case_text: relevant principles governing the making of an order pursuant to s 482(1) are well settled and were summarised by Austin J in Re United Medical Protection Limited (2003) ACSR 705 at [30]. His Honour said: As to termination of a winding up, I was taken to Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22 at 26-7; Re Mascot Homes Furnishers Pty Ltd [1970] VR 593 at 598 and Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756 ; (2000) 35 ACSR 70 at [47] - [51] . Those cases show that in considering an application to terminate a court-ordered winding up under s 482 , the court has regard to the effect of the proposal on various categories of interests: the interests of creditors (including future creditors who might be prejudiced if the company is released from winding up in an encumbered state); the interests of the liquidator, particularly with respect costs; the interests of contributories; and the public interest (including the public interest in upholding commercial morality), the court taking the initial approach that insolvent companies should be wound up. I have taken the matters referred to by his Honour into account in considering whether to make an order terminating the winding-up of the Defendant. Subject to having its debt and the costs of the winding up proceedings paid, the Plaintiff consents to an order terminating the winding up of the Defendant. The Plaintiff has acknowledged that the debt has been paid. Likewise, subject to his costs of the winding up being paid, the Liquidator consents to such an order. There is also evidence before me that the Australian Securities Investment Commission has been notified of the application to terminate the winding up and that it does not wish to be heard in relation to that application. As to the public interest, I am satisfied that there are no public interest considerations that weigh against making an order terminating the winding up. I do not intend to imply that there are no ongoing issues to do with the management and records of the Defendant that still need to be attended to by the directors. I think there are. However, in my opinion these should be left to the directors of the Defendant and its newly appointed auditor.


case_outcome: cited

case_text: Recent authorities support the proposition that Order 35 does not require proof by way of evidence of the claim. It requires that on the face of the statement of claim there is a claim for relief sought and that the court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 per Nicholson J at [14] and Arthur v Vaupotic Investments Pty Limited [2005] FCA 433 ; cf Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36 at [49] , [57] [58].


case_title: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856


case_outcome: referred to

case_text: It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 per Stone J.


case_text: It was until recently well settled that there was no presumption upon default of the respondent of the correctness of the applicant's claims: see Commissioner of Taxation v Finn [1960] HCA 69 ; (1960) 103 CLR 165.


case_title: Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664


case_outcome: distinguished

case_title: Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36


case_title: Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288


case_outcome: followed

case_text: While it may be that a Tribunal must notify an appellant adequately of the issues to which its reasoning processes might be directed, it is not necessary and often would be inappropriate for the Tribunal to put to an applicant in so many words that he or she is lying, that he or she may not be accepted as a witness of truth or that he or she may be thought to be embellishing the account that he has given of certain events. Proceedings before the Tribunal are not adversarial and the Tribunal is not to adopt the position of the contradictor (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 47). There was no error on the part of the primary judge in his conclusions. 13 The primary judge also considered other possible jurisdictional errors on the part of the Tribunal of which there was no suggestion in the appellant's application of 12 April 2006. There is no apparent error in his Honour's observations on those matters. 14 The grounds stated in the notice of appeal are as follows: "I do not believe that Federal Magistrates Court give me a fair judgment of my protection visa application. I am a Falun Gong member and I will be prosecuted if I go back to China. It is wrong that RRT member did not invite me to comment on any doubts she had during or after hearing. I did not have any chance to explain. RRT member also believes that my evidence seemed rehearsed without any evidence. Court should listen to the tape of RRT hearing and know what is really happening on that day." The grounds are not helpful, but appear to be an assertion that the Federal Magistrates Court erred in failing to hold that the Tribunal committed jurisdictional error by not inviting the appellant to comment on doubts as to the appellant's credibility. I have already referred to that matter. 15 In any event, whether or not such an omission could constitute jurisdictional error, it does not appear to be the case here. That is to say, the reasons of the Tribunal suggest that it put in express terms to the appellant its concerns about inconsistency between his evidence and independent information. There was no error on the part of the Federal Magistrates Court. 16 The appeal should be dismissed with costs. The Minister asks for costs in the fixed amount of $3,200. While there is no evidence as to the reasonableness of that fee, I am not persuaded that it is unreasonable. In the absence of the appellant it seems to me to be appropriate to accede to the Minister's request in order to avoid unnecessary further costs. I order the applicant to pay the first respondent's costs in the sum of $3,200. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 28 February 2007 The Appellant did not appear. Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 February 2007 Date of Judgment: 15 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/229.html


case_text: The Respondents submitted that it was relevant also to take into account, as part of the background to their application, litigation that Mr Rogers' wife, Lynne Maree Rogers ("Mrs Rogers") had come to institute in the Court. Having regard to the events and proceedings listed in the chronology below and to an observation made by Spender J in one of those proceedings that: "It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant's husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings" ; Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 at [9] , I agree. 16 Further detail concerning relevant events is given in the following chronology: CHRONOLOGY Date Event 2003/2004 Mr Rogers and Livingspace Holdings, borrowed monies from ALCPL. The monies were secured by, amongst other things, guarantees from Mr Rogers, Mrs Rogers and Ms Braas. 13.07.04 ALCPL, by its solicitors, issued a Letter of Demand to Mr Rogers demanding repayment of his indebtedness to it under his guarantee. 20.07.04 Mr Rogers commenced proceeding QUD136/2004 against the present First to Sixth Respondents. The parties appeared before Justice Spender on 28 July 2004, and the proceedings were adjourned to 10 August 2004. 04.08.04 Proceeding QUD136/2004 settled pursuant to the terms of a Deed of Settlement ("First Deed") executed by the parties, including the Applicant and Ms Brass. Proceeding QUD136/2004 was discontinued by Mr Rogers as provided for under the First Deed. 08.11.04 Mr Rogers commenced proceeding QUD224/2004 against the present First to Sixth Respondents, seeking substantially the same relief claimed by him in QUD136/2004. 08.12.04 Proceeding QUD224/2004 heard by Justice Spender, who declined to make interim orders in terms of those sought by Mr Rogers. His Honour made directions for the future conduct of the proceeding and set it down for hearing for 4 days commencing 23 May 2005. 20.12.04 Mr Rogers commences proceeding QUD275/2004 by way of an appeal against Justice Spender's decision on 8 December 2004 to refuse to grant the interlocutory relief sought in QUD224/2004. 23.02.05 Mr Rogers declared bankrupt on the petition of Dale & Myers Timber Trade Centre Pty Ltd. 01.03.05 The solicitors for the Respondents to QUD224/2004 request Mr Rogers' trustee in bankruptcy to make an election pursuant to s 60 Bankruptcy Act 1966 (Cth) (" Bankruptcy Act "). 08.09.05 Mrs Rogers consents to judgment against her in favour of ALCPL in proceeding 1600/2005 in the New South Wales Supreme Court. By these proceedings the Second Respondent sought possession a property at 2 Wommin Lake Crescent, Fingal Head. 06.10.05 Matter QUD224/2004 was struck out by Justice Spender on the basis that the action was deemed abandoned pursuant to s 60 Bankruptcy Act 1966 . 26.10.05 Matter QUD275/2004 was struck out by Justice Spender on the basis that the appeal was nugatory. 30.11.05 Mrs Rogers commenced proceeding QUD525/2005 against the First to Sixth Respondents, relying on virtually identical facts, matters and circumstances alleged by Mr Rogers in QUD136/2004 and QUD224/2004. 05.12.05 Mr Rogers applied to reinstate QUD224/2004. Justice Spender declined to reinstate the proceedings. 07.04.06 Mr Rogers commenced proceedings QUD130/2006, relying on virtually identical facts, matters and circumstances as those previously alleged by Mrs Rogers and him in previous matters in the Federal Court. 20.04.06 Justice Greenwood dismissed the application for interlocutory relief and reserved costs in proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434. 12.10.06 The Respondents in proceeding QUD525/2005 apply for the proceeding to be dismissed or permanently stayed. Justice Spender reserved his decision. 07.12.06 Justice Collier dismissed the balance of proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 1708. 15.12.06 Mr Rogers commenced proceeding QUD504/2006 by way of an appeal against Justice Collier's decision in QUD130/2006. 23.02.07 Matter QUD504/2006 dismissed by Justice Greenwood: Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195. 14.06.07 Mrs Rogers commenced proceeding QUD173/2007 against the First to Seventh Respondents, seeking virtually the same relief claimed in proceeding QUD525/2005 (which as at the time remained reserved by Spender J) and relief on the same facts, matters and circumstances. 30.08.07 Justice Spender dismissed proceeding QUD525/2005, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371. 01.11.07 Justice Collier dismissed proceeding QUD173/2007, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1660. 08.11.07 Mrs Rogers commenced proceeding QUD375/2007 against the First to Seventh Respondents in which she seeks leave to appeal against the decision of Justice Collier in QUD173/2007.


case_text: By coincidence, in the ordinary operation of this Court's docket system, it has fallen to me (in QUD375/2007) to decide whether to grant to Mrs Rogers leave to appeal in respect of some of her litigation namely, proceeding QUD173/2007, Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660 , 1 November 2007, Collier J. There was no objection made to my having each matter. Nonetheless, I have expressly considered whether, in light of that coincidence and the conclusion reached by me in the preceding paragraph, I ought not to hear one of the applications made with respect to Mr and Mrs Rogers' respective proceedings with the other being transferred to another judge to hear and determine. In my opinion, the rules of natural justice do not require that course to be taken. 9 In the substantive application filed in this proceeding Mr Rogers seeks the following relief: (a) orders under s 12GF of the Australian Securities and Investment Commission Act 2001 (Cth) (" ASIC Act ") being damages for "psychological stress, pain and suffering or mental damage" for breaches of the following sections of the ASIC Act : (i) unconscionable conduct s 12CA-CC; (ii) undue harassment and coercion s 12DJ; (iii) deceptive and misleading conduct s 12DA; (Mr Rogers relies upon s 12GH of the ASIC Act conduct by directors, employees or agents.) (b) any other orders that the Court deems fit. 10 In my reasons for judgment in relation to Mrs Rogers' leave to appeal application I describe the ultimate origins and chronicle the course of the other litigation which Mr Rogers and later his wife have come to institute or with which they have come to be involved in this and other courts. I have studied the affidavit which Mr Rogers came to swear and file in this proceeding on 1 November 2007 in support of the substantive application. In that affidavit he deposes to a series of alleged "events". Having regard to that affidavit and to the other evidence before me in this proceeding, it is evident that the substantive application and Mrs Rogers' leave to appeal application have like ultimate origins and that the course of the other litigation is likewise relevant. So as to make these reasons for judgment self-contained I have, instead of just incorporating my description and a related chronology by reference from the reasons for judgment in Mrs Rogers' case, again reproduced them in what follows. 16 Further detail concerning relevant events is given in the following chronology: CHRONOLOGY Date Event 2003/2004 Mr Rogers and Livingspace Holdings, borrowed monies from ALCPL. The monies were secured by, amongst other things, guarantees from Mr Rogers, Mrs Rogers and Ms Braas. 13.07.04 ALCPL, by its solicitors, issued a Letter of Demand to Mr Rogers demanding repayment of his indebtedness to it under his guarantee. 20.07.04 Mr Rogers commenced proceeding QUD136/2004 against the present First to Sixth Respondents. The parties appeared before Justice Spender on 28 July 2004, and the proceedings were adjourned to 10 August 2004. 04.08.04 Proceeding QUD136/2004 settled pursuant to the terms of a Deed of Settlement ("First Deed") executed by the parties, including the Applicant and Ms Brass. Proceeding QUD136/2004 was discontinued by Mr Rogers as provided for under the First Deed. 08.11.04 Mr Rogers commenced proceeding QUD224/2004 against the present First to Sixth Respondents, seeking substantially the same relief claimed by him in QUD136/2004. 08.12.04 Proceeding QUD224/2004 heard by Justice Spender, who declined to make interim orders in terms of those sought by Mr Rogers. His Honour made directions for the future conduct of the proceeding and set it down for hearing for 4 days commencing 23 May 2005. 20.12.04 Mr Rogers commences proceeding QUD275/2004 by way of an appeal against Justice Spender's decision on 8 December 2004 to refuse to grant the interlocutory relief sought in QUD224/2004. 23.02.05 Mr Rogers declared bankrupt on the petition of Dale & Myers Timber Trade Centre Pty Ltd. 01.03.05 The solicitors for the Respondents to QUD224/2004 request Mr Rogers' trustee in bankruptcy to make an election pursuant to s 60 Bankruptcy Act 1966 (Cth) (" Bankruptcy Act "). 08.09.05 Mrs Rogers consents to judgment against her in favour of ALCPL in proceeding 1600/2005 in the New South Wales Supreme Court. By these proceedings the Second Respondent sought possession a property at 2 Wommin Lake Crescent, Fingal Head. 06.10.05 Matter QUD224/2004 was struck out by Justice Spender on the basis that the action was deemed abandoned pursuant to s 60 Bankruptcy Act 1966 . 26.10.05 Matter QUD275/2004 was struck out by Justice Spender on the basis that the appeal was nugatory. 30.11.05 Mrs Rogers commenced proceeding QUD525/2005 against the First to Sixth Respondents, relying on virtually identical facts, matters and circumstances alleged by Mr Rogers in QUD136/2004 and QUD224/2004. 05.12.05 Mr Rogers applied to reinstate QUD224/2004. Justice Spender declined to reinstate the proceedings. 07.04.06 Mr Rogers commenced proceedings QUD130/2006, relying on virtually identical facts, matters and circumstances as those previously alleged by Mrs Rogers and him in previous matters in the Federal Court. 20.04.06 Justice Greenwood dismissed the application for interlocutory relief and reserved costs in proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434. 12.10.06 The Respondents in proceeding QUD525/2005 apply for the proceeding to be dismissed or permanently stayed. Justice Spender reserved his decision. 07.12.06 Justice Collier dismissed the balance of proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 1708. 15.12.06 Mr Rogers commenced proceeding QUD504/2006 by way of an appeal against Justice Collier's decision in QUD130/2006. 23.02.07 Matter QUD504/2006 dismissed by Justice Greenwood: Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195. 14.06.07 Mrs Rogers commenced proceeding QUD173/2007 against the First to Seventh Respondents, seeking virtually the same relief claimed in proceeding QUD525/2005 (which as at the time remained reserved by Spender J) and relief on the same facts, matters and circumstances. 30.08.07 Justice Spender dismissed proceeding QUD525/2005, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371. 01.11.07 Justice Collier dismissed proceeding QUD173/2007, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1660. 08.11.07 Mrs Rogers commenced proceeding QUD375/2007 against the First to Seventh Respondents in which she seeks leave to appeal against the decision of Justice Collier in QUD173/2007. 32 It is no coincidence that this proceeding, with additional Respondents, including Mr Whittle, who had not hitherto featured in Mr Rogers' litigation, came to be instituted after de Jersey CJ made his orders and on the same day that Collier J dismissed an application brought on 14 June 2007 by Mrs Rogers against those who are the present First to Seventh Respondents: Rogers v Asset Loan Co Pty Ltd [2007] FCA 1660 , 1 November 2007. I note that, in those proceedings (at [38] & [39]), Collier J reached a like conclusion in relation to circumvention when ordering the removal from that file of affidavits sworn by Mr and Mrs Rogers respectively. If nothing else, for like reasons, a like fate in these proceedings should be visited on Mr Rogers' affidavit of 1 November 2007 pursuant to O 14 r 8 of the Federal Court Rules .


case_text: Further detail concerning relevant events is given in the following chronology: CHRONOLOGY Date Event 2003/2004 Mr Rogers and Livingspace Holdings, borrowed monies from ALCPL. The monies were secured by, amongst other things, guarantees from Mr Rogers, Mrs Rogers and Ms Braas. 13.07.04 ALCPL, by its solicitors, issued a Letter of Demand to Mr Rogers demanding repayment of his indebtedness to it under his guarantee. 20.07.04 Mr Rogers commenced proceeding QUD136/2004 against the present First to Sixth Respondents. The parties appeared before Justice Spender on 28 July 2004, and the proceedings were adjourned to 10 August 2004. 04.08.04 Proceeding QUD136/2004 settled pursuant to the terms of a Deed of Settlement ("First Deed") executed by the parties, including the Applicant and Ms Brass. Proceeding QUD136/2004 was discontinued by Mr Rogers as provided for under the First Deed. 08.11.04 Mr Rogers commenced proceeding QUD224/2004 against the present First to Sixth Respondents, seeking substantially the same relief claimed by him in QUD136/2004. 08.12.04 Proceeding QUD224/2004 heard by Justice Spender, who declined to make interim orders in terms of those sought by Mr Rogers. His Honour made directions for the future conduct of the proceeding and set it down for hearing for 4 days commencing 23 May 2005. 20.12.04 Mr Rogers commences proceeding QUD275/2004 by way of an appeal against Justice Spender's decision on 8 December 2004 to refuse to grant the interlocutory relief sought in QUD224/2004. 23.02.05 Mr Rogers declared bankrupt on the petition of Dale & Myers Timber Trade Centre Pty Ltd. 01.03.05 The solicitors for the Respondents to QUD224/2004 request Mr Rogers' trustee in bankruptcy to make an election pursuant to s 60 Bankruptcy Act 1966 (Cth) (" Bankruptcy Act "). 08.09.05 Mrs Rogers consents to judgment against her in favour of ALCPL in proceeding 1600/2005 in the New South Wales Supreme Court. By these proceedings the Second Respondent sought possession a property at 2 Wommin Lake Crescent, Fingal Head. 06.10.05 Matter QUD224/2004 was struck out by Justice Spender on the basis that the action was deemed abandoned pursuant to s 60 Bankruptcy Act 1966 . 26.10.05 Matter QUD275/2004 was struck out by Justice Spender on the basis that the appeal was nugatory. 30.11.05 Mrs Rogers commenced proceeding QUD525/2005 against the First to Sixth Respondents, relying on virtually identical facts, matters and circumstances alleged by Mr Rogers in QUD136/2004 and QUD224/2004. 05.12.05 Mr Rogers applied to reinstate QUD224/2004. Justice Spender declined to reinstate the proceedings. 07.04.06 Mr Rogers commenced proceedings QUD130/2006, relying on virtually identical facts, matters and circumstances as those previously alleged by Mrs Rogers and him in previous matters in the Federal Court. 20.04.06 Justice Greenwood dismissed the application for interlocutory relief and reserved costs in proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434. 12.10.06 The Respondents in proceeding QUD525/2005 apply for the proceeding to be dismissed or permanently stayed. Justice Spender reserved his decision. 07.12.06 Justice Collier dismissed the balance of proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 1708. 15.12.06 Mr Rogers commenced proceeding QUD504/2006 by way of an appeal against Justice Collier's decision in QUD130/2006. 23.02.07 Matter QUD504/2006 dismissed by Justice Greenwood: Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195. 14.06.07 Mrs Rogers commenced proceeding QUD173/2007 against the First to Seventh Respondents, seeking virtually the same relief claimed in proceeding QUD525/2005 (which as at the time remained reserved by Spender J) and relief on the same facts, matters and circumstances. 30.08.07 Justice Spender dismissed proceeding QUD525/2005, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371. 01.11.07 Justice Collier dismissed proceeding QUD173/2007, with costs. Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1660. 08.11.07 Mrs Rogers commenced proceeding QUD375/2007 against the First to Seventh Respondents in which she seeks leave to appeal against the decision of Justice Collier in QUD173/2007. 19 In one of those earlier cases, Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 Greenwood J commented (at [48]): It may be that when Mr Rogers or his advisers formulate a statement of claim in the proceeding, a claim might emerge which, in terms of its material facts, reflects a claim within the exemption reliant upon conduct which involves a contravention of ss 52 , 51AC or 60 of the Trade Practices Act 1974 (Cth) independently of any of the former rights of the bankrupt in property which have become vested in the trustee. At the moment the material does not establish any such right. The alleged contraventions of the Trade Practices Act 1974 (Cth) which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee. 20 This comment was made with reference to that class of property which s 116(2)(g) of the Bankruptcy Act removes from property divisible amongst a bankrupt's creditors, namely: (2) Subsection (1) does not extend to the following property: ... (g) any right of the bankrupt to recover damages or compensation: (i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; or (ii) in respect of the death of the spouse of the bankrupt or a member of the family of the bankrupt; and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person. 21 In another of those earlier cases, Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 , which again came before Greenwood J, his Honour commented (at [44]): Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls 'does not apply to the supply, or possible supply, of services that are financial services'. The relevant statutory instrument regulating financial services is the [ASIC Act]. 22 These comments seem to have inspired Mr Rogers to give his perceived grievances different attire in the form of the present proceedings in the hope that they will prove less threadbare in law than has hitherto proved to be the case. Regard to Mr Rogers' affidavit of 1 November 2007 discloses that, in the main, those perceived grievances replicate those set out in statements of claim that he filed in earlier proceedings in this Court. An exception to this is a personal injuries damages claim based on alleged breaches of the ASIC Act . 23 Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 35 The reference to "the principle stated by Dixon J" is a reference to the reasons for judgment of his Honour in Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721 to which reference is made in the passage which I have quoted above from the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195. 39 In Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 , Greenwood J did no more than acknowledge a theoretical possibility, recognised in the authorities to which his Honour referred, of a severable personal injuries claim. As it transpires, Mr Rogers' endeavour to engage that theoretical possibility in practice is, at least as presently revealed, futile, in my opinion. 40 The Respondents have sought to have the substantive application dismissed pursuant to the powers conferred on the Court by s 31A of the Federal Court of Australia Act 1976 (Cth) (" Federal Court of Australia Act ").


case_text: Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 33 For the Respondents it is submitted that none of the damages Mr Rogers claims in the present proceeding would fall for assessment by "immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property". The conjunctive in this proposition, derived from Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, is emphasised on their behalf. It is submitted that the damages which Mr Rogers claims are entirely consequential on damage to Mr Rogers' financial interests as a result of alleged contraventions of the ASIC Act . Mr Rogers presses for an opposing conclusion. 35 The reference to "the principle stated by Dixon J" is a reference to the reasons for judgment of his Honour in Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721 to which reference is made in the passage which I have quoted above from the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195. 57 For all that, what in substance Mr Rogers has done in the present proceeding is to seek to agitate a claim for damages for personal injury, loss and damage pursuant to causes of action said to arise under the ASIC Act . He has not done this before. No submission was made that this absence of seeking to litigate this very cause of action was irrelevant in light of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and the outcome of earlier proceedings in this Court brought by Mr Rogers against some of the Respondents. Further, it is, with respect, as set out above, possible to discern in the reasons for judgment given in certain of the earlier proceedings the inspiration for the present proceeding. Yet further, the application of the principle described by Sir Owen Dixon in Cox v Journeaux (No. 2) in the circumstances of the present case is not without difficulty.


case_outcome: applied

case_text: Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 34 The answer, in my opinion, is supplied by analogy with the following passage from the judgment of Handley JA, with whom Kirby P (as his Honour then was) and Meagher JA agreed, in the unreported New South Wales Court of Appeal decision Manningel v Hewlett (12 June 1991), which was cited with approval by O'Loughlin and Merkel JJ in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 , at 563: The plaintiffs claimed damages in the proceedings in the manner particularised in paras 17(e), (f) and (g) of their amended statement of claim but these claims were consequential upon alleged breaches of professional duty owed to them by the defendants in relation to the purchase of the land and the contract by the vendor to erect a dwelling house on it. The plaintiffs' claims for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health therefore were not claims "without reference to their rights of property" within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiffs' financial and property interests as a result of alleged breaches of professional duty by the solicitors.


case_text: The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.


case_title: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125


case_title: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_title: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55


case_text: Like the High Court, this Court has no inherent power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the court: Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311 , at 318. That case acknowledges the existence of an inherent power which would permit a court such as the Federal Court to prevent an abuse of its process by staying or dismissing an existing proceeding. The respondents have no need to call in aid this power as the upholding of their application under s 31A of the Federal Court of Australia Act evidences.


case_text: A power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the Court is, however, conferred on the Court by the Federal Court Rules . One such relevant rule is O 21 r 1. In Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 (affirmed on appeal, Skyring v Ramsey [2000] FCA 774) , Sackville J upheld the validity of O 21 r 1 in its then form. His Honour regarded the rule as falling within the rule making power conferred on the court by the Parliament in s 59(1) and s 59(2)(l) of the Federal Court of Australia Act 1976 . Order 21 r 1 has since been amended but not in any way which would call into question the continuing relevance of the conclusion reached by Sackville J. Those provisions of the Federal Court of Australia Act also support the validity of the other relevant rule, O 21 r 2. 46 So far as presently material and as at the time when the Respondent's application was heard and written submissions made, O 21, r 1 and r 2 provided: 1 Vexatious litigant (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. (2) An order under this rule may be made: (a) on the Court's own motion; or (b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or (c) on the application of the Registrar. 2 Vexatious proceeding against a person Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court. 47 Order 21 r 1(2) has since been amended so as to allow an application under O 21 r 1 to be made by, relevantly, "a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings". This amendment, being procedural, would now give the Respondents a standing which they did not hitherto have to seek relief pursuant to O 21 r 1, providing, of course, that they were persons in respect of whom a vexatious proceeding had been instituted. The standing to bring an application under O 21 r 2, as the then language of that rule provided, was more accommodating for persons in the position in which the respondents allege themselves to be. 51 Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 , National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J). 54 Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap . 58 In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 at 380, [44], Finn J observed of O 21 r 1 and r 2: [44] By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 ; [1980] 1 All ER 289 at 295; Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 at 389 ; [1999] FCA 907 ; Freeman v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213 at 218 19 ; [2006] FCAFC 67. The purpose of the powers given under the Rules is to reinforce the power of the court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303 at 312; [1992] HCA 39 ; 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.


case_text: Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 , National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J). 54 Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap .


case_title: Granich and Associates v Yap [2004] FCA 1567


case_text: Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap . 58 In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 at 380, [44], Finn J observed of O 21 r 1 and r 2: [44] By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 ; [1980] 1 All ER 289 at 295; Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 at 389 ; [1999] FCA 907 ; Freeman v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213 at 218 19 ; [2006] FCAFC 67. The purpose of the powers given under the Rules is to reinforce the power of the court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303 at 312; [1992] HCA 39 ; 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.


case_text: For all that, what in substance Mr Rogers has done in the present proceeding is to seek to agitate a claim for damages for personal injury, loss and damage pursuant to causes of action said to arise under the ASIC Act . He has not done this before. No submission was made that this absence of seeking to litigate this very cause of action was irrelevant in light of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and the outcome of earlier proceedings in this Court brought by Mr Rogers against some of the Respondents. Further, it is, with respect, as set out above, possible to discern in the reasons for judgment given in certain of the earlier proceedings the inspiration for the present proceeding. Yet further, the application of the principle described by Sir Owen Dixon in Cox v Journeaux (No. 2) in the circumstances of the present case is not without difficulty.


case_text: Commissioner initially invoked the jurisdiction of this Court by way of an Application filed on 21 September 2009. An Amended Application was filed on 26 October 2009. The alleged " irregularities " are said to have arisen in respect to nominations for election to the positions of Federal Council Delegates from the Queensland Branch of the Australian Salaried Medical Officers' Federation ("the Federation") in May and June 2009. The facts relevant to the alleged " irregularity " raised by the Application as first filed are within a narrow compass. Nominations opened on 12 May 2009. Two nominations were received prior to the close of nominations on 26 May 2009 — one from Dr Nicholas Buckmaster and one from Dr Coralie Endean. At that point in time both doctors were unfinancial members of the Federation. Dr Endean tendered payment for her outstanding subscriptions on 5 June 2009, but that payment was not accepted. On 11 June 2009, letters were written to both Dr Buckmaster and Dr Endean in the same terms. Those letters advised that a check of the Federation's records revealed that the nominations were defective by reason of a failure to comply with Rule 13(4) of the Rules of the Federation. This Rule states the date on which " [a]ll subscriptions shall fall due for payment ... ". Reference was also made to Rule 15(3) , which deals with forfeiture of membership upon failure to pay outstanding subscriptions within a specified time period. Both letters concluded: Unless you become financial by 12 noon on Thursday 18 June 2009 I will reject your nomination. If you become financial during the next week I require evidence of the receipt of your membership subscription and this can be sent to me via fax or post. Notwithstanding the payment that Dr Endean sought to make on 5 June 2009, she apparently did not respond to this letter. Whether Dr Buckmaster had previously tendered any outstanding subscriptions or responded to the 11 June 2009 letter is unknown. The facts relevant to his nomination assume no prominence in the present application. Notwithstanding the manner in which the Application to this Court is expressed, it is considered that the law to be applied is that now contained in the Fair Work (Registered Organisations) Act 2009 (Cth) ("the 2009 Act"). That was the conclusion reached by Barker J after a review of the complex transitional provisions in Re Mcjannett (No 2) [2009] FCA 1015 at [3] to [10]. At the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor & Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.


case_title: Bourne v Campbell [1999] FCA 1522

case_text: it may be accepted that the holding of an inquiry is " a serious matter ", it has also been said that the statutory precondition to the holding of such an inquiry has been set by the legislature at a " low " level: Bourne v Campbell [1999] FCA 1522 at [8] , 93 IR 238 at 240. Einfeld J there observed: [8] When this application was first listed for directions, the Court was not invited by the respondents to determine that there was, as raised by s 219, no reasonable ground for the application. Yet a finding of satisfaction of the matter is in truth a statutory pre-requisite to the fixing of the hearing and the institution of the inquiry. The difficulty of reaching a preliminary view such as required by s 219, at a time when both the Court and the parties may not be in a position to consider the question, is probably at least one of the reasons for the presence in the legislation of s 223(5). In other words, if the Court and the parties are to achieve an early hearing of an inquiry into an election, as will virtually always be desirable, the level of satisfaction required by s 219 will ordinarily be quite low. The power to terminate under s 223(5) will then enable the Court to end an inquiry if a little later it is shown that there is no reasonable basis upon which the application can succeed. Whether it is correct to conclude that the " level of satisfaction ... will ordinarily be quite low " may be left to one side. The level of satisfaction required is that prescribed by the legislature; namely, the Court must be " satisfied that there are reasonable grounds " for the application being made. It may also be presently left to one side whether the requirement that there be " reasonable grounds " takes into account the facts and circumstances available to the person making the application. If the applicant is a " member ", it may be that such a person has more intimate knowledge of those facts and circumstances relevant to an assessment of whether or not there has been an " irregularity ". When the applicant is the Electoral Commissioner, as in the present case, these facts and circumstances may not be as readily accessible.


case_text: the purposes of s 201(b), it is considered that a Court may be " satisfied that there are reasonable grounds for the application " if satisfied that the construction of the Rules of an organisation being advanced by the Electoral Commissioner is reasonably open. The fact of an application being lodged with this Court under s 200 and the state of satisfaction that " there are reasonable grounds for the application " are the statutory prerequisites to the exercise of the power conferred by s 201 to " fix a time and place for conducting the inquiry ": cf Health Services Union of Australia and Health Services Union of Australia Victoria No 1 Branch In the Matter of an Inquiry Relating to an Election for an Office [2000] FCA 160. The correct construction of Rule 13 in the present proceeding and, in particular, subsections (1), (2) and (5), may thus presently be left to one side. The construction of that Rule now being advanced by the Electoral Commissioner — namely, that an unfinancial member may again become financial by payment of arrears and that a refusal to accept payment is a breach of the Rules — is a construction which is reasonably open. If that construction is correct, a breach of the Rules may have occurred. For present purposes, such evidence as there is provides a sufficient basis upon which it is open to the Electoral Commissioner to conclude that Dr Endean sought to pay outstanding subscriptions and that that attempted payment was refused. Why the payment was refused remains unknown. Any breach of the Rules in respect to Dr Finn is less certain. Although it would appear that Dr Finn did not seek to tender payment, the basis upon which he was told on 30 June 2009 that it was " not possible " (presumably) to join " the federal body directly " also invites inquiry. The belief of the Electoral Commissioner that that too may constitute a breach of the Rules is a belief which can reasonably be held.


case_outcome: considered

case_text: addressing attention to the definition of an " irregularity " as that term was previously defined in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth), in R v Gray; Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 368, Gibbs CJ said: The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. That case, unlike the present, did not involve any alleged breach of the rules of an organisation. The complaint was that electioneering material that had been distributed was misleading. Subsequently, in Re Collins; Ex parte Hockings [1989] HCA 42 ; (1989) 167 CLR 522 , more detailed attention was directed to when an " irregularity " arises " in relation to an election ". Brennan and Deane JJ there observed at 525 that: ... an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. Of concern to their Honours was the prospect raised by Gaudron J that, if acts which affect the formation of voting intentions were to fall within the definition of an " irregularity ", this " would involve a very substantial intrusion into the secrecy of the ballot ". Gaudron J confined the inquiry to the more formal machinery processes involved in an election, to the exclusion of electioneering. See also per Toohey and McHugh JJ at 526. It was to remedy the defects in the definition of " irregularity " considered in Re Collins that s 190 was apparently introduced: Re Mcjannett (No 2) [2009] FCA 1015 at [23] to [24]. Barker J there noted that s 190 was introduced for the first time as part of Sch 1 of the Workplace Relations Act 1996 (Cth) and did not exist under earlier legislation dealing with inquiries into irregularities.


case_text: is nevertheless clear that the particular " irregularity " being relied upon must be " in relation to " an election: Re Ivory [1993] FCA 103 ; (1993) 41 FCR 267 at 273. See also: Re Davidson (1990) 22 FCR 449 at 453 to 454 per Wilcox J. It may also be noted that the definition of " irregularity " is not an exhaustive definition.


case_text: addressing attention to the definition of an " irregularity " as that term was previously defined in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth), in R v Gray; Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 368, Gibbs CJ said: The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. That case, unlike the present, did not involve any alleged breach of the rules of an organisation. The complaint was that electioneering material that had been distributed was misleading. Subsequently, in Re Collins; Ex parte Hockings [1989] HCA 42 ; (1989) 167 CLR 522 , more detailed attention was directed to when an " irregularity " arises " in relation to an election ". Brennan and Deane JJ there observed at 525 that: ... an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. Of concern to their Honours was the prospect raised by Gaudron J that, if acts which affect the formation of voting intentions were to fall within the definition of an " irregularity ", this " would involve a very substantial intrusion into the secrecy of the ballot ". Gaudron J confined the inquiry to the more formal machinery processes involved in an election, to the exclusion of electioneering. See also per Toohey and McHugh JJ at 526.


case_text: 201 sets forth those circumstances in which an " inquiry " is to be conducted. That section provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200 ; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. Section 205 thereafter sets forth the procedure to be followed by the Court and s 206 sets forth the action that may be taken by the Court. Included within the orders that may be made is an order declaring an election, or any step in relation to an election, to be void. In Re Jacomb [2000] FCA 1891 , 180 ALR 134 , Weinberg J declined to make such an order.


case_text: invoke this Court's power to conduct an inquiry, it has been said, is " a serious matter ": Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233. Again, when addressing the terms of s 219, which conferred power on the Industrial Relations Court to conduct an inquiry, Kirby J there observed (at 241): It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme ... And, again, the same reservation is appropriate when an application is made pursuant to s 200 of the 2009 Act and when an inquiry is conducted pursuant to s 201: Re Mcjannett (No 2) [2009] FCA 1015 at [102] per Barker J.


case_text: the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor & Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.


case_title: Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342


case_title: Re Mcjannett (No 2) [2009] FCA 1015

case_text: the manner in which the Application to this Court is expressed, it is considered that the law to be applied is that now contained in the Fair Work (Registered Organisations) Act 2009 (Cth) ("the 2009 Act"). That was the conclusion reached by Barker J after a review of the complex transitional provisions in Re Mcjannett (No 2) [2009] FCA 1015 at [3] to [10]. It was to remedy the defects in the definition of " irregularity " considered in Re Collins that s 190 was apparently introduced: Re Mcjannett (No 2) [2009] FCA 1015 at [23] to [24]. Barker J there noted that s 190 was introduced for the first time as part of Sch 1 of the Workplace Relations Act 1996 (Cth) and did not exist under earlier legislation dealing with inquiries into irregularities. To invoke this Court's power to conduct an inquiry, it has been said, is " a serious matter ": Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233. Again, when addressing the terms of s 219, which conferred power on the Industrial Relations Court to conduct an inquiry, Kirby J there observed (at 241): It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme ... And, again, the same reservation is appropriate when an application is made pursuant to s 200 of the 2009 Act and when an inquiry is conducted pursuant to s 201: Re Mcjannett (No 2) [2009] FCA 1015 at [102] per Barker J.


case_title: Re Mellor; Re Federated Liquor & Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398


case_text: power conferred by s 201 is constrained by the requirement that the Court be " satisfied that there are reasonable grounds for the application ". Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. When considering the terms of earlier comparable legislation, French J there formulated the approach to be applied as follows (at 166): "Reasonable ground for the application" The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage. See also: Re Randall (1993) 44 FCR 324 at 325 per French J. The same approach should be applied to s 201(b) of the 2009 Act. Upon an application being made, the task presently entrusted to this Court is that set forth in s 201(b), namely to reach a state of satisfaction " that there are reasonable grounds for the application ". It is no part of the task now entrusted to the Court to attempt to pre-empt the result of any inquiry that may be held. As observed by French J (as His Honour then was) in Re Post , the task presently before the Court " require[s] an evaluative judgment at this preliminary stage ": (1992) 40 IR at 167. In Re Randall , His Honour referred to an application of the present kind as involving " threshold questions ": (1993) 44 FCR at 325.


case_title: Re Randall (1993) 44 FCR 324


case_text: The power expressly vested in the Supreme Court by s 4 of the Restraints of Trade Act may be exercised by this Court when determining a controversy within its jurisdiction to which the Act is relevant ( Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559). No party addressed me on the relevance for present purposes of the requirement in s 4(3) of the Act for an application to be made by a person subject to the restraint. 14 Luxottica did not place reliance on s 182 and s 183 of the Corporations Act , or on any alleged breach of fiduciary duties owed by Mr Carr to Luxottica. It relied only upon alleged breaches of his contract of employment. 15 In my view, the evidence placed before the Court was insufficient to sustain an inference that Mr Carr has breached, or threatens to breach, clause 21 of his contract of employment.


case_text: To obtain the interlocutory relief which it seeks Luxottica must demonstrate three things: (a) that there is a serious question to be tried; (b) that it will suffer irreparable injury for which damages will not be adequate compensation; and (c) that the balance of convenience favours the grant of interlocutory relief ( Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 per Mason ACJ). To some extent these three things overlap and it is not uncommon for the adequacy of damages as compensation to be considered as an aspect of the balance of convenience. 8 For the reasons set out below I am not satisfied that Luxottica is entitled to interlocutory relief against either Mr Carr or Hinkler. 9 Mr Carr signed a contract of employment with OPSM Pty Ltd on 21 June 2005. The contract is governed by the law of New South Wales. The ACN of OPSM Pty Ltd shown on the contract is the ACN of Luxottica as shown on its application. OPSM Pty Ltd must be assumed to have changed its name to Luxottica after 21 June 2005. 20 The degree of likelihood of success in Luxottica's case is a relevant consideration in assessing the balance of convenience ( Castlemaine Tooheys Ltd v South Australia at 154). The evidence reveals that every existing optometry business in Bundaberg is within a radius of five kilometres of the Sugarland premises. For this reason it is likely to be argued at trial that the maximum geographic restraint sought to be imposed on Mr Carr by clause 23 is unreasonable and constitutes an attempt to prevent his practising at all in Bundaberg other than with Luxottica. The second level of geographic restraint for which clause 23 provides is within a radius of three kilometres of the Sugarland premises. The Hinkler premises are outside this radius. 21 I am not satisfied that, to the extent that Luxottica's case against Mr Carr depends on the five kilometre radius restraint for which clause 23 provides, if the evidence remains as it is, it is probable, as opposed to possible, that Luxottica will be held entitled to relief. 22 Luxottica contended that the quasi-medical nature of optometry renders it likely that Mr Carr's clients will follow him with the result that he, together with Hinkler, will gain an unjustifiable headstart or 'springboard' as competitors of Luxottica unless interlocutory relief is granted. Luxottica also argued that it will be difficult for it to recruit another qualified optometrist.


case_text: However, I accept that there is a serious question to be tried as to the extent of the restraint of trade validly imposed on Mr Carr by clause 23 of his contract of employment and as to whether he is in breach of that restraint. While an employer is not entitled to be protected from mere competition from a former employee, it is entitled to protect the goodwill of its business and, for that purpose, to prevent the former employee from misusing his or her acquaintance with the employer's customers and taking advantage of the employer's trade connections ( Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177). The Restraints of Trade Act will ensure the validity of clause 23 to the extent that it is not contrary to public policy. 18 Luxottica contended that damages will not be an adequate remedy should it succeed in its action against Mr Carr. It argued that its loss and damage will be unquantifiable because of the difficulties that will attend the establishment of a causal link between Mr Carr's breach of clause 23 of his contract of employment and loss of profits by Luxottica. 19 Mr Carr has sworn that he does not have a list of the customers of Luxottica's Sugarland business and does not know who are the customers of that business. He has offered to keep a record of every customer who he examines and a record of all charges rendered in respect of each customer including charges for spectacles. This record will, in my view, go a significant way towards overcoming the problems which Luxottica foresees in establishing its damages should it succeed against Mr Carr at trial.


case_text: Section 4(1) of the Restraints of Trade Act 1976 (NSW) provides that a restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not. Section 4(3) of the Act authorises a person subject to a restraint of trade to apply to the Supreme Court of New South Wales where the operation of a restraint of trade would have a manifestly unreasonable operation. In Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] Aust Contract Reports 90-129; [2001] NSWCA 111 the Court of Appeal observed that s 4 does not authorise the remaking of the restraint; rather, where there is a postulated breach of the restraint, it permits the Court to enforce the restraint to the extent that is reasonable in the circumstances of the postulated breach.


case_text: J in Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 at [44] summarised the authorities governing the operation of s 459C of the Act. The summary included these propositions: The respondent is presumed to be insolvent and as such bears the onus of proving its solvency: s 459C(2) and (3); Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 22 ACSR 235 ; Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477. In order to discharge that onus the Court should ordinarily be presented with the "fullest and best" evidence of the financial position of the respondent: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081. Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency. Nor are bald assertions of solvency arising from a general review of the accounts, even if made by qualified accountants who have detailed knowledge of how those accounts were prepared: Simionato Holdings Pty Ltd (supra); Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463.


case_text: was subject to a presumption of insolvency when receivers were appointed to it pursuant to a floating charge: s 459C(2)(c) of the Corporations Act 2001 (Cth) ("the Act"). Australian Securities and Investment Commission ("ASIC") has applied to wind up Lanepoint on the basis of this presumption. This discharges ASIC's obligation to demonstrate a prima facie case that Lanepoint is insolvent and therefore meets the condition for the grant of leave under s 459P(3) of the Act: ASIC v Forestview Nominees Pty Ltd (No 3 ) [2006] FCA 1710 at [53] and ASIC v Eastlands Pty Ltd (No 3) [2006] FCA 1702 at [64] .


case_title: ASIC v Forestview Nominees Pty Ltd (No 3 ) [2006] FCA 1710


case_title: Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514


case_text: summary was adopted with approval by Barrett J in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684 and again on appeal in that case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711 as well as in Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd (2005) 54 ACSR 813.


case_title: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684


case_title: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711


case_text: Lanepoint submits that there is a genuine dispute as to the amount of its indebtedness to WIF. In an appropriate case the Court may exercise its discretion to determine such a dispute rather than to stay the winding-up application to await the curial resolution of the dispute: Ocean City Ltd v Southern Oceanic Hotels Pty Ltd [1993] FCA 86 ; (1993) 10 ACSR 483 at 486-487. A great deal of evidence was adduced in this respect including detailed cross-examination of, amongst others, Mr Carey, Ms Karen Carey and Mr Gregory Nairn, a former senior Lanepoint executive. No suggestion was made that there was other relevant evidence available going to the resolution of this question. If such an alleged dispute is raised and can be resolved during such an application then in my opinion it ought to be. It would only add to the costs of the parties as well as to the public to put it off. Lanepoint submits that the affidavit of ASIC's expert, Mr Honey, sworn on 27 October 2006 confirms the following: (i) The work in progress on the Regency Motel redevelopment was, as at 31 January 2006, about $7 million. That work in progress is also estimated by Ernst & Young at $6,544,235 according to the affidavit of Mr Fraser, one of Lanepoint's receivers, sworn on 11 March 2008, based on information provided but that the Receiver and Managers were not able to determine the final quantum of renovation costs." (ii) In relation to liabilities as at 31 January 2006, the Suncorp Metway loan stood at $4,855,000 and WIF at $2,267,000. (iii) There were intercompany loans to Westpoint, Keypoint and Keyworld at $864,000 but there were other sources of finance of some $700,000


case_title: Powell v Fryer (2000) 18 ACLC 480

case_text: commercial solvency of a company is not proved by merely looking at its accounts and making a mechanical comparison of its assets and liabilities. Insolvency is a question of fact falling to be decided as a matter of commercial reality in light of all the circumstances with things being viewed as it would be by someone operating in a practical business environment: Powell v Fryer (2000) 18 ACLC 480 at [9]. The background is uncontroversial and the following is taken substantially from ASIC's closing submissions. Lanepoint redeveloped the Regency Motel site on Great Eastern Highway, Rivervale in Western Australia. This was financed, in part, by secured funds obtained from Suncorp Metway Limited and Westpoint Management Pty Ltd as responsible entity for the Westpoint Income Fund ("WIF"). Westpoint Management was a related or associated company within the Westpoint Group and WIF was a managed investment scheme, which raised funds from the public for use in relation to Westpoint Group projects. The first stage of the Regency Motel redevelopment was undertaken for Lanepoint by Westpoint Constructions Pty Ltd. As a result of the redevelopment 40 strata title lots were almost completed for sale and one lot was left vacant for the second stage. Adjacent to the redeveloped property are three lots, which were proposed for the third stage.


case_text: This is not a case in which there were specific aspects of the appellant's account that may have been open to doubt and as to which the Tribunal was found to ask the appellant to explain: SZBEL at [47]. Rather, as I have said, the reasons given by the Tribunal addressed gaps in the applicant's evidence. It was for him to give his full account and for the Tribunal to determine whether to accept it: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .


case_text: Reference was also made to the observations of Dixon J in Avon Downs Pty Limited v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. 78 I have already found that the Tribunal's conclusion was affected by a mistake of law and a failure to take into consideration an aspect of the claim that the Tribunal was required to consider. I do not consider that it is necessary to proceed to determine whether this also amounts to irrationality or illogicality in the sense referred to in the authorities. 79 There is sufficient merit in the appellant's submissions to permit the grant of leave to raise this ground. However, I do not propose to decide the appeal on this basis.


case_text: Without departing from the principles stated by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, and by a Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424, a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 commented on the practice of raising arguments for the first time on appeals in migration matters.


case_text: What the Tribunal was required to do to complete the exercise of its jurisdiction was to apply the "real chance test" that was stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. It was for the decision-maker to determine whether the past events relied upon by the appellant gave rise to a likelihood of future harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 at [3] .


case_title: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1


case_text: In my view, the "issues" which the appellant identifies do not fall within the principle stated in SZBEL. Rather, they are either gaps in the appellant's account of his claim or part of the mental processes of the Tribunal. The Tribunal member was not required to disclose them to the appellant: SZBEL at [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration & Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 at [89] .


case_text: It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the appellant's case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [57].


case_text: It is well established that in determining whether the persecutory conduct claimed by an applicant amounts to serious harm, the Tribunal is under a duty to consider the "totality of the case put forward": NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [54] [62]; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]; Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] . In doing so, it must consider each integer of the claims: VTAO at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.


case_title: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244


case_title: Minister for Immigration & Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162


case_title: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559


case_text: This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].


case_text: The fifth ground is illogicality in the sense referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] , ie. that the satisfaction of the decision-maker was based on findings which were not supported by logical grounds. 76 Grounds 3 and 4 sufficiently dispose of the appeal. It is therefore unnecessary for me to consider the fifth ground. This is that the satisfaction of the decision-maker was based on the findings of fact which were not supported by probative material or logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [37] [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] [37]; Eshetu at [131] [145].


case_outcome: discussed

case_text: The second proposed ground is said to be a breach of s 91R(1) of the Act. The appellant contends that the Tribunal was in error of failing to find that the confiscation of the appellant's land amounted to persecution for a Convention reason. The appellant also contends that the Tribunal failed to consider the question of state protection ie. that state acquiescence in the use of private power may constitute persecution for a Convention reason: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1. 25 The third ground is failure to properly apply the provisions of s 91R(2) of the Act. In particular, the appellant contends that the Tribunal's finding that he did not suffer serious harm was flawed by a failure to consider the cumulative effect of various matters including the confiscation, his arrest and mistreatment and his inability to pursue his compensation claim. 26 The fourth ground is related to the second and third grounds. It is that the Tribunal failed, either actually or constructively, to exercise its jurisdiction under s 414 of the Act. In particular, the appellant contends that the Tribunal failed to consider the issue of state protection and the cumulative effect of the matters referred to in the third ground. 47 The essence of the appellant's submission is that the Tribunal misapplied the law because in making this finding it failed to appreciate that persecution may result from the conduct of private persons and the state or its agents: Khawar at [30] per Gleeson CJ. 48 As the Chief Justice observed in Khawar at [30] [31], tolerance or condonation by the state of the criminal conduct of private persons resulting in the withholding of protection may amount to persecution on one of the Convention grounds. 49 However, the difficulty with the appellant's submission on this ground of appeal is that it focuses upon the issue of the state's apparent acquiescence in the act of confiscation without addressing the question of whether the act of confiscation amounted to serious harm. 50 The confiscation of the appellant's land was the starting point of his claim to have a well-founded fear of persecution. It was an essential part of the claim but it was not to be considered in isolation. 62 In my opinion, the substance of the appellant's complaint is similar to that which was made in Khawar . It is that he suffered serious harm, albeit economic harm, that he is unable to take action to redress that harm without threat to his life or liberty because of the involvement of state authorities in the infliction of the harm, and that this amounts to persecution by those authorities: Khawar at [79] [80]. 63 The necessary Convention nexus is said to be imputed political opinion or membership of a particular social group, namely dispossessed farmers from the Fuqing Economic Zone. 64 In accepting that the appellant's mistreatment following the demonstration was serious enough to amount to persecution, the Tribunal must be taken to have formed the view that the appellant had suffered serious harm. But it failed to deal with the relationship between these events and the initial act of confiscation which it apparently regarded as a criminal act by the local government and the developers.


case_text: Grounds 3 and 4 sufficiently dispose of the appeal. It is therefore unnecessary for me to consider the fifth ground. This is that the satisfaction of the decision-maker was based on the findings of fact which were not supported by probative material or logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [37] [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] [37]; Eshetu at [131] [145].


case_text: As Weinberg J said in MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] , the Tribunal was bound to consider each incident of alleged persecution, not merely in isolation but also in conjunction with the others. An act that might not amount to persecutory conduct involving serious harm when viewed in isolation may do so when considered in its full context. 55 In my opinion, the essential error in the Tribunal's decision is that it failed to consider the appellant's claims in their totality. In doing so, it failed to complete the exercise of its jurisdiction. 56 This error appears from a careful, but not over-zealous reading of the Tribunal's findings and reasons set out at pp 13 and 14 of its decision. 67 It is true that "overall, based on the evidence" the Tribunal was satisfied that the appellant's fear was not well-founded. But the difficulty with this statement is that it appears after the Tribunal had considered each step in the claim in isolation and without considering the impact of state involvement in the conduct: MZWPD at [72] [73].


case_text: It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the appellant's case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [57]. 69 This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].


case_title: NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59


case_text: This ground of review is based upon the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The High Court characterised this species of error as a failure to accord procedural fairness. 23 The issues in relation to which the Tribunal is said to have denied the appellant procedural fairness are: • whether the appellant had an ongoing interest in pursuing the compensation claim; • whether the appellant avoided protest activities or the pursuit of his compensation claims after he was released from detention because he feared harm from the authorities; • whether the appellant's relatives had been arrested or had experienced harm, or were likely to, for lodging an appeal in the compensation claim. 31 The principles of procedural fairness which the High Court identified in s 425 of the Act are as follows: But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". ... unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. See SZBEL at [35]-[36]. 36 The High Court accepted in SZBEL at [35] that it is open to the Tribunal to identify additional issues to those identified by the original decision-maker. Two questions therefore arise. First, are the "issues" to which the appellant refers issues in the sense stated in s 425 of the Act? Second, if so, did the Tribunal sufficiently identify them? 37 It seems to me that the effect of the High Court's explanation of the statutory scheme is that the issues to which s 425 refers are particular factual aspects of an applicant's claim in respect of which the Tribunal is not persuaded when it extends to an applicant an invitation to attend the hearing: SZBEL at [34] [40]. 38 In some cases everything may be in issue; in others, the issues may be specific aspects of the material that is already before the Tribunal: SZBEL at [36], [47]. 39 Here, although the delegate did not make express reference to the three "issues", it is apparent from the strong terms in which he rejected the claim that the appellant should have been sufficiently on notice that the entirety of his factual account was in issue in the review. 40 Moreover, the exchanges between the appellant and the Tribunal were in my view sufficient to bring home to the appellant that the entire factual basis of his claim was in issue. The Tribunal member said in plain terms on several occasions that he did not understand how the confiscation of the appellant's land in 1992 was relevant to his claim to have a well-founded fear of persecution when he left China in December 2004. 42 Nevertheless, the Tribunal's questions and the apparent testiness of the Tribunal member's remarks in the second excerpt must have put the appellant on notice that the foundation of his claim was in issue. It is well-established that it is for an applicant to make out his or her claims: SZBEL at [40]. That was what the Tribunal's questions called for. 43 In my view, the "issues" which the appellant identifies do not fall within the principle stated in SZBEL. Rather, they are either gaps in the appellant's account of his claim or part of the mental processes of the Tribunal. The Tribunal member was not required to disclose them to the appellant: SZBEL at [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration & Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 at [89] . 44 This is not a case in which there were specific aspects of the appellant's account that may have been open to doubt and as to which the Tribunal was found to ask the appellant to explain: SZBEL at [47]. Rather, as I have said, the reasons given by the Tribunal addressed gaps in the applicant's evidence. It was for him to give his full account and for the Tribunal to determine whether to accept it: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .


case_text: The effect of the appellant's submission in the present proceeding is that the Tribunal failed to identify the third, fourth and fifth reasons for rejecting the appellant's claims, which I have set out at [12] to [14], as issues arising on the review. The appellant submits that this has the effect of stultifying the operation of the legislative scheme to provide natural justice embodied in Part 7 , Division 4 of the Act: SZFDE v Minister for Immigration & Citizenship (2007) 81 ALJR 1401 at [32] and [49]. 33 It is an agreed fact between the parties that at the hearing before the Tribunal on 17 November 2006, the Tribunal member did not ask the appellant whether: • he had an ongoing interest in pursuing the compensation claim after his release from detention; • he avoided protest activities or the pursuit of his compensation claim after his release from detention because he feared harm from the authorities; • his relatives had been arrested or had experienced any harm for lodging an appeal in respect of his compensation claim. 34 These "issues" correspond to the third, fourth and fifth reasons given by the Tribunal for rejecting the appellant's claim. It may therefore be accepted that the Tribunal considered them to be dispositive of the application.


case_text: What the Tribunal was required to do to complete the exercise of its jurisdiction was to apply the "real chance test" that was stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. It was for the decision-maker to determine whether the past events relied upon by the appellant gave rise to a likelihood of future harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 at [3] . 73 As Gleeson CJ and Kirby J said in VBAO at [3], the decision-maker is required to consider the likelihood of future persecution that involves serious harm, and one instance of this is a threat to a person's life or liberty. 74 Although the Tribunal came to the view that there was no real likelihood of such a threat, it did so without considering all the integers of the claim. It is well-established that this vitiates the purported exercise of the power. 75 I propose therefore to grant leave to raise grounds 3 and 4 and to allow the appeal on that basis.


case_title: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332