not made bona fide was dismissed. Foster J, with whom Sheppard J agreed, said at 395: "The only significant question, in my view, is whether it could be argued that he made no assessment at all, in that he acted in bad faith and for the ulterior purpose of using his powers under s 218 of the Tax Act to require payment to him of the amount of money held by the police." (I interpolate that s 218 is the predecessor of s 260-5). Foster J continued: "The material adduced shows that the Commissioner was minded to take possession of this money in circumstances of urgency in that, if swift action were not taken, the money would pass from the possession of the police and would, in all probability, become irrecoverable. It may be said, then, that evidence has been adduced showing that the Commissioner was motivated, in raising the assessment, by a desire to take possession of the money. ... As I see it, the appellant's contention amounts really to this. He alleges that the assessment was invalid because it was issued by the Commissioner in abuse of his power to assess under s 167, in that it was not a bona fide attempt to assess the amount upon which tax should be levied but was a mere device to enable the issue of the s 218 notice .... In the first place, I am unable to attribute any significance to the fact that the assessment was issued in conjunction with and motivated by a desire to take advantage of s 218. There is sufficient indication of urgency in the situation to warrant the steps that were taken. In my opinion, the s 218 connection is a purely neutral fact in the determination of whether the assessment itself was invalid." 37 Other cases that have found a lack of a bona fide attempt are in marked contrast to the present. In Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175 at 188 the Full Court said: "Not only did the Commissioner not make any genuine attempt to ascertain the sale value of particular goods under each of the relevant Assessment Acts, but he also determined a sale value and purported to create a liability for sales tax upon facts which he knew were wrong. ... An assessment on facts known by the Commissioner to be untrue is of its nature unfair and oppressive." In the present case the Commissioner did not act upon any facts which he knew to be wrong. It is true that he did not know all the facts but, doing the best he could on the facts he did know, he made assessments. That they did not wholly survive review by the Tribunal does not establish the lack of a bona fide attempt: Madden at 396 and Briglia at [9].


case_text: Other cases that have found a lack of a bona fide attempt are in marked contrast to the present. In Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175 at 188 the Full Court said: "Not only did the Commissioner not make any genuine attempt to ascertain the sale value of particular goods under each of the relevant Assessment Acts, but he also determined a sale value and purported to create a liability for sales tax upon facts which he knew were wrong. ... An assessment on facts known by the Commissioner to be untrue is of its nature unfair and oppressive." In the present case the Commissioner did not act upon any facts which he knew to be wrong. It is true that he did not know all the facts but, doing the best he could on the facts he did know, he made assessments. That they did not wholly survive review by the Tribunal does not establish the lack of a bona fide attempt: Madden at 396 and Briglia at [9].


case_title: R v Deputy Commissioner of Taxation (WA); Ex parte Briggs (1986) 12 FCR 301

case_text: His Honour went on at 396 to say that the Commissioner had available to him positive information as to the value of the heroin dealing undertaken by the taxpayer in the relevant income year. It was a substantial sum, and was adequate to provide a foundation for a default assessment in the circumstance in which the assessment needed to be issued. He concluded that conformably with the principles in R v Deputy Commissioner of Taxation (WA); Ex parte Briggs (1987) 14 FCR 249, the Commissioner was entitled to use the figure provided as a basis for the assessment. It "could well be erroneous, but it was nevertheless bona fide". 36 I do not attribute any significance to the sending of the garnishee notice to the applicant's former address. I do not accept the applicant's contention that the person who sent the copy notice to the wrong address did so in order that the applicant would not know it had been served on the Police. Mr Saunders, who knew of the changed address, was on leave at the crucial time, and the officer who acted in his absence was probably unaware of the change.


case_text: The applicant submitted that the issues in the case were within the knowledge of the taxation officers and that their failure to give evidence gave rise to the inference that their evidence would not have assisted the Commissioner. He relied on Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807 at [47] to [51] and Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225-229. This reliance on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 is misplaced. As the Court said in that case at [48]: "the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in the evidence." In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 143 Gleeson CJ and McHugh J approved a passage from the 6 th Australian edition of Cross on Evidence : "The rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." Their Honours went on: "A Jones v Dunkel inference can only make certain evidence more probable. It 'cannot be used to make up any deficiency of evidence': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 per Menzies J." That observation is applicable here.


case_title: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121


case_title: Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807


case_title: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217


case_text: The jurisdiction of this Court to review a decision of the AAT is confined by the terms of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which confines an appeal to 'a question of law'. In Neal v Secretary, Department of Transport (1980) 29 ALR 350 at 354, Franki J stated that: 'There is no appeal to this court on anything other than a question of law and therefore the court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to, but only with the question of whether the Tribunal erred in law.'


case_text: The errors of law alleged are that the AAT took into account irrelevant considerations and that there was no evidence upon which it could reach the conclusion that it did. Mason J in Peko-Wallsend Ltd [1986] HCA 40 ; (1996) 162 CLR 24 at 40 (' Peko ') explained the concept of relevant and irrelevant considerations as it applies to statutory decision-makers as follows: 'In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken in to account in the exercise of that discretion are similarly unconfined, except in so far as there may be some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.' (citations omitted) 10 Contrary to the appellant's contention, there was evidence 'to support the Tribunal's decision that the income derived by the applicant between 4 September 2000 and 3 September 2001 was in the sum of $58,500.00' being the statement of income to that effect made by the appellant on a credit card application dated 5 March 2000. 11 On this point, the AAT said, inter alia: 'Given the lack of information and evidence available to the Tribunal in seeking to calculate the likely income of Mr Trkulja in the period 4 September 2000 to 3 September 2001, it is virtually impossible to do so. Given the history of Mr Trkulja in failing to provide information, failing to maintain financial records, his evasiveness, and, at times, contradictions when under examination and speaking in generalities rather than specifics at the hearing, his evidence cannot be accepted. I am satisfied that his income in the relevant period was in excess of that claimed by him to be income in his statement filed with the trustee and the respondent. On the other hand, I am satisfied that the trustee's assessment, on the basis on which it was calculated, was excessive. I am inclined to agree with the respondent that, if anything, the respondent's assessment was likely to have been low. Nevertheless, the respondent's assessment was based on a signed application for credit by Mr Trkulja, albeit at a time prior to his bankruptcy and the commencement of the contribution assessment period. I acknowledge that, pursuant to s 139X of the Act, the trustee may disregard information provided by the bankrupt and make an assessment on the basis of what the trustee consider to be the correct information where he considers the information provided by the bankrupt is or may be incorrect. However, I do not believe that this empowers the trustee to simply add up the total expenditure of the bankrupt during the period and assume that it represented income. Given the circumstances of this case, I am of the view that the respondent's assessment should be affirmed on the basis that there was little or no change in Mr Trkulja's circumstances between March and May 2000 and September 2001. Consequently, the decision in relation to the income contribution assessment should be affirmed.' 12 It was open to the AAT to determine that there was no relevant change to the appellant's circumstances between the date of the application and the relevant period in so far as those circumstances concerned his income. The weight accorded to the evidence before the AAT was a matter for the AAT. 13 Similarly, the stated income of the appellant on a credit card application could not be said to be an irrelevant consideration as described in Peko ; rather, it would seem to be directly relevant to the very question before the AAT. In reality, the appellant is seeking to re-litigate facts determined by the AAT. It follows that the appellant fails on this ground of appeal. 14 The appellant's second ground of appeal concerns the notice of objection filed by the trustee pursuant to s 149D(1)(d) of the Act, which was upheld by the second respondent and the AAT. Section 149D(1) of the Act relevantly provides: 'The grounds of objection that may be set out in a notice of objection are as follows: ... (d) the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, income or expected income, failed to comply with the request; ...' 15 The appellant alleges that in making its finding on this point, the AAT relied upon hearsay evidence. In affirming the second respondent's decision on this ground of objection, the AAT set out a number of paragraphs from the second respondent's statement of facts and contentions filed in the AAT proceeding. However, prior to setting out these paragraphs, the AAT said: 'The background facts leading to the ground of objection pursuant to s 149(D)(1)(d) of the Act were conveniently summarised in the respondent's statement of facts and contentions. The supporting documentation was provided to the Tribunal.'


case_text: In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286, the Full Court stated: 'The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law'. (citation omitted)


case_text: Minister submits that the concerns that the Tribunal had with the applicant's evidence were put to him. His Honour's conclusion that the Tribunal was frank and open in drawing attention to its concerns about the applicant's claims has not been shown to be in error. His Honour concluded that the ground based on s 424 of the Act was not made out, as there was no invitation for additional information pursuant to s 424. The applicant has not made out any such breach and there is no limitation on the general power under s 424(1) on the part of the Tribunal to obtain additional information ( Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 ; (2009) 258 ALR 434). As to the applicant's assertion of procedural unfairness on the part of the tribunal, in that he said the Tribunal did not give him an opportunity to be heard, his Honour rejected that assertion. I accept the Minister's submission that there was no arguable case before the Federal Magistrate, and that the Federal Magistrates Court was entitled to exercise its discretion to dismiss the application without proceeding to a final hearing. There is not sufficient doubt about the Federal Magistrate's decision to warrant it being reconsidered by this Court. His Honour was entitled to dismiss the matter as he did. The applicant has not described any error in his Honour's decision. In my view, as the case has been presented in this Court, even if his Honour were in error, no substantial injustice would be suffered by the applicant if leave to appeal were refused. It follows that the application for leave to appeal is dismissed. The applicant is to pay the first respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 3 November 2009 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: Ms T Quinn of DLA Phillips Fox Date of Hearing: 3 November 2009 Date of Judgment: 3 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1279.html


case_outcome: affirmed

case_text: is an application for leave to appeal against the judgment of Driver FM of 21 July 2009, SZNOG v Minister for Immigration and Citizenship [2009] FMCA 690 , dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 8 April 2009 and sent to the applicant on 9 April 2009. The Tribunal had affirmed a decision of a delegate of the Minister who formed the view that the applicant was not a person to whom Australia has protection obligations under the Convention and accordingly refused to grant a protection visa on 15 December 2008. The proceedings in the Federal Magistrates Court began with a show cause application filed on 4 May 2009. The dismissal of the application by the Federal Magistrates Court was interlocutory by reason of rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were refused. The applicant is a citizen of India who arrived in Australia on 12 August 2008. He lodged an application for a protection visa with the Department of Immigration and Citizenship on 18 September 2008. The delegate refused the application on 15 December 2008. On 13 January 2009, the applicant applied to the Tribunal for a review of that decision. I will deal with the chronology that followed later in these reasons. In his application for a protection visa, the applicant claimed that he was born in a moderate Muslim family. He claimed that in the wake of the demolition of the Babri Mosque in 1992 and in the wake of the inter-religious riots that followed, his own family's home was set alight. He claimed that his father was an active member of the local Muslim community whose business was ransacked by a Hindu group called the RSS. The applicant claimed that he joined a group called the TMMK and was arrested by the police for attempting to hold a rally to ensure improved employment and living conditions for local Muslims. He claimed that he was interrogated and tortured. He claimed that he was thereafter targeted by police whenever there was a bombing and the Muslims were blamed for everything.


case_outcome: referred to

case_title: Booth v Phillips [2004] 1 WLR 3292

case_text: This approach may be recognised as wider than the operation of Art 5(3) of the Brussels Convention: see Marinari v Lloyds Bank Plc [1996] QB 217 and Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966 at 2973-2974 [23]-[26]. Nevertheless, the English Civil Procedure Rule 6.20(8)(a) which provides for service out of the jurisdiction in respect of "a claim made in tort where (a) the damage was sustained within the jurisdiction" was construed by Nigel Teare QC, sitting (as his Lordship then was) as a deputy High Court judge, in Booth v Phillips [2004] 1 WLR 3292 at 3298-3300 [32]-[44] in a manner informed by, and consistently with, Flaherty v Girgis 4 NSWLR 248. There is a similar rule in the Singapore Civil Procedure Rules (Order 11 rule 1(f)(ii)). The rule appears to be interpreted in a way conformable with the Australian cases and Booth v Phillips [2004] 1 WLR 3292, see Selvam GP, Singapore Civil Procedure 2003 (Thomson) pp 98-99 at [11/1/29]. As to Hong Kong, see Hong Kong Civil Procedure Rules Order 11 rule 1(1)(f) and Chan P, Hong Kong Civil Procedure 2006 pp 113-114 at [11/1/28]. These cognate approaches do not govern the interpretation of Order 8 rule 2 of this Court's Rules. They do reveal, however, that the approach in Australia in the cases to which I have referred and which I have followed are not outside well-known parameters of the exercise of power to serve foreigners outside the jurisdiction.


case_text: It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .


case_title: Challenor v Douglas [1983] 2 NSWLR 405


case_title: Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803


case_title: Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568


case_title: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574


case_title: Flaherty v Girgis (1985) 4 NSWLR 248


case_title: Marinari v Lloyds Bank Plc [1996] QB 217


case_title: Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966


case_title: The 'Pioneer Container' [1994] 2 AC 324

case_text: On the proper construction of Order 8 rule 2, damage was suffered in Australia within the meaning of the rule and the proceeding is one under which an order can be made under Order 8 rule 2 for service in the United Kingdom. The question arises then whether the power should be exercised. The relevant clause of the conditions of contract, if binding, may well be such as to raise a time bar. However, there is no material upon which it can be presently concluded that the relevant terms and conditions governed the relationship between either the defendant and Planetwide or the defendant and the plaintiff. In correspondence, the solicitors for the defendant have raised the issue of the applicability of The 'Pioneer Container' [1994] 2 AC 324. The question of the applicability of this case in circumstances where there is a quasi-bailment (that is when a company in the position of Planetwide does not obtain actual possession) may be debatable. I express no view on that. However, even if The 'Pioneer Container' [1994] 2 AC 324 is potentially applicable, its application would need to be grounded evidentially in the incorporation of the relevant terms as governing the relationship between Planetwide and the defendant in circumstances that would bind the plaintiff. 13 Looking at the statement of claim there appear to be more than ample grounds to come to the view that there was a bailment and some real question as to whether there was due care in the handling of the goods. The time bar may be made out as a matter of defence, but it is not self-evident that such a plea, if or when made, would succeed. 14 The claim is a small one. The plaintiff wishes to bring the matter before the Court. The defendant has not, in the opportunity that has been given to it, provided material which would make clear the basis upon which it contracted with Planetwide. Nor has it made clear the precise basis upon which the plaintiff will be bound by these terms and conditions, beyond an assertion of the applicability of The 'Pioneer Container' [1994] 2 AC 324. 15 Further, the governing law clause, which I have set out above, appears to be limited in its own terms to contracts. I am not clear as to whether the defendant will assert that there was a direct contract between the plaintiff and it or whether it will be said that on its proper construction the clause is wide enough to extend to non-contractual bailment counts supported by cases such as The 'Pioneer Container' [1994] 2 AC 324. On what is before the Court, the governing law clause is not a basis to conclude that leave should not be granted . 16 In all these circumstances, in my view, the plaintiff has made out a case sufficient to warrant service out of the jurisdiction based on Order 8 rule 2 and in particular item 5 of the table in that rule. 17 England is not a Convention country.


case_text: appeal is from a judgment of the Federal Magistrates Court of Australia given on 12 September 2008 and published as MZYBB v Minister for Immigration & Anor [2008] FMCA 1462. The learned federal magistrate dismissed an application to reinstate a proceeding in the Federal Magistrates Court that had been dismissed previously on the basis of the appellant's failure to attend a directions hearing. The original proceeding in the Federal Magistrates Court was an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, refusing to grant to the appellant a protection visa. The appellant is a citizen of Pakistan. He arrived in Australia on 5 February 2007 in possession of a tourist visa, which was granted to him while he was in Brunei. On 16 March 2007, he applied for a protection visa. The decision of the Minister's delegate refusing to grant that visa was made on 28 June 2007. The Tribunal's decision affirming the decision not to grant a protection visa was signed on 1 May 2008 and handed down or sent on 22 May 2008. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two instruments, taken together, the Convention. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: This case is pleaded against Global and In Touch. The ACCC alleges that upon an examination of each of the pleaded franchising agreements, the evidence of the systems and marketing plans adopted, the commercial symbols used and the payments made by the distributors, these agreements constitute franchising agreements within the plain meaning of cl 4 of the Franchising Code (the requirements of cl 4 are cumulative: Agro Holdings Ltd v Flexi-Coil (Australia) Pty Ltd [1999] FCA 1658 at [36] ). The exception was the agreement with Smith as the performance of the agreement was to take place in New Zealand and therefore does not fall within cl 4.


case_text: However, there is a good deal of authority as to the meaning of trade or commerce in other constitutional contexts, particularly in relation to s 92 as it was previously construed (eg, W & A McArthur Ltd v Queensland [1920] HCA 77 ; (1920) 28 CLR 530; Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617; Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1; and APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 per Gleeson CJ and Heydon J at [37] and Gummow J at [168] [170]), and as to the phrase 'in trade or commerce' in s 52 of the Act (eg Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330).


case_text: These obligations imposed by the Franchising Code are to be complied with prior to the making of the agreement. As stated by Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [191], the provisions of the Franchising Code are to be read literally. 56 Each of the distributors in both the Swisscom aspect and Vending Machine aspect of these proceedings entered into a distributorship or purchasing agreement with either Global or In Touch.


case_text: There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .) 51 The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].


case_text: The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].


case_text: There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .)


case_text: The ACCC further alleges that the corporate respondents entirely failed to comply with Div 2.1 and Div 2.2 of the Franchising Code which set out the statutory obligations of a franchisor (relevantly the corporate respondents as alleged) prior to entering into a franchising agreement (see cl 6 to 11 of the Franchising Code ). The relevant parts of the legislation are discussed by Sundberg J in Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 at [4] [11]. The obligations, which the corporate respondents failed to satisfy, include maintaining a disclosure document in the form annexed to the Franchising Code and, prior to entering into franchising agreements with franchisees (relevantly the distributors involved in the proceedings): (a) providing such a disclosure document to the franchisees; (b) providing a copy of the Franchising Code to the franchisees; and (c) receiving certain signed statements from the franchisees.


case_title: Dickson v Gallagher (1985) ATPR 40-550


case_text: Proof of the losses has to be examined. I am satisfied as to the quantum claimed in each case as to the losses flowing from each relationship. There is a question as to parties. In some cases, the relevant agreement was entered into by a company associated with and funded by the individual(s) who were influenced by the misleading conduct. The calculation of damages thus raises the issues discussed in the authorities referred to in Harris v Milfull [2002] FCAFC 442 ; (2002) 43 ACSR 542, particularly Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215. There may be difficulties in sorting out losses suffered by the shareholders on the one hand and the company on the other. However, in the context of s 87(1B), there does not appear to be any barrier to claiming the overall losses jointly (and not severally) between the shareholder(s) and the company in such a case without dissection where each has consented to the proceeding as required. That is the case with the claims by Radcliffe and Tauto Investments Pty Limited; Bu and Tinson Far Eastern Group Pty Limited; Woldemichael and Red Sea International Pty Limited; Tony Savino and SAV Enterprises Pty Limited (all in relation to Vending Machines); Loncarie and Caslow Pty Limited; King and Flexprint Pty Limited; Vella and Global Mobile Solutions Pty Limited and Smith and Gelco Limited (all in relation to Swisscom). 70 There is an issue where the only claim is personal, but where the business was conducted in whole or in part by a company. That was the case in relation to each of Bartlett and Singh (re Vending Machines) and Bowen (re Swisscom). Bartlett entered into the agreement himself, and the company was collateral to that agreement. Singh initially signed the agreement himself, and the early expenses were paid personally but there was a later novation to Perfect Communications Pty Limited. A second agreement was signed by Singh in person. The Swisscom agreement was signed by the Bowens personally. There is no evidence to suggest that any of the companies involved in these cases included external shareholders or carried on any separate businesses that could not be segregated from the company or of the subject businesses. That being so, Gould v Vaggelas permits an analysis that can include loss to the individuals by reference to the effect upon them of the affairs of the company. On that basis the evidence is sufficient to establish the loss claimed, although not as detailed as it might be. 71 Interest should be included in the compensation orders pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) at the rate of 10.5 per cent per year on the whole of each award for the period between the date when the cause of action arose and the date as of which the judgment is entered. 72 The ACCC is entitled to a general order for costs including reserved costs except as against Global and In Touch. There should be a special order as sought in relation to the costs of 10, 25 and 26 May 2005 that were reserved.


case_title: Guglielman v Trescowthick [2004] FCA 326


case_title: Handley v Snoid (1981) ATPR 40-219


case_text: Proof of the losses has to be examined. I am satisfied as to the quantum claimed in each case as to the losses flowing from each relationship. There is a question as to parties. In some cases, the relevant agreement was entered into by a company associated with and funded by the individual(s) who were influenced by the misleading conduct. The calculation of damages thus raises the issues discussed in the authorities referred to in Harris v Milfull [2002] FCAFC 442 ; (2002) 43 ACSR 542, particularly Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215. There may be difficulties in sorting out losses suffered by the shareholders on the one hand and the company on the other. However, in the context of s 87(1B), there does not appear to be any barrier to claiming the overall losses jointly (and not severally) between the shareholder(s) and the company in such a case without dissection where each has consented to the proceeding as required. That is the case with the claims by Radcliffe and Tauto Investments Pty Limited; Bu and Tinson Far Eastern Group Pty Limited; Woldemichael and Red Sea International Pty Limited; Tony Savino and SAV Enterprises Pty Limited (all in relation to Vending Machines); Loncarie and Caslow Pty Limited; King and Flexprint Pty Limited; Vella and Global Mobile Solutions Pty Limited and Smith and Gelco Limited (all in relation to Swisscom).


case_title: Haydon v Jackson (1988) ATPR 40-845


case_title: Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1


case_text: The orders sought to compensate third parties require attention. There is no doubt as to the entitlement in principle to such an order in each case. I am satisfied, in particular, that each respondent was responsible for misleading conduct that contributed to the decision taken by the relevant party or parties respectively to enter into the arrangement leading to loss and damage. That is all that is required ( I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 per Gaudron, Gummow and Hayne JJ at [57]).


case_text: The inference that the evidence of the individual respondents would not have assisted their respective cases is available Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 and 321 . There is now a plethora of cases explaining the context of that inference in various ways. It may be accepted that it does not provide positive evidence to fill a gap in the ACCC's case. However, it may strengthen an inference otherwise available on the evidence or, to put it another way, may make a court more comfortable in drawing such an inference. Of course, the inference has particular application where positive evidence is not challenged. I should add that I do not propose to act upon any inference arising out of the answers to, or the failure to answer, interrogatories in relation to Nicholas Yates or Nicholas Rhodin. 58 I do not accept the argument that there is any special standard of proof beyond the balance of probabilities applicable to this proceeding.


case_text: That does not alter the requirements for proof of accessorial liability (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] [160]; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 per Stone J at [66] [93]). Of course, proof of knowledge of the elements of the offence is proof to the civil standard based upon the whole of the evidence.


case_title: Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617


case_title: Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95


case_text: Until the decision of the Full Court in Quinlivan v Australian Competition and Consumer Competition [2004] FCAFC 175 there were unsettled questions concerning the interrelationship between s 51A and s 75B of the Act. Despite submissions to the contrary by counsel for the ACCC, in my opinion that decision settled those questions for the purposes of a single judge, with one possible qualification. The reasoning of the Full Court appears as follows (at [10] [15]): 'From the interaction of these provisions three conclusions emerge. First, s 51A does not detract from the Yorke principle that actual knowledge of the essential elements of the contravention is required if s 75B or s 80 is to apply. Where the contravening conduct involves misrepresentation, whether as to a future matter or not, this principle requires actual knowledge by the accessorial respondent of the falsity of the representation. This is an essential matter which must be alleged and proved: Su v Direct Flights International Pty Ltd [1999] FCA 78 at [38] , Fernandez v Glev Pty Ltd [2000] FCA 1859 at [18] . Secondly, the reversal of onus in s 51A(2) does not apply where the accessorial liability of s 75B or s 80 is relied on. ... Thirdly, it is implicit in s 51A(1) that where a corporation does have reasonable grounds for making a representation with respect to a future matter then there will be no contravention of s 52. ... Accordingly, where s 75B or s 80 accessorial liability is in issue in relation to a representation with respect to a future matter, the existence or otherwise of reasonable grounds will be relevant. If reasonable grounds exist, there will have been no contravention and thus no question of accessorial liability will arise. However, as against the accessorial respondent, the onus will be on the applicant to show the respondent had actual knowledge that • the representation was made and • it was misleading or • the corporation had no reasonable grounds for making it (See Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 at [303] .)' 46 The qualification is that in a case such as the present, where the corporations are parties, there is an argument available that the liability of the corporation should be decided in accordance with s 51A for all purposes including assessment of accessorial liability.


case_title: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236


case_title: Snyman v Cooper (1989) 24 FCR 433


case_title: Snyman v Cooper (No 2) (1990) 25 FCR 470


case_text: The submissions for the ACCC in relation to each of Nicholas Yates and Nicholas Rhodin referred to the use that may be made of falsehoods referring to the well-known passage from the judgment of Gibbs J in Steinberg v Federal Commissioner of Taxation [1973] HCA 11 ; (1975) 134 CLR 640 at 694 in view of their participation in the setting up of false referees to corroborate the representations made to prospective distributors. I accept that the conduct did take place, and would infer that the false references were for the purpose of buttressing the representations made. That would assist in drawing the inference that those involved knew that the representations had been made and were false.


case_title: Swan v Downes (1978) 34 FLR 36


case_title: Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194


case_title: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510

case_text: The conclusions reached by the Tribunal were all based upon findings of fact open to be made by the Tribunal. The Ground is but an invitation for this Court to conclude that the Tribunal would have reached a different factual conclusion had it " fully " considered the material before it. But the task of making findings of fact is a task entrusted by the legislature to the Tribunal. The " weight " to be given to such evidence as is before the Tribunal is a matter entrusted to the Tribunal alone: cf Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580 per Kirby J; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. The Tribunal (in any event) did " fully " consider the claim. The learned Federal Magistrate concluded that the Tribunal had not committed any jurisdictional error in reaching the conclusion that it did. And no error is exposed in that decision of the Federal Magistrate.


case_title: Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 , 141 FCR 370

case_text: In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an " instrument of oppression ". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a " very wide discretion on the Court ": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53] , [2004] FCA 1664 ; 141 FCR 370 at 382 3. And the power conferred by O 1 r 8 " may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure ": [1985] FCA 35 ; (1985) 5 FCR 395 at 403 4 per McGregor J. It has also been said that " [t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require ": Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] . Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules . See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43] [55], [2002] FCA 367 ; 121 FCR 185 at 193 5 per North, Goldberg and Hely JJ.


case_title: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547


case_title: Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395


case_text: A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 128 ; SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1697 ; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2] , [2004] FCAFC 123 ; 206 ALR 471 at 472 per Finn and Stone JJ.


case_title: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA


case_title: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 , 121 FCR 185


case_title: SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1697


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152

case_text: Although it is correct to observe, as did the Tribunal, that there may be no onus upon a claimant, it is equally clear that a decision-maker need not make out a claimant's case for him. "[I] t is for the applicant for a protection visa to establish the claims that are made ": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40] , [2006] HCA 63 ; 228 CLR 152 at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; SZIFB v Minister for Immigration & Citizenship [2007] FCA 1727 at [10] per Jacobson J.


case_text: Moreover, it is a Ground without substance. Section 426A(1) provides as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The authority of the Tribunal, to proceed to make a decision, conferred by s 426A(1) is dependent upon those two jurisdictional facts being satisfied: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] , [2007] HCA 35 ; 237 ALR 64 at 73 4 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Section 425A(4) provides that where a person is invited to appear before the Tribunal a notice " must contain a statement of the effect of section 426A ". Of this provision, in SZCQR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 724 Moore J observed: [27] ... Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this. See also: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [13] [17], 100 ALD 1 at 4 5 per Tamberlin, Finn and Besanko JJ.


case_title: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 237 ALR 64


case_title: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , 100 ALD 1


case_title: SZIFB v Minister for Immigration & Citizenship [2007] FCA 1727


case_text: No jurisdiction is conferred upon this Court to conduct a review of the Tribunal's decision upon the basis invited by the Notice of Appeal . The relevant jurisdiction of this Court is its appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court: Federal Court of Australia Act , s 24(1)(d). See also: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 ; SZITO v Minister for Immigration & Citizenship [2008] FCA 758 at [4] [5], [32] per Greenwood J.


case_text: An application was thereafter made to the Federal Magistrates Court on 20 November 2007 for review by that Court of the Tribunal's decision. The Federal Magistrates Court dismissed the application: SZLQW v Minister for Immigration [2008] FMCA 782. The Appellant now appeals to this Court. 3 Today, when the matter was called on for hearing, there was no attendance by the Appellant. The Appellant, however, had been advised of the date and time of the hearing of this appeal by way of a letter from the National Appeals Registrar of this Court dated 22 July 2008. On behalf of the First Respondent, an application was then made for the appeal to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Rather than dismissing the appeal, it was considered that the more prudent course was to proceed to hear the appeal in the absence of the Appellant. Such a course is permitted by O 52 r 38A(1)(d) of the Federal Court Rules . Rule 38A provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: (a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or (b) adjourn the hearing; or (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1) (d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal.


case_title: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471


case_title: Zegarac v Dellios [2007] FCAFC 58

case_text: Both Grounds , it should be observed at the outset, fail to expressly identify any error committed by the Federal Magistrate. By failing to identify any such error, the Appellant has not stated " the grounds relied upon in support of the appeal " as required by O 52 r 13(2)(b) of the Federal Court Rules . A failure to comply with that requirement, however, does not render an appeal incompetent: Zegarac v Dellios [2007] FCAFC 58 at [7] per North J (Weinberg and Jessup JJ agreeing).


case_text: (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) & ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. Mr Bigmore's second submission was that Gonzalez was plainly wrong. He accepted that I should follow the judgment of another single judge of this Court unless I was persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): "The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable."


case_text: (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) & ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. In the course of interlocutory proceedings in the Federal Magistrates Court, it became apparent that it would be contended that the commencement of this proceeding was not regular in the absence of leave having been granted for the presentation of the petition pursuant to subs (13) of s 244 , which provides as follows: "Where proceedings have been commenced in a court for the administration of a deceased person's estate under a law of a State or Territory, a petition for an order under this section in relation to the estate shall not be presented by a creditor except by leave of the Court and on such terms and conditions (if any) as the Court thinks fit." It also became apparent that reliance would be placed upon the judgment of this Court in Gonzalez v Maria de Luz Marmentini, Executrix of the Estate of the late Ida Garcia Raber, an unreported judgment of Emmet J given on 7 July 1998. I shall refer to that judgment further below, it being sufficient here to relate that the Federal Magistrates Court considered it more appropriate that the argument whether that judgment was 'plainly wrong', if there were to be such an argument, should be had in this Court, rather than in that Court. For this and other reasons to which that Court referred, on 19 July 2006 the proceeding was transferred to this Court. The parties argued the question of the applicability of s 244(13) of the Bankruptcy Act as a preliminary point. It was submitted by Mr Bigmore QC, who appeared with Mr Lyons for William Meinhardt Jr, that the applicant required the leave of the Court before presenting the petition which it had purported to present on 1 May 2006, although he accepted that, if that leave were now to be sought and granted, the grant could validly operate nunc pro tunc. Mr Sifris QC, who appeared with Mr Fary for the applicant, submitted that leave was not required in the circumstances of this case. Mr Foster, the solicitor for Victoria Treyvaud, made submissions on some legal issues arising, without indicating any particular position with respect to the application of subs (13) in the circumstances. The burden of Mr Bigmore's submission was that the Supreme Court proceedings to which I have referred are, either separately or taken together, 'proceedings ... in a court for the administration of a deceased person's estate under a law of a State or Territory' within the meaning of subs (13). Mr Sifris took issue with that proposition, contending that the Supreme Court proceedings were concerned only with identifying, and empowering according to law, the person or persons who would thereafter be responsible for the administration of the estate of William Meinhardt Sr. He relied upon the judgment in Gonzalez in support of the proposition that the 'administration' to which subs (13) refers is a general administration of the whole estate of the kind that was once done in Chancery, or a more limited analogue of that description of administration for which, for example, Pt 54 of the Rules of the Supreme Court of Victoria now provides. The one Ace which Mr Sifris had in his hand was the judgment of Emmet J in Gonzales to which I have referred. In the facts which led to that judgment, the executrix was granted probate of the will of the deceased on 6 August 1997. On 6 April 1998, a creditor filed a petition under s 244 of the Bankruptcy Act for the administration of the deceased estate in bankruptcy. It was contended that subs (13) operated as a bar to the presentation of the petition. The response to this was that s 244(13) referred only to proceedings in the nature of a general administration, and was inapplicable where the only proceedings were those which had lead to the grant of probate. Emmet J accepted that response. He said that the purpose of s 244(13) was 'to ensure that there are not two courts administering an insolvent estate or administering the estate generally'. His Honour referred to Pt 68 of the NSW Supreme Court Rules (corresponding to Pt 54 of the Victorian Supreme Court Rules ) and continued: "It is an order such as is contemplated by Pt68 of the Supreme Court Rules which I consider was in contemplation when s 244(13) was enacted. Administration suits in Australia are in fact rare for the reasons which I have briefly indicated. The purpose of s 244(13) is to ensure that where an order for the administration of an estate has been made by the Supreme Court of a State or Territory, the effect of which is to prevent any dealings with the estate otherwise than under the direction of the Court, the Bankruptcy Court will not, in conflict with such an order, seek to administer the estate." His honour also referred to s 244(9) which, he noted, suggested that the statutory draftsman had in mind that subs (13) 'would not apply to every application for the grant of probate'. Mr Bigmore dealt with Gonzalez at two levels. First, he submitted that Gonzalez was concerned with a situation in which the probate proceedings in the Supreme Court had been completed by the time the s 244 petition was presented. On his construction of subs (13), the opening words 'where proceedings have been commenced' carry the sense of proceedings which have been commenced, but remain pending, as at the date of the presentation of the bankruptcy petition. Mr Bigmore said that Emmet J's judgment was correct on the facts before him, since the probate proceedings in the Supreme Court were well concluded before the bankruptcy proceedings commenced in this Court. He submitted, accordingly, that Gonzalez should be distinguished. I do not think that Gonzalez may be distinguished in this way. It is not a situation in which an earlier case has been decided a particular way because of a fact or circumstance which does not exist in the instant case. It is, rather, a situation in which an earlier case has been decided by reference to a particular rule or proposition, whereas it might equally have been decided the same way by reference to a different rule or proposition having application to facts or circumstances which differ from those existing in the instant case. In the latter situation, the rule or proposition by reference to which the earlier case was in fact decided constitutes its ratio decidendi. It is true, of course, that the ratio decidendi of a decided case extends no further than the rules and propositions which were essential for the course of reasoning which led the case to be decided in the way that it was. However, this does not justify a later court in effectively deconstructing the earlier court's process of reasoning by postulating a more limited basis upon which the earlier case might have been, but was not, decided. Mr Bigmore's second submission was that Gonzalez was plainly wrong. He accepted that I should follow the judgment of another single judge of this Court unless I was persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): "The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable." I am a considerable distance from forming the view that the judgment in Gonzalez was wrong, much less plainly wrong. In the circumstances, I am bound to follow, and I do follow, the judgment in Gonzalez . It follows that I rule that there is nothing in s 244(13) of the Bankruptcy Act which would constitute a bar to the commencement to this proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup . Associate: Dated: 22 August 2006 Counsel for the Applicant: M.Sifris QC and P.Fary Solicitor for the Applicant: Maddocks Counsel for the Second Respondent: G.T.Bigmore QC and K.J.A Lyons Solicitor for the Second Respondent: Chambers & Co Counsel for the Third Respondent: A.Foster Solicitor for the Third Respondent: Foster Harris Lawyers Date of Hearing: 10 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1106.html