case_title: El Greco Australia Pty Limited v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296

case_text: The protection offered to a carrier who delivers cargo on production of the bill of lading is the result of centuries of mercantile practice and the development of the law merchant. The usual terms of a bill of lading expressly provide that, on production of an original, the others will be void and the terms of the contract of carriage embodied in the bill will be accomplished. As Lord Bingham of Cornhill stated in JI MacWilliam Co Inc v Mediterranean Shipping Co SA ("The Raphaela S") [2005] 2 AC 423 at 443F-G [4(6)] this endorsement is in the "time honoured form" of a bill of lading (a description he noted had been used by Lord Phillimore over 80 years before in The Malborough Hill v Alex Cowan & Sons Ltd [1921] 1 AC 444, 453). Lord Bingham referred to the decision of the Full Court of this Court in El Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296 at 374; [2004] 2 Lloyd's Rep 537 at 593 which reproduced the front of a bill as an example of the now standardised wording of this important mercantile instrument (which, as Lord Bingham said, could have immaterial differences of wording).


case_outcome: cited

case_text: In The Raphaela S [2005] 2 AC 423 the House of Lords held that a straight bill of lading required delivery of the cargo by the master in the same way as a negotiable bill. As Lord Bingham said ( The Raphaela S [2005] 2 AC at 444G-H [6]; see too at 457-458 [45] per Lord Steyn; see also my judgment in Hilditch Pty Ltd v Dorval Dauin KK (No 2) (2007) 245 ALR 125 at 133 [25]-[31]): "... the shipper will not wish to part with an original bill to the consignee or buyer until that party has paid, and requiring production of the bill to obtain delivery is the most effective way of ensuring that a consignee or buyer who has not paid cannot obtain delivery. In this case, therefore, as in the case of an order bill, the bill is 'a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be': Sanders Bros v Maclean & Co 11 QBD 327 , 341, per Bowen LJ."


case_outcome: followed

case_text: The protection offered to a carrier who delivers cargo on production of the bill of lading is the result of centuries of mercantile practice and the development of the law merchant. The usual terms of a bill of lading expressly provide that, on production of an original, the others will be void and the terms of the contract of carriage embodied in the bill will be accomplished. As Lord Bingham of Cornhill stated in JI MacWilliam Co Inc v Mediterranean Shipping Co SA ("The Raphaela S") [2005] 2 AC 423 at 443F-G [4(6)] this endorsement is in the "time honoured form" of a bill of lading (a description he noted had been used by Lord Phillimore over 80 years before in The Malborough Hill v Alex Cowan & Sons Ltd [1921] 1 AC 444, 453). Lord Bingham referred to the decision of the Full Court of this Court in El Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296 at 374; [2004] 2 Lloyd's Rep 537 at 593 which reproduced the front of a bill as an example of the now standardised wording of this important mercantile instrument (which, as Lord Bingham said, could have immaterial differences of wording). 15 In The Raphaela S [2005] 2 AC 423 the House of Lords held that a straight bill of lading required delivery of the cargo by the master in the same way as a negotiable bill. As Lord Bingham said ( The Raphaela S [2005] 2 AC at 444G-H [6]; see too at 457-458 [45] per Lord Steyn; see also my judgment in Hilditch Pty Ltd v Dorval Dauin KK (No 2) (2007) 245 ALR 125 at 133 [25]-[31]): "... the shipper will not wish to part with an original bill to the consignee or buyer until that party has paid, and requiring production of the bill to obtain delivery is the most effective way of ensuring that a consignee or buyer who has not paid cannot obtain delivery. In this case, therefore, as in the case of an order bill, the bill is 'a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be': Sanders Bros v Maclean & Co 11 QBD 327 , 341, per Bowen LJ." 16 The House of Lords followed decisions, that straight bills of lading were documents of title, given earlier by the Court of Appeal of Singapore in APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481 at [55]; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707, the Court of Appeal of Rennes, France in The MSC Magallanes (2002) 631 DMF 952 and a Dutch Court in an unreported 1997 decision The Duke of Yare (unreported) 10 April 1997, ARR-RechtB Rotterdam (see The Raphaela S [2005] 2 AC at 449-450 [21]). Lord Bingham said that this result followed from the express words in the bill that it had to be presented to obtain delivery of the goods: The Raphaela S [2005] 2 AC at 449 [20]; 457-458 [45]-[47] per Lord Steyn. 17 The House of Lords held in The Raphaela S [2005] 2 AC 423 that a straight bill was "a bill of lading or any similar document of title" because it was a document of title within the meaning and for the purposes of Art I(b) of the Hague-Visby Rules: The Raphaela S [2005] 2 AC at 450 [22] per Lord Bingham, 458 [46] per Lord Steyn, 460-461 [57], 465 [70] and 466 [78] per Lord Rodger of Earlsferry, 451 [26] per Lord Nicholls of Birkenhead and 466 [79] per Lord Brown of Eaton-under-Heywood agreeing. And in BHP Trading Asia Ltd v Oceaname Shipping Ltd (1996) 67 FCR 211 at 222E-F, 223E Hill J appeared to recognise that a straight bill of lading was a document of title giving the right to call for delivery of the cargo at the port of destination. 22 That decision of the Supreme People's Court is entitled to the greatest respect as both the decision of the highest court of a great maritime nation and because of its erudite reasoning. However, I am satisfied that the Supreme People's Court's decision is distinguishable from the present case. First, there is no suggestion, in this case, that the bills of lading here permit the carrier, Beluga, to deliver the cargo except on production of an original. Secondly, that judgment was given prior to the decision in The Raphaela S [2005] 2 AC 423. I do not think that the Supreme People's Court's decision was intended to have a wider operation than dealing with the status of a straight bill of lading, the proper law of which was that of the United States of America. However, if it did, I prefer to follow the reasoning in The Raphaela S [2005] 2 AC 423. And, in any event, the provisions of the Carriage of Goods by Sea Act 1991 (Cth) are binding on me and provide that a straight bill is a sea carriage document for the purposes of the amended Hague Rules. 23 Here, the commercial possibility has not been excluded that an original bill of lading has gone, or may get, into the hands of a third party who is not before the Court. In that situation, I am of opinion that the Sheriff should not be put at risk, nor should the Court itself be put at risk, of committing a conversion of the goods by agreeing to vary orders made on the appropriate and conventional basis that original bills of lading be produced for the discharge of cargo from the Sheriff's custody. 24 I suggested to the parties that one possible solution worthy of their consideration may be that the Court could order redelivery of the cargo to the person from whom it came, namely the master of the MV Beluga Fantastic , by his agents, and that thereafter the master could take such commercial risks, if at all, as he saw fit in causing the cargo to be delivered under whatever commercial arrangements the parties wished to make. However, that suggestion was not taken up by the parties.


case_title: Neilson v Overseas Projects Corp [2005] HCA 54 ; (2005) 223 CLR 331

case_text: I am of opinion that the same result must follow here. There is no evidence of the provisions on the reverse of the bills of lading for the cargo held by the sheriff. There is also no evidence that India is a party to the Hague Rules or other international conventions referred to in the Carriage of Goods by Sea Act 1991 (Cth). (India appears to have enacted similar provisions to the Hague Rules in The Indian Carriage of Goods by Sea Act 1925 (India) and to have included in the Schedule to that Act Rules Relating to Bills of Lading containing a similar definition of a contract of carriage in Art I(b) of the Hague-Visby Rules.) For present purposes I assume that Indian law is the same as Australian law in accordance with the presumption that foreign law is the same as that of the law of the forum ( lex fori ): Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; (2005) 223 CLR 331 at 343 [16] per McHugh J, 370 [115], 372 [125] per Gummow and Hayne JJ, 411 [249] per Callinan J and 420 [275] per Heydon J, cf the dissenting view of Kirby J at 396 [202] and Cross on Evidence (7 th Aust ed, Butterworths, 2004) at [41005]. 19 The amended Hague Rules in Schedule 1A of the Carriage of Goods by Sea Act 1991 apply by force of Arts 10(2) and (3) to this cargo unless the original Hague Rules, (referred to in the Act as the "Brussels Convention" ) the Hague-Visby Rules, the SDR protocol or the Hamburg Rules apply by agreement or law. There is no evidence of any provision that ousts the application of the amended Hague Rules. 20 On the material before me, the bills of lading here are documents within the meaning of a "sea carriage document" in the amended Hague Rules. That definition includes both "a bill of lading that, by law, is not negotiable" (Art 1(1)(g)(iii)) and a "non-negotiable document ... that either contains or evidences a contract of carriage of goods by sea": (Art 1(1)(g)(iv)).


case_title: The Duke of Yare (unreported) 10 April 1997 ARR-RechtB Rotterdam

case_text: The House of Lords followed decisions, that straight bills of lading were documents of title, given earlier by the Court of Appeal of Singapore in APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481 at [55]; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707, the Court of Appeal of Rennes, France in The MSC Magallanes (2002) 631 DMF 952 and a Dutch Court in an unreported 1997 decision The Duke of Yare (unreported) 10 April 1997, ARR-RechtB Rotterdam (see The Raphaela S [2005] 2 AC at 449-450 [21]). Lord Bingham said that this result followed from the express words in the bill that it had to be presented to obtain delivery of the goods: The Raphaela S [2005] 2 AC at 449 [20]; 457-458 [45]-[47] per Lord Steyn.


case_title: APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707


case_title: The MSC Magallanes (2002) 631 DMF 952


case_title: The Malborough Hill v Alex Cowan & Sons Ltd [1921] 1 AC 444


case_text: the time the Heads of Agreement was entered into, there were outstanding matters between the parties in the specialist workers compensation tribunals and courts in the State of South Australia. As a result of the parties entering into of the Heads of Agreement, various steps were carried out in relation to those matters. Later, the applicant sought to have those acts or their effects reversed on the ground that the respondent had been guilty of fraud and misrepresentation. His attempts were unsuccessful: Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 ; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76. There is no dispute that the respondent paid the moneys it was liable to pay under the Heads of Agreement.


case_title: Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76


case_text: 12 November 2008, the applicant applied for an order that I disqualify myself from further involvement in this proceeding. On 4 December 2008, I made an order dismissing his application: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. The grounds upon which the applicant sought such an order and my reasons for refusing his application are set out in my reasons. On 3 February 2009, Mansfield J refused an application by the applicant for leave to appeal from my decision: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 48.


case_title: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 48


case_text: late 2008 and early 2009, I was also dealing with another proceeding involving the applicant. That proceeding involved an appeal by the applicant under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") against a decision of the Administrative Appeals Tribunal. On 8 December 2008, the applicant made an application that I disqualify myself from further involvement in that proceeding. I refused the application: Kowalski v Repatriation Commission [2008] FCA 1970. The grounds of the application and the reasons I refused it are set out in my reasons. I proceeded to hear his appeal on the substantive proceeding. On 30 January 2009, Mansfield J refused the applicant's application for leave to appeal from my decision: Kowalski v Repatriation Commission [2009] FCA 47. The applicant claims that when, on 4 December 2008, I dismissed his first application in this proceeding that I disqualify myself for bias, I made an order for costs against him, even though "the respondent did not seek an order for costs against [him]" and by making the order I was assisting a wrongdoer and a party who had committed a criminal offence. The applicant claims that that conduct is indicative of bias. That contention is untenable. I refer to my reasons in Kowalski v Repatriation Commission [2008] FCA 1970 at [4] - [5] which deals with the same contention made in that case. The applicant's application by notice of motion dated 4 August 2009 is dismissed. In the second notice of motion brought by the applicant after I had reserved my decision on the two notices of motion referred to in [2]-[6] above, that being a notice of motion dated 18 July 2009, the applicant seeks various declarations in the proceeding. The declarations he seeks in the notice of motion are as follows, relevantly: On 27 October 1998 the respondent agreed to pay the defendant and his wife compensation, in the sum of $125,308.57, for the defendant's December 1986 eye injury, May 1998 middle finger injury, May 1989 back and or left leg injury, August 1991 stress or mental breakdown and December 1997 heart attack. On 27 October 1998 the defendant entered into Heads of Agreement with the defendant and his wife without the consent of the WorkCover Corporation of South Australia. On 27 October 1998 the defendant did not make a capital payment to the plaintiff or his wife which had redeemed the defendant's statutory liability to the plaintiff, to make weekly payments of compensation to the plaintiff, compensation under section 32 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) or a capital payment for the loss of the plaintiff's future earning capacity. On 27 October 1998 the plaintiff did not receive competent professional advice about the consequences of the plaintiff and his wife entering into the Heads of Agreement with the defendant. On 27 October 1998 the plaintiff did not receive competent financial advice about the investment or use of the money that he and his wife was going to receive from the defendant as a consequences [sic] of entering into the Heads of Agreement. On 27 October 1998, before the defendant entered into the Heads of Agreement with the plaintiff and his wife, the defendant did not consult with the WorkCover Corporation about the terms of the Heads of Agreement. On 27 October 1998 the defendant did not ensure that a recognized medical expert certified that the extent of the plaintiff's incapacity, resulting from his December 1986 eye injury, May 1998 middle finger injury, May 1989 back and or left leg injury, August 1991 stress or mental breakdown and December 1997 heart attack, could be determined with a reasonable degree of confidence."


case_text: late 2008 and early 2009, I was also dealing with another proceeding involving the applicant. That proceeding involved an appeal by the applicant under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") against a decision of the Administrative Appeals Tribunal. On 8 December 2008, the applicant made an application that I disqualify myself from further involvement in that proceeding. I refused the application: Kowalski v Repatriation Commission [2008] FCA 1970. The grounds of the application and the reasons I refused it are set out in my reasons. I proceeded to hear his appeal on the substantive proceeding. On 30 January 2009, Mansfield J refused the applicant's application for leave to appeal from my decision: Kowalski v Repatriation Commission [2009] FCA 47.


case_text: his present motion, the applicant claims that the fact that I proceeded to hear his appeal in the proceeding involving the Repatriation Commission before his application for leave to appeal was determined was proof of bias. That contention is untenable. Having determined that there were no grounds upon which I should disqualify myself, it was appropriate that I proceed to hear and determine the appeal in the substantive proceeding. I have since delivered judgment in that proceeding in which I dismissed the applicant's appeal: Kowalski v Repatriation Commission [2009] FCA 794. The applicant claims that that is a further ground upon which I should disqualify myself in this proceeding because in dismissing his appeal in the proceeding involving the Repatriation Commission I have "fabricated [my] decision". That contention is also untenable. The two proceedings are quite separate and the issue in the proceeding involving the Repatriation Commission was whether there was a question of law (and error of law) within s 44(1) of the AAT Act. The applicant further asserts that I should disqualify myself because I said in my decision on the appeal in that proceeding that I would hear the parties on the question of costs and yet (he claims) I did not hear him. The applicant's submission is untenable. The applicant was given notice of the date and time at which judgment would be handed down. On that date, I announced that I would dismiss the appeal and hear the parties on the question of costs. The applicant was not in attendance. The respondent applied for what was the usual order for costs and I decided that it was appropriate to make such an order.


case_text: reasons of Bleby J for making those orders are set out in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. With that background, I turn to the allegations in the amended statement of claim. I bear in mind that the applicant appeared before me in person and it appears that he prepared the amended application and the amended statement of claim. The first substantive allegation made by the applicant in the amended statement of claim is that under clause 3.4 of the Heads of Agreement, the respondent was required "to prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission". It is alleged that the respondent "deliberately and consciously" failed (and the failure continues) to prepare and execute a notice of settlement under s 23 of the Health and Other Services (Compensation) Act 1995 (Cth) ("Health and Other Services Act") and a "South Australian Workers Compensation Tribunal Form 5 Standard Minutes of Order". As to the latter document, the applicant claims, as I understand it, that the respondent was required by the Workers Compensation Tribunal Rules 1996 to lodge such a document. The amended statement of claim then contains quotes from the reasons for judgment of Bleby J (previously referred to) and a letter from Medicare Australia to the applicant dated 4 August 2008. The quote from the letter dated 4 August 2008 omits certain small passages and I include those passages in the quote set out below: (1) The reasons of Bleby J: "The plaintiff claims that it did not accept, at the time of the mediation, that it had any outstanding liability to the defendant in relation to work-related injuries except as follows: 1. $3,000.00 damages payable in respect of the eye injury; $289.60 for non-economic loss resulting from a 2% loss of function of the right middle finger; 3. $122.00 for medical expenses (Mr Wicks); 4. $33.00 for medical expenses (Dr Hughes); 5. $657 WCT costs order 20 December 1996 ; and 6. $613 WCAT allocatur for costs 1 August 1997. ... Importantly, the plaintiff denied it had any liability pursuant to the Compensation Act to pay the defendant weekly income maintenance and thus never sought to redeem any such liability via the mediated settlement or indeed at all. ... The mediation occurred on 26 October 1998 and was presided over by an experienced and well-respected Queen's Counsel. Ms Layton QC and Mr R Bönig represented Mitsubishi at the mediation." (2) The letter from Medicare Australia to the applicant dated 4 August 2008: "At the request of Senator Annette Hurley, Senator for South Australia, Medicare Australia has investigated your claims related to monies you received from Mitsubishi Motors Australia Limited in November 1998. Based on the information I have available to me, I can now confirm that the monies you received in November 1998, relating to an ill health benefit and an ex-gratia payment for permanent disability, are compensation for the purposes of the Health and Other Services (Compensation) Act 1995 . Further, I can confirm that Mitsubishi Motors has provided Medicare Australia with the required information relating to this claim. I will now investigate what further action needs to be taken to recover any monies owed to the Commonwealth relating to your payment." It is then alleged by the applicant that, in a way which is not specified, it should be concluded from the previous pleas that the respondent has contravened ss 51AC and 52 of the Trade Practices Act , s 58 of the Fair Trading Act and ss 4 , 6 and 8 of the Misrepresentation Act and has acted in bad faith, fraudulently, in breach of trust and has been guilty of misrepresentation and undue influence. The applicant then alleges that the respondent has committed a criminal offence under the Health and Other Services Act. The thrust of the applicant's allegations under this head seems to be that the Heads of Agreement provided for the payments to be made by the respondent with a denial of liability and, in clause 2.2, for an ex gratia payment as compensation for permanent disability impairing the applicant's future earning capacity. As Bleby J's reasons make clear, the respondent's position was that it was not liable to pay compensation to the applicant under the Workers Rehabilitation and Compensation Act 1986 (SA) ("Workers Compensation Act") other than some relatively small amounts with respect to an eye injury and a loss of function to the right middle finger. The respondent's position as to the nature of the payments it was making under the Heads of Agreement was to be contrasted with the conclusion reached by Medicare Australia that the payments under the Heads of Agreement were compensation under the Health and Other Services Act. Leaving aside questions of whether the respondent engaged in conduct in "trade or commerce", of whether, for the purposes of s 51AC of the Trade Practices Act , the conduct was engaged in in connection with the supply or acquisition of goods or services, of whether it is an essential element of any claim by the applicant that an order be made setting aside the Heads of Agreement including an order that the applicant repay the moneys paid thereunder, and of whether the relief claimed is the proper relief and can be granted by this Court, nothing has been put by the applicant in all the material he has put before the Court to suggest the circumstances I have identified could arguably give rise to a characterisation of conduct of the respondent as unconscionable within s 51AC of the Trade Practices Act or misleading or deceptive or likely to mislead or deceive within s 52(1). The respondent had a belief concerning its liability under the Workers Compensation Act. Even if the decision of Medicare Australia that payments made under the Heads of Agreement were compensation for the purposes of the Health and Other Services Act means that the respondent's belief was wrong a proposition which is by no means clear that does not of itself establish that the respondent's conduct was unconscionable or misleading or deceptive or likely to mislead or deceive. The appropriate relief The amended statement of claim does not identify an arguable cause of action which is within the jurisdiction of this Court. As pleaded, the references to s 51AC and s 52(1) of the Trade Practices Act represent no more than a colourable attempt to engage federal jurisdiction. The difficulty in giving judgment on any of the claims under s 31A of the Federal Court of Australia Act 1976 (Cth) is in discerning precisely what claims are being made. It is very difficult to discern where one "claim" ends and another begins.


case_outcome: applied

case_text: my opinion, the appropriate order is an order dismissing the proceeding. There are two possible routes to that conclusion. First, under O 20 r 5 of the Federal Court Rules a proceeding may be dismissed if it is an abuse of the process of the Court. A proceeding is an abuse of process where it is foredoomed to fail: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393 per Mason CJ, Deane J and Dawson J. As presently pleaded, the proceeding is doomed to fail. Not only is the proceeding doomed to fail as presently pleaded, but I am satisfied that there is no claim of the type advanced. The applicant has already amended once and he has put forward a number of affidavits and written submissions in respect of his "claims", all of which I have read carefully. There is no suggestion that he has a claim either at all or at least a claim which would engage the jurisdiction of this Court. The other route to the same conclusion is that I have no doubt that the amended statement of claim does not identify an arguable cause of action and is embarrassing under O 11 r 16 of the Federal Court Rules . It must be struck out. A party faced with such conclusions is often given the opportunity to replead his or her case. However, that opportunity is not always given and ultimately, whether it is given, depends on the circumstances of the case. It is not appropriate to afford such an opportunity in this case. The applicant has had ample opportunity to articulate a case and, in all the material he has put forward, there is nothing to suggest that he has a claim. Conclusion In the circumstances, the amended statement of claim should be struck out and the proceeding dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 3 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms V Heath (16 March 2009) Ms C Gitsham (18 August 2009) Solicitor for the Respondent: Thomson Playford Cutler Dates of Hearing: 16 March, 18 August 2009 Date of Judgment: 3 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/991.html


case_text: s 471B of the Corporations Act prohibits a person beginning or continuing a proceeding against a company in liquidation except with the leave of the Court. The provision ensures that a company in liquidation does not face a multiplicity of legal proceedings that are expensive, time consuming, and potentially unnecessary: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2009] FCA 42 at [17] to [19]. See generally: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd at [30], [32]; Lawless v Mackendrick (No 2) [2008] WASC 15 at [35] ; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42 ; Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Pty Ltd and Ors [2004] NSWSC 406.


case_outcome: distinguished

case_text: these respects, the case is said to be analogous to BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd & Ors (1998) 16 ACLC 1539 where Weinberg J, in granting leave, stated: The amount and seriousness of the claim and the degree and complexity of the legal questions involved all tell in favour of this matter proceeding to judgment rather than being dealt with by proof of claim in the winding up. If leave were refused, and a claim pursued, it is likely that it would be rejected by the liquidator and an appeal from his decision would therefore be initiated in any event ... (at 1544) As to the amount of the claim by Merrill Lynch, the quantum of the applicants' claims is yet to be fully particularised but it includes, according to the statement of claim, the marketable value of each Borrower's mortgaged securities less the amount outstanding to Lift under each of the Borrower's loans. The applicants claim that as at 10 April 2008: (a) the amounts outstanding in respect of the loans made by Lift under the Swaby Agreement, the First Crabb Agreement and the Second Crabb Agreement were $17,614,680.69, $7,783,483.02 and $3,869,520.22 respectively, a total of $29,267,683.93; and (b) the market value of the Borrower's securities mortgaged in favour of Lift to secure the amounts outstanding under the Swaby Agreement, the First Crabb Agreement and the Second Crabb Agreement was $38,540,206.35, $31,284,721.44 and $18,866,221.50 respectively, a total market value of $88,691,149.29. Finally, I note that in BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd, where leave was granted, Weinberg J proceeded on the basis that if leave were to have been refused and a claim pursued, it is likely that it would be rejected by the liquidator and an appeal pursued in any event. That is not this case.


case_title: Commonwealth v Davis Samuel Pty Ltd (No.5) [2008] ACTSC 124

case_text: starting point is that a claimant must lodge a proof of debt unless that person can demonstrate there is good reason to depart from that procedure. The rationale for this approach is that a liquidator's attention and resources should not be diverted by litigation where there is a simpler procedure available, by way of proof of debt, with a right of appeal under s 1321 of the Act: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd (No 5) [2008] ACTSC 124 at [33]. See generally: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd at [30], [32]; Lawless v Mackendrick (No 2) [2008] WASC 15 at [35] ; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42 ; Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Pty Ltd and Ors [2004] NSWSC 406.


case_text: 471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13] . The court's discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 at [9] [15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a "serious question to be tried" as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed).


case_text: for unliquidated damages in contract, and for misleading or deceptive conduct, are admissible to proof in a liquidation: Re Gordon Grant and Grant Pty Ltd at 317; Meehan v Stockmans Australian Café (Holdings) Pty Ltd (1996) 22 ACSR 123 at 128.


case_text: 471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13] . The court's discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 at [9] [15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a "serious question to be tried" as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed). As was stated by McPherson J in Re Gordon Grant and Grant Pty Ltd (and as was approved by the Full Federal Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 555): The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure: at 317E. However it is for Merrill Lynch to demonstrate that one procedure, civil litigation, rather than another, the proof of debt process, is more appropriate in all the circumstances: Re Gordon Grant and Grant Pty Ltd at 317. The starting point is that a claimant must lodge a proof of debt unless that person can demonstrate there is good reason to depart from that procedure. The rationale for this approach is that a liquidator's attention and resources should not be diverted by litigation where there is a simpler procedure available, by way of proof of debt, with a right of appeal under s 1321 of the Act: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd (No 5) [2008] ACTSC 124 at [33]. Claims for unliquidated damages in contract, and for misleading or deceptive conduct, are admissible to proof in a liquidation: Re Gordon Grant and Grant Pty Ltd at 317; Meehan v Stockmans Australian Café (Holdings) Pty Ltd (1996) 22 ACSR 123 at 128. See generally: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd at [30], [32]; Lawless v Mackendrick (No 2) [2008] WASC 15 at [35] ; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42 ; Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Pty Ltd and Ors [2004] NSWSC 406. Merrill Lynch submits that while it may be accepted that the starting position is that there should be good reason to depart from the proof of debt procedure in favour of Court proceedings ( Re Gordon Grant and Grant Pty Ltd at 317E-F; King v Yurisich at [13], 600), each of the first five factors above weighs heavily in favour of the grant of leave in the circumstances of this matter. Courts have dismissed applications for leave to proceed against a company in liquidation under s 471B in circumstances including: (a) where leave is sought in third party proceedings which would slow the liquidation to the pace of an action under the control of others, and where the issues in the third party proceedings are distinct from those in the primary proceedings: Re Gordon Grant and Grant Pty Ltd , 319 320. (b) where the claimant fails to adduce evidence demonstrating any seriousness or complexity to the claim, or the existence of a serious dispute: Nu Life Air Conditioning Pty Ltd v Reef Building Contractors Pty Ltd [2006] NSWSC 1245 at [7] ; (c) where the claimant asserts liability and sought a declaration of entitlement to be paid, of a type provable in liquidation: HP Mercantile v Australian Rural Group [2005] NSWSC 895 at [31] [32]; (d) where the claim is too onerous on a liquidator, even if it may not be capable of resolution by the lodging of a proof of debt: for instance, where the company in liquidation is an insurer, and 'the disruption to the work of the provisional liquidators and the expense which would be occasioned by dealing with [claims] on an ad hoc basis would unduly prejudice the creditors as a whole': Roots v Trussmaster Pty Ltd [2001] QSC 295 at [8] ; (e) where the proceeding would dissipate funds otherwise available to the creditors in circumstances where the liquidators agreed to admit a proof of debt in the entire amount of the claim: Rodgers v Schmierer, In the matter of Reader [2002] FCA 717 at [15] [16].


case_text: have dismissed applications for leave to proceed against a company in liquidation under s 471B in circumstances including: (a) where leave is sought in third party proceedings which would slow the liquidation to the pace of an action under the control of others, and where the issues in the third party proceedings are distinct from those in the primary proceedings: Re Gordon Grant and Grant Pty Ltd , 319 320. (b) where the claimant fails to adduce evidence demonstrating any seriousness or complexity to the claim, or the existence of a serious dispute: Nu Life Air Conditioning Pty Ltd v Reef Building Contractors Pty Ltd [2006] NSWSC 1245 at [7] ; (c) where the claimant asserts liability and sought a declaration of entitlement to be paid, of a type provable in liquidation: HP Mercantile v Australian Rural Group [2005] NSWSC 895 at [31] [32]; (d) where the claim is too onerous on a liquidator, even if it may not be capable of resolution by the lodging of a proof of debt: for instance, where the company in liquidation is an insurer, and 'the disruption to the work of the provisional liquidators and the expense which would be occasioned by dealing with [claims] on an ad hoc basis would unduly prejudice the creditors as a whole': Roots v Trussmaster Pty Ltd [2001] QSC 295 at [8] ; (e) where the proceeding would dissipate funds otherwise available to the creditors in circumstances where the liquidators agreed to admit a proof of debt in the entire amount of the claim: Rodgers v Schmierer, In the matter of Reader [2002] FCA 717 at [15] [16]. The liquidators have said the likelihood is that the Merrill Lynch breach of warranty claim would be admitted to proof as a contingent debt if submitted in the same or similar terms. The likelihood of a proof of debt being admitted is a powerful factor in favour of permitting the proof of debt process to be followed: Rodgers v Schmierer; in the matter of Reader [2002] FCA 717 at [15] - [16] . This would obviate any need for the liquidators to consider the misleading and deceptive conduct claim. These are, together, very significant considerations in the disposition of the motion. Stage to which the proceedings have progressed As I said previously I expect that the trial of the proceedings will likely take place in the first part of next year. There is no suggestion that these proceedings or the proposed cross-claim will delay the completion of the liquidation. Lift has already had a significant degree of involvement in the proceedings.


case_text: some cases, leave should be granted under s 471B because the litigation is a necessary prerequisite to the claimant being able to submit a proof of debt at all: for example, because the primary claim is one for apportionment. The proposed cross-claim is, I accept, not a claim of this type, but rather in effect, a claim for contribution. This is capable of being dealt with by proof of debt: Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134 at 141. Merrill Lynch submits that it would be unreasonable that they, if unsuccessful in the proceedings commenced by the applicants, and the cross-claim was not determined in the proceedings, be later required to proceed with a separate action against the liquidators by way of a proof of debt. Amongst other things, they say that the risk of inconsistency between findings made by this Court in relation to the applicants' claims against Merrill Lynch and findings made by the liquidators in their adjudication of a proof of debt, gives rise to the potential for significant prejudice to Merrill Lynch if they are not granted leave to file the proposed cross-claim. I will now consider the first five factors set out under para [29] above. Amount and seriousness of the claim and complexity of the legal and factual issues


case_text: 471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13] . The court's discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 at [9] [15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a "serious question to be tried" as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed). As was stated by McPherson J in Re Gordon Grant and Grant Pty Ltd (and as was approved by the Full Federal Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 555): The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure: at 317E.


case_text: In this appeal, the Appellant contends that Federal Magistrate Lloyd-Jones erred ( SZDBZ v Minister for Immigration & Anor [2006] FMCA 890) in dismissing on 12 July 2006 an Application for Review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 20 February 2004 and delivered on 11 March 2004 affirming a decision of the Minister's Delegate refusing the Appellant's application for a protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The Appellant's Notice of Appeal recites three grounds which fail to reveal the content or substance of the Appellant's contentions. Nevertheless, the grounds are these: '(a) The magistrate made [a] mistake in law in rejecting the Submissions made by my Lawyer. (b) The magistrate made [a] mistake in law in that the Tribunal had not decided my case correctly. (c) The magistrate made [a] Jurisdictional mistake in law in not holding that I was denied procedural fairness and denied natural Justice.' 3 Mr J M Patel of counsel prepared written submissions on behalf of the Appellant in support of the proceedings before Federal Magistrate Lloyd-Jones and the Appellant relied upon those written submissions in support of the grounds of appeal before this Court. In those submissions Mr Patel addresses three grounds of appeal. The first ground is that the Tribunal made a jurisdictional error in failing to properly construe and apply a correct understanding of the notion of 'persecution' and the elements of a 'well-founded fear' of persecution for the purposes of Article 1A(2) of the 1951 Convention relating to the Status of Refugees ('the Convention') as amended by the 1967 Protocol relating to the Status of Refugees ('the Refugees Protocol') for the purposes of s 65(1) of the Act.


case_text: The statutory obligation of the Tribunal upon a reconsideration is to assess the scope and content of the Appellant's claims to determine, on all the material properly before the Tribunal, whether the Tribunal can be affirmatively satisfied that the Appellant holds a well-founded fear of persecution for a Convention reason. Notwithstanding that the Tribunal constituted by a Tribunal member other than Mrs Nicholls previously accepted aspects of the version of events asserted by the Appellant, Mrs Nicholls was obliged to discharge the statutory jurisdiction by examining the claims and reaching or failing to reach, the required degree of satisfaction. If not satisfied of the relevant matters, Mrs Nicholls was bound to 'refuse to grant the visa' (s 65(1)(b)) of the Act). In so approaching the matter, the Tribunal acted correctly and within jurisdiction and in a manner consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.


case_title: Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73


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


case_outcome: referred to

case_text: The appellant contended that the Tribunal's conclusion concerning the credibility of the applicant in some way affected its reasoning in relation to the claim to fear persecution by reason of membership of a particular social group. However, there is no reason why the Tribunal cannot deal with those contentions in the alternative. That is to say, it would be open for the Tribunal to deal with the claim that the applicant was a member of a particular social group on the assumption that his evidence were to be accepted. It would not be illogical for the Tribunal, having reached an unfavourable conclusion on that question, to express unfavourable views on the credibility of the applicant (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [26] and [29]. That is in effect the approach adopted by the Tribunal. 36 That is to say, the Tribunal examined the applicant's claims on the basis that the assertions made by him were true. The Tribunal concluded that, even if all of the assertions made by the applicant were true, it was not persuaded that he had a well founded fear of persecution by reason of his membership of a particular social group. As formulated by counsel for the appellant, the alleged group consisted of working families with children who were non-combatants in the civil war between the Maoists and the Government. The Tribunal characterised the formulation of the alleged group consisting of people caught between the Maoists and the Government as being too amorphous to be considered further. The Tribunal made no error in concluding that the general population, who feared harm as a result of the struggle between the Maoists and the authorities, could not properly be characterised as a particular social group that was singled out for persecution. 37 Even on the applicant's evidence, there was no suggestion that non-combatants in the civil war are persecuted by reason of the fact that they are non-combatants in the civil war, whether or not they are members of families. It is, of course, appalling that innocent people might be severely harmed in circumstances where they do not wish to have any part to play in the fight between Maoists and government authorities. Nevertheless, there was no suggestion by the applicant that he was targeted simply by reason of his being a non-combatant in that conflict. Even if he and the appellant were innocent victims of the conflict, that would not be sufficient to attract the Refugees Convention. There would be no fear of harm for a Convention reason. Even if the applicant's evidence were accepted, it would not constitute a basis for concluding that he may be subjected to harm by reason of an imputed political opinion.


case_text: The second and third respondents argued in the alternative that, in any event, the assignment of a cause of action should be struck down as against public policy. It was submitted that the deed purported to sell a cause of action which was against public policy and amounted to champerty: Magic Menu Systems Pty Ltd v AFI Facilitation Pty Ltd (1997) 72 FCR 261. 22 It was submitted that the present situation differs from that of a litigation funder who would provide funds for the action in exchange for a percentage of the proceeds, because in this case the cause of action was being transferred and was being pursued by someone other than the person to whom the cause of action originally accrued. It was alleged that this was a case of buying and selling causes of action.


case_text: The tort of champerty was abolished in this State in 1995. It would therefore be inappropriate to strike out a proceeding because there had been an assignment of a cause of action from one trust to another. It may be, as was suggested in Gore v Justice Corporation [2002] FCA 354 ; (2002) 119 FCR 429, that a particular agreement might be still contrary to public policy, but that would not be decided on an application of this kind and in the absence of evidence.


case_text: In relation to their third argument, the second and third respondents submitted, relying on Chapman v Luminis (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62, that as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned. It was contended that the wording of the assignment purported to assign a bare right to sue, which is not an assignable interest. That is less clear and, in my opinion, may not be decided, again without evidence, on an application of this kind.


case_title: Pritchard v Racecage (1997) 72 FCR 203


case_title: Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540


case_text: At the resumed hearing, the applicant proceeded upon the Notice of Appeal and abandoned any reliance upon the application for the constitutional writs. Of course, in doing so, the applicant was thereby confined to an appeal on a question of law: s 44(1) of the AAT Act. Moreover, he was confined to a question of law which involved jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. If there were an error of law which was not jurisdictional in character it could not be challenged or appealed against, reviewed, quashed or called into question in this Court: s 474(1) of the Act. The appellant's counsel accepted the burden of establishing jurisdictional error as a prerequisite to success on this appeal. 27 The respondent did not contend that the appeal was out of time: s 44(2A)(a) of the AAT Act. Indeed, the respondent expressly conceded that the appeal was brought within time. 28 The Act empowers the Minister or the Minister's delegate to cancel a visa that has been granted to a person if the Minister or the delegate reasonably suspects that the person has not passed the character test and the person does not satisfy the Minister or the delegate that the person passes the character test: s 501(2) of the Act.


case_text: In his written submissions to this Court the applicant's counsel submitted that paragraph 2.3(c) of Ministerial Direction No. 21 'incorporates Australia's obligations under the United Nations Convention of the Rights of the Child: see the decision in Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273'. 67 However, in his oral submission the applicant's counsel contended that there was a wider obligation imposed upon the AAT than that contained in paragraph 2.3(c) of Ministerial Direction No. 21. The wider obligation arises because Australia is a party to the Convention on the Rights of the Child and, it was submitted, bound to treat the best interests of the child as a primary consideration in all cases concerning children. Thus it was put because of that international obligation the decision maker has to have regard to the interests of any child whether or not there is a parental or close relationship as required in paragraph 2.3(c) of Ministerial Direction No. 21. For that submission, the applicant's counsel again relied upon Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 (' Teoh '). 68 In that regard, his oral submissions contradicted his written submissions. Nevertheless, I will deal with the submission. 69 Article 3(1) of the United Nations Convention on the Rights of the Child states: '1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.' 89 Allsop J said at 471: '70 By reason of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ) it was incumbent upon the Minister, in order to accord procedural fairness to Mr Perez, that if he were proposing to make a decision on a basis other than that the best interests of the children to be affected by the decision were a primary consideration, he would have to inform Mr Perez of that, and he would have to provide Mr Perez with an adequate opportunity of presenting a case against the taking of such a course: Teoh , supra at 291-92, 302, 304-5; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. No such notice was given by the Minister or the department to Mr Perez. Therefore, if the interests of Mr Perez's three children and one step-child were not treated as a primary consideration in the making of the decision, that is that the decision was made on a basis other than that their best interests to be affected by the decision were a primary consideration, the decision was flawed and liable to be set aside under the AD(JR) Act . I should add that Mason CJ and Deane J had expressed their views in Teoh , supra at 291-2, on the basis of the existence of a legitimate expectation, absent statutory or executive indications to the contrary. No such contrary indications were pointed to here.' 90 Allsop J was applying the decision in Teoh . That decision was relevant because there were no statutory or executive indications contrary to the proposition that the best interests of Mr Perez' children ought to be a primary consideration. 91 Allsop J concluded that there was sufficient material before the Minister to enable him to take into account as a primary consideration the best interests of the children who might be affected and there was no evidence that the Minister had not done so. That part of the application failed. 92 Later, in his reasons, Allsop J dealt with a submission that the interests of Mr Perez' children were not taken into account as a primary consideration in respect of a further decision. Allsop J reasoned that where a delegate was obliged to take into account as a primary consideration the interests of children, the delegate should first identify for himself or herself those interests. There can be no doubt that logically that must be so but, as his Honour said, this is not some inflexible rule of law, or requirement for mechanical incantation. In my opinion, Perez is not authority for the proposition advanced by the applicant's counsel. As I have already mentioned, Perez was decided in circumstances where the decision maker did not have the executive instruction contained in Ministerial Direction No. 21.


case_text: At that time the statutory discretion to grant or refuse an applicant resident status in s 6(2) of the Act did not address the interests of the applicant's children. In the Full Court of the Federal Court ( Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409), the Court held that although the Convention on the Rights of the Child was not part of the Australian Municipal Law, ratification of the Convention by Australia was a statement to the community of acceptance of its provisions by Australia. It therefore provided parents and children with a legitimate expectation that actions by the Commonwealth affecting or concerning children would be conducted in a manner which adhered to the relevant principles of the Convention. 73 The Court held that where a decision involved the exercise of a discretion which concerned the best interests of children, the decision maker, in the exercise of that discretionary power, would need to consider the best interests of those children. 74 The Minister appealed to the High Court contending that the Full Court had raised the doctrine of legitimate expectation to a question of substantive fairness. The Minister argued that no executive Act, including accession to a Convention, could confine the otherwise unconfined discretion by establishing criteria which are bound to be applied.


case_text: However, Mr Ower argued that that was the effect of two decisions of Allsop J; first, in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 ; (2002) 119 FCR 454 (' Perez '); and, secondly, in Navarrete v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1723 (' Navarrete '). 87 In Perez the applicant, who was a Cuban national, was ordered to be deported. The Minister refused to revoke the deportation order and refused to release the applicant from immigration detention. He applied under the Administrative Decisions (Judicial Review) Act and under s 39B of the Judiciary Act 1903 (Cth) for a review of those decisions. One of the grounds was that there had been a failure to take into account as a primary consideration Mr Perez' children's best interests and that 'there was a failure to tell Mr Perez that this failure had occurred, leading to a failure to accord him natural justice'. 88 It was put to Allsop J that there was an obligation on the Minister in order to accord procedural fairness to the applicant, that if he were proposing to make a decision adverse to the best interests of the children, who might be affected by the decision, to inform the applicant and to give the applicant an adequate opportunity of presenting a case against taking such a course. 95 His Honour said at [56]-[59]: '56 The Minister noted the applicant's comments in his letter. Also, Section C of the submission had set out relevant parts of the applicant's second letter. However, a number of decisions of this Court have explained the importance of identifying what the interests of the children are, see in particular Wan v The Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133, 140. Before one can take the interests of the children into account as a primary consideration, one needs to appreciate what those interests are. The submission referred to paragraph 2.16 of Direction 21. That was a good beginning. But there was no real application by the Minister to the circumstances, such as they were known, of these three young Australian citizens aged 8, 6 and 4. The Minister stated that she concluded that the applicant's removal from Australia leaving behind, as was anticipated, his three small children "would cause some hardship on the children". The "difficulties" that they would suffer were not identified. 57 As I said in Perez v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 450 ; (2002) 119 FCR 454 at 485-6: Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. The interests of the children are considerations in respect of their human development - their health including their psychological health and happiness, their social and educational development as balanced nurtured young citizens of this country. This is not a check list but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol save for visits or whether to release him on appropriate conditions if thought necessary. 58 Not only was there little, if any, elucidation in the reasons of the Minister of the interests of these three young Australians, there is an absence of expression of what so weighs against this primary consideration as to outweigh it: see Wan at [32] to [34] and see also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [53] to [57]. 59 Further, there appears to have been taken into account as a contrary matter that the applicant's criminal history and incarceration (both expressed in the past tense) also "cause him and his family hardship" (expressed in the present tense). It is difficult to understand what this means given the inquiry is as to the effect in the future of expelling the applicant from this country. I do not propose to pursue this difficulty. Given that I am of the view that the content of the draft reasons was otherwise such as to lead to a denial of procedural fairness, it is unnecessary to base my decision on Teoh . It is sufficient to say that the paucity of the Minister's reasoning in respect of the interest of the children provides a strong foundation to say that the application of the views of the Full Court in Wan would lead to the decision being set aside also.' 96 In my opinion, this case also does not stand for the proposition advanced by counsel. Both cases stand for the proposition that, before addressing the question of the best interests of the children, it is necessary to determine what those interests are. I have already dealt with that in relation to an earlier contention. 97 In this case, the delegate and the AAT were obliged to consider the primary considerations of the children identified in Ministerial Direction No. 21. Therefore, the delegate and the AAT were under an obligation to have regard to the best interests of any of the children who were either in a parental or close relationship with the person under consideration. In my opinion, they were not obliged to identify the interests of the child Hao Lam or whether those interests would be affected by the cancellation of the applicant's visa and the consequential removal of the applicant from Australia because, in this case, there was no close relationship between the child and the applicant. 98 The applicant could not have had a legitimate expectation that either the delegate or the AAT would consider the best interests of any children other than the class identified in Ministerial Direction No. 21 itself. 99 In those circumstances, and for the reasons already given, the applicant cannot rely on Teoh's case to claim a lack of procedural fairness. 100 In my opinion, the application must be dismissed. The applicant must pay the first respondent's costs. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 28 April 2006 Counsel for the Applicant: Mr S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the First and Second Respondents: Ms K Bean Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 16 December 2005 Date of Judgment: 28 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/445.html


case_text: However, Mr Ower argued that that was the effect of two decisions of Allsop J; first, in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 ; (2002) 119 FCR 454 (' Perez '); and, secondly, in Navarrete v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1723 (' Navarrete '). 93 In Navarrete , a citizen of Chile had his visa cancelled under s 501 of the Migration Act . In that case, Ministerial Direction No. 21 was provided to the applicant who was advised that the Minister would 'have regard to ... and the attached Minister's Direction No. 21 titled (Directions under Section 499) '. The applicant responded. The Department wrote again to the applicant advising the applicant that he had 'failed to clearly address paragraphs 2.13-2.17 of Direction 21, which relates to "the best interests of the child" and "other considerations"'. The applicant was provided with a further copy of Direction No. 21. The applicant responded again and addressed 'the best interests of the child' and 'other considerations' in some detail. 94 The applicant contended that there had been a failure to afford procedural fairness relying on Teoh's case.


case_text: In my opinion, there is a serious question to be tried at a final hearing as to whether Exact (and through it ESA) have breached an implied obligation of good faith to cooperate in achieving the contractual objects found in the Distributorship Agreement. The principle embodied in this implied obligation was stated by the NSW Court of Appeal in Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187 at [169] and following. The obligation includes an implied covenant not to prevent the performance of the contract or to withhold its benefits. 28 By keeping the Distributorship Agreement on foot and thereby obliging Hume to perform its obligations to locate and service customers, whilst at the same time asserting a right to entice those customers away from Hume, Exact appears to be acting in breach of its implied obligation. This is a sufficient basis to warrant the grant of interlocutory injunctive relief subject to considerations of the balance of convenience. 29 An alternative basis available at this stage of the proceedings is that the information about customers supplied by Hume through the portal is given to Exact for a limited purpose and is otherwise confidential. Exact's assertion that it is entitled to use this information to target Hume's customers during the course of the existing Distributorship Agreement seems to me to raise a serious question of misuse of the information.


case_text: ESA also placed some store on the choice of law clause in Article 27 of the Distributorship Agreement. It was submitted for ESA that the exclusive jurisdiction clause found in Article 27 would point strongly against the grant of leave to serve Exact outside the jurisdiction. Leave has not yet been granted, but ESA argues at this stage that there are strong prospects that it will be refused when that application is heard. In my view, this argument fails to have regard to the decision of the Full Court in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 24 25. The claims which Hume makes against Exact include claims under the Trade Practices Act which do not ordinarily fall within the purview of this type of clause.


case_text: In deciding the issue of serious question, I do not need to consider the strength of such a question, because this decision will not effectively resolve the final hearing; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557. Nor does the entire agreement clause in Article 25 of the Distributorship Agreement persuade me that there is no serious question to go to a final hearing; see for example, Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 at [82] [83].


case_title: Lawson Hill Estate Pty Ltd Tovegold Pty Ltd (2004) 214 ALR 478


case_text: There was debate about the form of any interlocutory relief. Counsel for Hume relied upon Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia No 3 [1998] HCA 30 ; (1998) 195 CLR 1 at [33] for the proposition that relief in wide terms should be granted, and said that this should extend to mandatory injunctive relief if necessary. However, it seems to me that the proper exercise of my discretion is that interlocutory injunctive relief should be limited to the prevention of enticement of Hume's customers. This can be stated in sufficiently clear terms to prevent the actions which ESA has sought to achieve, in particular at the 18 October 2006 marketing event. The precise steps which ESA must take to comply with the injunction will be up to it, but clearly enough ESA and Mr Urand should be restrained from soliciting the business of Hume's existing customers in the manner sought to be achieved by ESA. 37 I will make orders in terms of paragraphs 2(a)(A) and 2(a)(B) of the notice of motion. The terms "Relevant Person" and "Distributorship Agreement" will be defined as set out in the notice of motion. I do not consider that any of the other orders sought in paragraphs 2 and 3 of the notice of motion should be made. 38 The orders that I will make are upon the applicants by their counsel giving the usual undertaking as to damages. I will order the second and fourth respondents to pay the costs of the applicants of the day of 13 October 2006. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 16 October 2006 Counsel for the Applicants: S J Burchett Solicitor for the Applicants: Home Wilkinson Lowry Lawyers Counsel for the Second and Fourth Respondents: R Horsley Solicitor for the Second and Fourth Respondents: DTA Lawyers Date of Hearing: 13 October 2006 Date of Judgment: 16 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1439.html


case_title: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557


case_text: The respondents accepted that the making of an order under O 62 r 3 is exceptional. There must be a reason consistent with the dictates of justice to depart from the usual rule: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297. In determining whether it would be in the interests of justice to make such an order, regard must be had to at least the following matters. First, whether there has been any fault on the party seeking an order under O 62 r 3. Secondly, whether it would be fair, in all the circumstances, to require a party in whose favour an order for costs has been made in relation to an interlocutory application to await the hearing of the principal proceeding. Thirdly, the conduct of the party against whom the order for costs has been made and, in particular, whether that party has been guilty of delay such as to cause a significant postponement of the final determination of the proceeding. Fourthly, where the costs relate to amendments to pleadings, whether the party against whom the order is sought has also been unable to articulate its claim or its defence in accordance with its obligations under the pleading rules, which has put the opposing party to significant costs. The rule should not be used to punish a party to the litigation. Costs orders are made to compensate, not to punish: Latoudis v Casey (1990) 170 CLR 534. See also Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ; Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422 at 426.


case_title: Latoudis v Casey (1990) 170 CLR 534


case_title: Ohn v Walton (1995) 36 NSWLR 77


case_title: Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422


case_outcome: considered

case_text: In All Services Australia Pty Ltd v Telstra Corporation Ltd [2000] FCA 375 ; (2000) 171 ALR 330 , the Court was concerned with a claim under s 52 of the Trade Practices Act 1974 (Cth). The applicant had difficulty in particularising the applicant's case and was ordered to pay the respondent's costs thrown away in relation to applications to amend its pleading. The applicant also sought to strike out the respondent's defence. 37 His Honour referred to the dicta of Kiefel J in All Services Australia Pty Ltd v Telstra Corporation [2000] FCA 375 ; 171 ALR 330 and said at 595: [I]t is not the fact of delay which is relevant but its effect upon the proceeding and the position in which the other party is then placed. Here, the respondents have been put to significant expense which, as the costs orders indicate, has been expense which they are entitled to recover from the applicants. 38 In this case it is right, as the respondents contend, that the applicant has taken nearly four years to articulate its statement of claim in its final form (if the fourth further amended statement of claim is its final form) for reasons which are not entirely apparent. A significant problem for the applicant in its pleading has been the applicant's inability to express its claim tightly. From time to time, the looseness of expression by the applicant in its pleading has caused the applicant significant embarrassment. 39 However, the thrust of the applicant's case against the respondents has not significantly changed and the respondents have been on notice since the proceeding was commenced of that claim. 40 The respondents filed their first defence in response to the applicant's statement of claim on 31 October 2005. It filed a further defence on 23 January 2006. The respondents have not been called upon to amend its pleadings whilst the applicant has sought to put its pleading in order. In those circumstances, the respondents have not been put to the considerable costs associated with having to re-plead the matter from time to time. 41 The respondents' costs have been occasioned by needing to have considered the various proposed amendments and the hearings of the applications to amend the statement of claim. They will recover those costs in due course whatever the result of the principal proceeding.


case_text: In Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732 ; (2000) 191 ALR 579 , Mansfield J considered an application under this rule. In the proceeding before him, three separate versions of the statement of claim had been struck out and other proposed statements of claim withdrawn. Considerable time had elapsed before a satisfactory version of the statement of claim had been settled upon.


case_text: There is no evidence that the respondents will suffer any serious disadvantage by not recovering their costs until the principal proceeding is determined. On the other hand, if the order were to be made, both parties would be put to the added expense of considering bills of costs in relation to the separate orders for costs to which reference has already been made. The applicant would need to find funds to pay those costs in advance of the hearing of the principal proceeding. It is desirable that the principal proceeding go forward as soon as possible because the principal proceeding raises important issues which need to be determined. Furthermore, this is not a proceeding where final judgment is "far away" and thus the eventuality of payment is remote: Australian Securities and Investments Commission v Mining Projects Group Limited (No 3) [2008] FCA 952 at [24] per Gordon J and the cases cited therein. 44 On balance, I do not think that this matter calls for an order under O 62 r 3. I think, on balance, the parties would be better served by proceeding with the action rather than being delayed or distracted by the taxation of costs of interlocutory proceedings. 45 There will be no order under O 62 r 3.


case_outcome: approved

case_text: 25 June 2009, the Federal Magistrates Court dismissed the application for judicial review: see SZMYG v Minister for Immigration & Anor (No 2) [2009] FMCA 503. It is from that decision that the Appellant appeals to this Court. There are three grounds of appeal. They are: (1) The tribunal member failed to consider carefully in relation to allegations of domestic violence and in relation to China's one child policy. (2) I was denied procedural fairness in connection with the making of the decision. (3) The tribunal does not amount to a proper basis for review in judicial review proceedings then [sic]. I shall consider each of these grounds of appeal in turn. Ground 1 does not, in terms, specify a ground of administrative law error, much less a failure on the part of the Federal Magistrates Court to find such an error. It is important to appreciate that in matters such as the present, the Court does not exercise original jurisdiction. There is a need for an Appellant to demonstrate error of law in the decision of the Federal Magistrates Court. I accept, though, that in respect of a person such as the Appellant, who is representing herself, and particularly in a case touching upon a claim for a protection visa, that a benign construction ought to be given to grounds of appeal, subject, of course, to ensuring that procedural fairness is given to the Minister, as active respondent, in meeting a ground so construed.


case_title: SZMYG v Minister for Immigration [2009] FMCA 52

case_text: Federal Magistrates Court dealt with the question of whether there was any error, in the administrative law error sense, in respect of the factual conclusions reached by the Tribunal initially in an interlocutory judgment: SZYMG v Minister for Immigration [2009] FMCA 52. The court found no such error. Having considered that question afresh out of an abundance of caution, having regard to a benign construction of ground 1, I can see no error in the pre-emptory way in which the Federal Magistrates Court dealt with this subject. That is because the conclusions which the Tribunal reached were reasonably open. It is nothing to the point that others may have reached different views. It is especially nothing to the point that judicial officers may have reached different views, for that would impermissibly intrude into functions consigned under our law to officers of the executive branch. However, then, one approaches ground 1, there is no merit in it. As to ground 2, there is an absence of particularity as to how procedural fairness was denied to the Appellant in the proceedings before the Tribunal, much less how there was any error on the part of the Federal Magistrates Court in dealing with such an issue. That court found there was no actual or apprehended bias evidenced in respect of the Tribunal proceedings. The only evidence of the course of proceedings before the Tribunal is to be found in the comprehensive recitation in the Tribunal's reasons of those proceedings. On behalf of the Minister, it was very properly put forward that if there were evidence of a failure to afford a hearing which was a meaningful hearing, a breach of s 425 of the Migration Act might be demonstrated. The difficulty is there is no such breach evidenced. Further, there is no evidence of any hectoring or overly rigorous inquisition, such as might give pause for thought as to whether an apprehension of bias arose in respect of the member constituting the Tribunal, on the basis that nothing that an Appellant could say or do would change a preconception held by a Tribunal member.


case_text: very properly, the Minister's counsel, in effect, posed against the Minister whether what lay behind the allegation of a want of procedural fairness was non-compliance with a mandatory requirement found in s 424A of the Migration Act . It is evident, though, that the Tribunal did comply with that section and, indeed, perhaps went further than the strictness of that section would require having regard to what is expressed by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at [18] as in relation to the concept of "information". No error in that regard arises. Even if one regards the ground as embracing, as a procedural fairness ground could, a failure to afford an opportunity to be heard, it is self evident that the Appellant was given such an opportunity and took advantage of it. I therefore dismiss ground 2. Ground 3 is not, with respect to the Appellant, a meaningful ground of appeal, even approaching it in the benign way I have earlier described. At best it might be said, in my opinion, that the Tribunal had not truly considered the Appellant's visa application and that the Federal Magistrates Court should have so held. I have already decided, though, for reasons earlier given, that a meaningful opportunity was extended and that the Tribunal did comprehensively engage with the basis ultimately put forward by the Appellant for her protection visa application. I therefore dismiss ground 3.


case_text: application is made at a time when both the case for Granitgard and the case for the Respondent, hereafter Termicide, have each closed. Submissions in the case are yet to be made and, obviously enough, judgment has not yet been given. The proceedings were commenced on 19 September 2007. In February last year, a trial was fixed to commence on 23 June. Interlocutory directions were made, which required Granitgard to file its evidence in chief by 18 April 2008, in anticipation of the trial then occurring in June. On 10 June, Granitgard made application for the trial dates to be vacated. That proved necessary, in light of a proposal which Granitgard had made to amend its statement of claim. That application was successful: see Granitgard Proprietary Limited v Termicide Pest Control Proprietary Limited [2008] FCA 865 (Collier J). A sequel to the successful application by Granitgard for the adjournment of the trial was the making of further and revised directions in respect of the provision of evidence-in-chief by the parties. Granitgard, materially, was directed to file further affidavits-in-chief, if any, by 29 August 2008. That was in anticipation of a trial of two weeks duration, commencing 20 October 2008. The trial commenced at that time, but it did not finish within the time allocated. That allocation was made on the basis of submissions made by counsel as to its anticipated length. In the course of what proved to be the original tranche of the hearing, Granitgard closed its case on 27 October 2008. The trial finally concluded, as far as evidence was concerned, at that point, with the closing of the Termicide's case on 4 December 2008. Provision was then made for the making of submissions, initially in writing and then orally. Oral submissions were appointed to commence on 10 February 2009.


case_text: far as the interests of justice are concerned, there is another consideration which is relevant in the context of this particular litigation. It was articulated by Goldberg J in Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010 at para 48 in these terms: The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re-visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result. No such exceptional circumstances exist in the present case. There needs to be a finality to the process of litigation and a limit on the number of times a party can re-visit issues which have arisen in the course of a trial and have been addressed. Unsurprisingly, Termicide points to this passage as supporting an exercise of discretion so as to refuse to permit Granitgard to reopen its case. There is no doubt that this particular proceeding is aptly described as "commercial litigation". It is a suit between competitors in a marketplace. It has been both at its interlocutory stages, and in the course of the trial to date, very closely contested indeed. There is no doubt that there are particular commercial interests at stake in terms of the interests in deriving profit from the conduct of business as between Granitgard and Termicide. Mr Gabriel's evidence as foreshadowed is not evidence which it could be described as available with the exercise of due diligence to Granitgard at any stage prior to the closing of its case or, for that matter, the closing of Termicide's case. One way of describing Granitgard's access to Mr Gabriel is that it is the product of what one might term a whistle blower, an anonymous whistle blower. Whether or not that whistle is nothing more than idle puffery, or perhaps a venting of spleen on the part of the disgruntled, is something that does not arise for consideration on the present application, otherwise than as a contingency which would fall for assessment, so far as Mr Gabriel's credibility is concerned, in the event that leave is granted to reopen Granitgard's case so as to permit him to be called.


case_text: Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 at para 24, Kenny J, with respect, offers a very helpful summary of circumstances in which a court will permit further evidence to be given. Her Honour lists four categories in which she opines that, broadly speaking, a court may grant leave to reopen. Her Honour is careful to note that these classes or categories are not exhaustive and overlap. The four classes that her Honour identifies by reference to authority are: (a) fresh evidence; (b) inadvertent error; (c) mistaken apprehension of the facts; and (d) mistaken apprehension of the law. As her Honour notes in para 24: In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.


case_title: Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 ; (2008) 76 IPR 152

case_text: example of a case where leave to reopen was granted to a party, notwithstanding a deliberate tactical decision on the part of that party's representatives, initially, not to call the witness concerned, is to be found in an interlocutory judgment delivered by me in Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 at paras 19 27 (which is presently the subject of a reserved judgment in respect of the substantive issues). In the course of my reasons for judgment in that interlocutory application, I gained assistance from two judgments of the South Australian Supreme Court. I shall not refer in detail to those judgments, as they are reproduced in the interlocutory judgment which I delivered in Olivaylle . Those particular cases demonstrate, though, the extent of the discretion and the singularity of circumstance which may give rise to an exercise of a discretion to reopen, even in circumstances where a judgment has been delivered but an order has not yet been perfected.


case_title: R v Liddy (2002) 81 SASR 22

case_text: behalf of Granitgard, it is submitted that Mr Baverstock's evidence, if admitted, upon leave to re-open, would amount to an admission by conduct. Reliance in this regard is placed on statements of principle collected in R v Liddy (2002) 81 SASR 22 at 90 - 92; see also Cross on Evidence at para 33435. Mr Baverstock's foreshadowed evidence is rather more tangential than Mr Gabriel's foreshadowed evidence. Nonetheless, it seems to me that it is not evidence that in any way could be described as reasonably available, or available at all, to Granitgard prior to the last adjournment of the trial. Further, it does have, particularly having regard to the intensity of contest between the parties, some probative value if accepted. I propose also to grant leave to Granitgard to re-open the proceeding so as to call Mr Baverstock. The terms of that grant of leave are that I am disposed to permit Granitgard to call Mr Gabriel to give evidence as contained in his affidavit, subject to such objections, if any, as may be made to it upon the tender of that affidavit. So far as Mr Baverstock is concerned, I am disposed to grant leave to Granitgard to re-open to call from him evidence as contained or, at least, as summarised in the affidavit of Ms O'Neill from which I have quoted.


case_text: there is a jurisdiction to permit a party to reopen its case, so as to adduce further evidence, even after a statement has been made to the court that the party's case in evidence has closed is not in doubt: see, for example, Smith v The New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266 to 267.


case_text: useful starting point, in the context of an application such as this, is a passage which appears in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478: The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.


case_text: I have indicated above that in the case of some of the categories, there is a case for deciding that discovery should await the filing of evidence by the University on particular issues. The course of requiring evidence prior to discovery is not novel: see, for example, Australian Competition and Consumer Commission v Qantas Airways Ltd [2003] FCA 907 esp at [4]. As Gyles J there observed, experience shows that the filing of affidavits often brings to light many documents. I appreciate that this may prove to be an exceptional case in this respect and that it is conceivable that it would be appropriate for the University to be granted leave to file further affidavits after discovery has taken place. 81 Another possible course is to give the parties a further opportunity to consider the category descriptions in the light of what I have said, especially at [37]ff above. ResMed will have to give discovery at some stage and it may be preferable that this take place now rather than later. 82 In the course of the hearing, counsel for the University suggested two variations to the categories of documents to be discovered at this stage. The first was to limit the documents sought in categories 4, 6 and 8 to those created before 31 December 1998 (category 5 is already limited in this respect). The second was to limit the documents sought in categories 4, 6 and 8 by reference to the first in the series of Mirage Masks alone (being the "original" Mirage Mask referred to in para 14(i)(A) of the FASOC). (Counsel also announced that category 15(a) is no longer pressed.)


case_text: I had occasion to discuss the relationship between discovery by "categories of documents" and O 15 of the Rules in Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 and Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 ( Aveling ). In Aveling , I observed (at [10]) that the principles that should guide parties in arriving at descriptions of categories of documents for discovery are the very principles that guide the Court when ordering discovery. Those principles are found in O 15 r 2(3), (4), (5) and (6) of the Rules which provide: (3) ..., the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case. (4) However, a document is not required to be disclosed if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given. (5) For subrule (3), in making a reasonable search, a party may take into account: (a) the nature and complexity of the proceedings; and (b) the number of documents involved; and (c) the ease and cost of retrieving a document; and (d) the significance of any document likely to be found; and (e) any other relevant matter. (6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why. In Aveling , I said at [11]: It may be appropriate for parties to describe categories in terms which do not expressly incorporate the language of O 15 r 2(3), but that subrule should nonetheless govern the formulation of the categories. Alternatively, of course, the categories may be defined so as to incorporate expressly the terms of the subrule. Whatever approach is taken, it is important to understand that when, as happened in the present case, the Court orders discovery by categories to be notified by one party to another, the Court does not intend that the notifying party be at liberty to widen the discovery obligation beyond the four classes of documents referred to in O 15 r 2(3). 41 Any description of categories of documents to be discovered should be arrived at, whether by the Court or by the parties, in the light of the standard laid down in the rules set out above. It is not clear to me that the parties have approached the question in this way. The question for me on the present motion is whether the disputed categories satisfy the rules. It is often difficult for the Court to be certain that documents falling within a particular category description fall within the rules. 42 It would be permissible for a category to be identified as documents that satisfy both of two conditions: (1) a description of a class of document; and (2) subrules (3), (4) and (5) of rule 2 (the effect of which subrules could be set out in appropriate form). This approach would at least ensure that the documents sought did not exceed either the range of documents referred to in the rules, or the bounds of the category descriptions.


case_text: A delegation is not revoked when the office of the delegator passes to a new holder ( Aban v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 385 ; (1991) 31 FCR 93 at 98 per Morling, Jenkinson and Heerey JJ). The effect of a delegation is to confer upon the delegate an authority which he or she must exercise in accordance with the requirement of the statute but with his or her own independent discretion. It is not a relationship of principal and agent ( Kelly v Watson (1985) 10 FCR 305 at 318 per Neaves J). In Kelly Neaves J was considering whether a delegation continued to have operative effect notwithstanding the vacation of office of a particular permanent head who had executed the instrument of delegation. Justice Neaves was of the view (at 318) that clear and unambiguous language would be required before construing a statute to produce the result that the delegation ceased to operate when a delegator ceased to hold office (see also Johnson v Veterans' Review Board (2002) 71 ALD 16 at [31] [32] per Mansfield J). There is nothing in the Act or the SS Administration Act to suggest that the relevant delegations should cease with the holding of office of the delegator.


case_text: The misstatement of the identity of the contracting party or of the employer of Mr Ptok and Ms Dean, as a mistake in naming the source of the power to enter into the Lim Activity Agreements, does not affect the validity of those agreements ( Brown v West [1990] HCA 7 ; (1990) 169 CLR 195 at 203). 38 Mr Lim also seems to contend that, whether or not the employees of WorkDirections Australia were exercising a power available as delegates of the Secretary, they were not entitled to sign without stating that it was on behalf of or as delegated by the Secretary. In this regard, Mr Lim contends that, while delegates may make decisions without revealing the source of their power, they cannot enter into agreements without indicating that they are doing so as delegates. Mr Lim says that his agreements were with a private contractor and that the Act has no application. Rather, he says, the Lim Activity Agreements are commercial contracts to which the common law applies. In a subsequent submission, Mr Lim stated that the failure to include any reference to the Secretary in the Lim Activity Agreements constitutes an ' operative mistake of law ', thereby rendering the agreements void. 39 Each Lim Activity Agreement states that it is ' an Activity Agreement under the Social Security Act 1991 '. Each states that it refers to activities necessary to receive income support payments from Centrelink. Mr Lim could not have believed that the Lim Activity Agreements were private arrangements. He could have been under no misapprehension that the agreements were under the Act and had consequences under the Act.


case_title: Johnson v Veterans' Review Board (2002) 71 ALD 16


case_title: Kelly v Watson (1985) 10 FCR 305