case_title: Duncan v Fayle [2004] FCA 723

case_text: This is an appeal from the whole of the decision of the Administrative Appeals Tribunal ('the Tribunal'), constituted by a single Member of the Tribunal given on 25 July 2005, whereby the Tribunal decided to dismiss two Applications by Solon Theo ('the applicant') for review on the basis that, under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), they were frivolous or vexatious. 5 The Tribunal, in its Reasons for Decision, [2005] AATA 699 , at par [58] also ordered that: 'Solon Theo by himself, his employees, agents or independent contractors or other persons must not, without leave of this Tribunal, make an application for review by this Tribunal of any decision relating to age pension or disability support pension made by the Secretary, Department of Family and Community Services.' 6 S 42B(1) of the AAT Act provides: 'Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application; and (b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction. ' 7 The application before the Tribunal concerned two separate applications to the Secretary, Department of Family and Community Services ('the respondent') by the applicant. The first was an application for review of a decision of the respondent in the matter of an Age Pension application made on 12 July 2004. The second was an application for review of a further decision of the respondent in the matter of an application for a Disability Support Pension made on 22 July 2004. 8 Both applications, and the decision by the AAT on them, have to be considered in the context of many acrimonious disputes between the applicant and Centrelink, and the respondent Department and some of its officers. As will appear, that history has clouded a dispassionate view of the entitlement of the applicant to an Age Pension. 9 The decision by the AAT in respect of the application for an Age Pension has involved a significant error of law, and a serious misunderstanding of its role, and of the extent to which other decisions on other applications by the applicant had utility in disposing of the applications then before it. 10 In respect of the application for Age Pension, Centrelink, by a letter dated 16 July 2004, requested the applicant provide certain information in order that his claim could be assessed. The letter said in part: 'You must complete the enclosed forms. Private Trust module, Separation details form, Accommodation details form, and Real Estate details form. If you are no longer involved in the Solon Theo Family Trust, you must provide the original stamped amended trust deed showing you have relinquished control of the trust... This is an information notice given under the social security law.' 11 Centrelink received a number of completed forms from the applicant on 21 July 2004 which provided limited information. For instance, on the form headed 'Separation Details' the applicant stated ' Your records have such information, ' and in answer to the question ' Address where you and your wife were living prior to your separation? ', the applicant again stated ' Your records have such information '. In relation to a document ' MODPT Private Trust ' a diagonal line with the words ' N/A ' was submitted, and similarly in a document ' MODR Real estate details' . 12 By letter dated 16 August 2004 the applicant was advised that his claim had been rejected due to his failure to provide enough information in order for a proper assessment of the claim to be carried out. The letter said: ' After careful consideration your claim for Age Pension has been rejected because you have not provided enough information for an assessment to be made. In particular, with regard to your involvement in the Solon Theo Family Trust .' 13 The applicant sought an internal review of the decision and on review the Authorised Review Officer affirmed the original decision. That letter, on 15 September 2004, said in part: 'My decision [not to change the decision to reject your new claim for Age Pension lodged on 12/7/04] was based on the following findings: • you have been the trustee and controller of the Solon Theo Family Trust; • you have now advised that you have relinquished control of this trust and that this occurred prior to 1/4/02; • in order to decide whether you have any entitlement to age pension, Centrelink needs to be able to assess your income and assets; • to do so, we require proper original evidence of the legal date of transfer of control of the trust and of who is now in control of the trust, a completed "Private Trust" form and full financial documents for the trust detailing income and assets held;' 14 I interpolate to say that while it is clear that in order to decide whether a person has an entitlement to Age Pension, an assessment of income and assets has to be made, it is by no means clear (and seems to me to reflect an imperfect understanding of the difference between any entitlement to income and assets of a trust, and the status of controller of trust property), that, in order to be able to assess income and assets, Centrelink ' require [s] proper original evidence of the legal date of transfer of control of the trust and of who is now in control of the trust, a completed "Private Trust" form and full financial documents for the trust dealing income and assets held '. 15 In respect of the application for a Disability Support Pension made on 22 July 2004, Centrelink advised the applicant by letter dated 23 July 2004 that his claim was rejected as such a pension ' can not be assessed for a person whom [sic] is of age pension age '. The applicant sought an internal review of that decision which was ultimately affirmed on review. 16 The applicant appealed both decisions to the Social Security Appeals Tribunal ('the SSAT'). On 11 October 2004 the SSAT affirmed each decision under review and on 22 October 2004 the applicant commenced proceedings in the Tribunal seeking to have, in effect, the SSAT's decisions set aside. 17 The applicant appealed to the AAT on 22 October 2004. The AAT handed down its decision on 25 July 2005, and made the Orders earlier referred to. 18 The Tribunal expressed its conclusion regarding the application for an age pension in par [49]: ' 49. The defects in the Applicant's age pension claim and supporting documents in this case are the same as those carefully rehearsed by the Federal Court Theo v Secretary, Department of Family and Community Services [2005] FCA 880 . Little purpose would be served by elaborating these in any detail in these Reasons for Decision. As noted by the Federal Court in Theo v Secretary, Department of Family and Community Services [2005] FCA 880 at [16] and [18], the Applicant's written responses to the requests of the Respondent for further information relating to the family trust structure in which the Applicant apparently has a present interest or entitlement (a claim disputed by the Applicant) were " combative " as was also at least one of his oral communications with the Respondent concerning the same matter. In short, the Applicant has not adduced any fresh evidence in this set of proceedings that advances his case for proper merits-based consideration of his age pension claim that goes beyond evidence adduced before the Tribunal in Theo v Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services [2005] FCA 880... ' (emphasis added) 19 It expressed its conclusion regarding the application for a Disability Support Pension in par [46]-[47]: ' 46. ... At the time of his application for disability support pension (made 21 July 2004), the Applicant was 71 years of age. Under section 28 of the Social Security (Administration) Act 1991 , a person cannot make a claim for a disability support pension unless that person is under the pension age on the day on which the claim was lodged. This provision must be read side-by-side with section 23(5) of the Social Security (Administration) Act 1991 , which states that a man reaches pension age when he turns 65. ... The combined operation of sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. ... 47. ... the application for review in relation to the disability support pension application ... is utterly hopeless, is futile, is without foundation in point of fact or in point of law, and should be dismissed as frivolous or vexatious ... under section 42B. ' 20 S 44(1) of the AAT Act relevantly provides: ' A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. ' 21 It is convenient to deal first with the applicant's appeal from the decision of the Tribunal concerning his application for a Disability Support Pension. The reasoning of the Tribunal appears in par [46] of its Reasons for Decision: 'The Applicant's disability support pension claim was rejected by the Respondent on 23 July 2004 on the basis that the Applicant is of age pension age. At the time of his application for disability support pension (made on 21 July 2004), the Applicant was 71 years of age. Under section 28 of the Social Security (Administration) Act 1991 , a person cannot make a claim for a disability support pension unless that person is under the pension age on the day on which the claim was lodged. This provision must be read side-by-side with section 23(5) of the Social Security (Administration) Act 1991 , which states that a man reaches pension age when he turns 65. This Tribunal has found as a fact that on the date of his application, the Applicant was of 71 years of age (and 72 years of age as at the date of decision). The combined operation of sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. The Tribunal is prepared to infer that the Applicant's application for disability support pension was made to outflank his lack of success on his age pension claim (at the same time the Tribunal notes that the Applicant does have some poor health and the documents admitted into evidence as Exhibit 5 did demonstrate that point to some extent). The reasoning of the Social Security Appeals Tribunal in paragraphs 15 to 17 of its decision made 11 October 2004 in disposing of the application for review to that Tribunal of the disability support claim rejection decision made by the Respondent is correct and unimpeachable.' 22 No error of law attends the conclusions of the Tribunal expressed in this paragraph. It follows that the application for review of this decision of the Tribunal must be dismissed 23 In respect of the Application to review the decision to refuse Mr Theo an Age Pension, the Tribunal properly set out its role, and then in its Reasons for Decision failed utterly in the discharge of that role. 24 The Tribunal said at par [3]: 'The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33] . The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent : Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23] . The Tribunal proceeds de novo : Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 602.' 25 The Tribunal had earlier said under the heading ' Jurisdiction ', at par [2] 'In a procedural sense, the Tribunal has jurisdiction in these appeals by virtue of Part 4 , Division 5 of the Social Security (Administration) Act 1999 . In a substantive sense, the merits of these appeals are governed by the Social Security Act 1991 . For reasons that will become apparent later in these Reasons for Decision, section 42B of the Administrative Appeals Tribunal Act 1975 is also decisive in the resolution of these appeals.' 26 On 21 March 2005 the respondent filed its Statement of Facts and Contentions. This Statement was, so the material before this Court indicates, given to the applicant on the morning of the hearing at the Tribunal, 24 March 2005, shortly before the hearing commenced. In the Statement of Facts and Contentions the respondent contended, amongst other things, that the applicant be declared vexatious and further applications only be made with the leave of the Tribunal. The Tribunal indicated at the hearing that it would deal with the s 42B issue first. 27 The Tribunal appears to have given no attention to the question of whether the application by the respondent contained in its Statement of Facts and Contentions was made in circumstances which accorded with the principles of natural justice, including the right properly to be heard. 28 The Tribunal in its Reasons given on 25 July 2005 contains an extensive, and it has to be said, precious analysis, of legislation concerning frivolous or vexatious applications, including the provisions in the High Court Rules, the Federal Court Rules , the Federal Magistrates Court Rules, the Uniform Civil Procedure Rules 1999 made under the Supreme Court of Queensland Act 1991 (Qld), and the Supreme Court Act 1970 (NSW). Moreover the elaborate 'Review of the Jurisprudence on section 42B' undertaken in the Reasons for Decision reveals a fundamental misunderstanding of the operation of s 42B. 29 The Tribunal referred to the judgment of French J in Duncan v Fayle [2004] FCA 723 , but failed to understand the Reasons for Judgment of French J. His Honour said at par [22] 'A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed. ' (emphasis added) 30 The Tribunal, at par [34], referred to passages from Re Williams and Australian Electoral Commission (1995) 21 AAR 467, preciously noting the case to be ' the fons et origo (or alternatively, the locus classicus) of section 42B jurisprudence.' The Tribunal referred to what it considered the critical passage: ' that the situation... falls within the provisions of s 42B...not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings. Moreover that collateral purpose is itself a futile one.' As that passage demonstrates, the Tribunal in re Williams held that s 42B applied because the proceedings were futile, and the collateral purpose of the applicant was irrelevant to any issue in the proceedings, and was itself futile. 31 The decision of the Tribunal to conclude that the proceedings, being the application to the Tribunal, was frivolous or vexatious, seems to have been based, in part, on its conclusion expressed in par [40] of its Reasons: '... in this case, the Applicant conceded in cross-examination that his objective in pursing his claims through Centrelink, the Social Security Appeals Tribunal and this Tribunal (and from this juncture, the Federal Court) was to pressure (or coerce) Centrelink to grant him his age pension by dint of his successive applications. Re-examination by the Applicant did not repair this damaging concession elicited during cross-examination.' 32 Moreover, the Tribunal said in par [48] of its Reasons concerning the claim for the Age Pension before it: ' ... This age pension claim suffers from the same defects in content that were identified by McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and which were the subject of an unsuccessful appeal to the Federal Court in the proceedings determined against the Applicant as Theo v Secretary, Department of Family and Community Services [2005] FCA 880. The Tribunal notes that the Federal Court carefully reviewed the factual history and applicable law of the Applicant's previous unsuccessful claim for age pension made in October 2003 (refer in particular to paragraphs [19] [37] and [51] [53]). The Tribunal took into consideration that the Applicant initiated the previous application for merits-based review from the Social Security Appeals Tribunal to this Tribunal that culminated in the decision of McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 , as well as the subsequent appeal to the Federal Court which culminated in the decision in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. ' (emphasis added) and later gave the reasons in par [49] set out above at par [17]. Paragraph [49] of the Tribunal's reasons concluded: '...Proceeding by analogy, this Tribunal can employ the doctrine of res judicata ( Re Irving and Repatriation Commission (1997) 46 AA 20 at 25; [16]) in dealing with successive claims by applicants for income support benefits. The Tribunal stresses that reliance upon res judicata in this case is simply by way of analogy in connection with the section 42B application, not by way of direct application.' 33 As the Tribunal noted in par [3] of its Reasons, the role of the Tribunal is to reach the correct and preferable decision on the basis of the material before it . The Tribunal proceeds de novo . The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it . 34 The applicant has made many applications concerning his entitlement to an Age Pension. In those applications, he had filed much material concerning the Solon Theo Trust. It may be that the terseness of his reply to the request for information and the paucity of it before the rejection of his application for Age Pension on 16 August 2004 was a consequence of this fact. 35 Before the AAT he was expressly asked, 'Do you want me to take note of the T documents from those previous hearings?' The AAT noted, 'I think Mr Ffrench [the departmental advocate] is actually trying to help you out.' Importantly, the AAT asked, 'Do you want the Tribunal to have regard to the previous Tribunal documents from earlier hearings?' ; to which Mr Theo answered, ' Yes.' The Tribunal said 'I'm happy to take them on board and Mr Ffrench has offered or undertaken to provide those and I'm happy to consider them.' 36 The documents that were thus before the Tribunal on the application for review of the decision concerning Mr Theo's entitlement to an Age Pension were much more extensive than the replies the applicant gave to the request for information by Centrelink in the letter of 16 July 2004. They included an affidavit dated 26 March 2003 in which Mr Theo, amongst other things, swears: '1) Since the 14.12.01 I am not involved in any Trusts. 4) It is hereby further reiterated that I will not exert any control over or benefit directly or indirectly in any way or form from any trust.' 37 A further affidavit dated 27 June 2002 by Sol Theo concerning the absence of any question of control, any question of interest, any question of being a beneficiary in any trust, was sworn to by him. The declaration in part says: '1) I was the Trustee of the Family Trust known as SOLON THEO FAMILY TRUST, and relinquished all formal roles and control in respect of the trust as well as relinquished all interest in the trust, which were none. ... 3) I had resolved to retire from the office of Trustee of the said Trust Fund. 4) And I declare that neither my partner nor now myself are in any shape or form in a position with the Trust, to have any authority and to exert any control over the benefit in any way from the trust, which have been non existent, nor are we in a position to influence. Such status is irrevocable.' 38 The stamped, certified true copy of the 'Solon Theo Family Trust' the subject of those statutory declarations was before the Tribunal. The Deed was made on 8 September 1978 and while the applicant was the trustee of that trust, he had no interest in the trust as a possible beneficiary of it, and in particular as possible entitlement to any or trust assets of trust income. Apart from the statutory declarations of the applicant which the Tribunal said it would consider there are also statutory declarations from his then wife indicating that she no longer had any interest or connection with the trust. In particular, there was before the Tribunal an affidavit of Athena Theo dated 25 March 2003 to that effect. 39 It is plain that the Tribunal failed to consider the previous Tribunal documents from earlier hearings, as it had indicated during the hearing before it that it would. The written contentions filed shortly before the hearing before the AAT, as noted in par [16] of the Reasons for Decision, alleged: 'The applicant has now requested that this Tribunal review matters relating to the cancellation or rejection of claims for social security payments on a number of occasions. Each hearing has involved a number of decisions and have, in the main, concerned the same issue: the failure of the applicant to provide full and satisfactory details of his involvement in the Solon Theo Family Trust.' 40 However, in the course of the hearing, Mr Theo indicated, and the Tribunal said that it would have regard to, previous Tribunal documents from earlier hearings. In particular, the AAT said 'So if you want to take me to particular pages or folios in this document now is a great opportunity to do so,' , to which Mr Theo directed the Tribunal to Page 3 of document T2: ' "Mr Theo advised that he had relinquished control of the trust and that that occurred prior to 1 April 2002 " , and you have a bundle of documents Exhibit 9 which substantiate this statement.' 41 In the light of the material that was before the Tribunal it is simply untrue to say, as the AAT said, in par [51D] 'Nothing of an evidentiary nature concerning the age pension claim in this proceeding differs from that considered by this Tribunal in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. ' 42 In any event, the proceedings in the Tribunal fall to be determined on the material before it, and not on the basis of whether that material was the same as, or different to, the material before other decision-makers in other applications. Generally, there can be an estoppel against the terms of a statute. 43 The decision before the Tribunal was the decision made on 16 August 2004 to reject the applicant's claim for Age Pension on the basis that he had not provided requested information. The application for review by Mr Theo by the AAT of that decision required the Tribunal to reach the correct and preferable decision on the material that was before it: that material, it seems to me, amply satisfied the request for information about the position of the applicant in relation to the Solon Theo Trust, namely that he had no interest, either legally or beneficially in any of the trust assets, or any income of the trust. The Tribunal ignored this material, contrary to its promise, and thus failed in its central duty, to reach the correct or preferable decision on the material before it. 44 In short, the material before the AAT was much more extensive and comprehensive than the material that was before the decision-maker on 16 August 2004. The proceedings, insofar as they involve an application for review of the decision concerning the Age Pension, could not possibly have been the subject of a s 42B dismissal, because as French J pointed out in Duncan v Fayle [2004] FCA 723 at par [22] , 'A decision dismissing an application as frivolous or vexatious under s 42B(1) ... necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed.' 45 The material that was before the Tribunal does not satisfy this essential requirement. On the contrary, notwithstanding the applicant's dealings with the Department and the various Tribunals have been acrimonious and frequently conducted by the applicant in a belligerent way, and in a way which is contrary to his own best interests, the material that was before the Tribunal on this occasion, dealing with the requirements of the Act for an Age Pension seem, on that material, to have been satisfied. While it is a matter for the Tribunal, the totality of the information and material before the Tribunal seems plainly to establish that there is no disqualification by virtue of any interest that the applicant may have in any trust and in particular the Solon Theo Trust. 46 For the above reasons the Orders made by the AAT on 25 July 2005 must be set aside and the application Q2004/823 should be remitted to the Administrative Appeals Tribunal to be considered by it according to law. 47 Having regard to the fact that the applicant is unsuccessful in his appeal to this Court concerning the decision of the Tribunal in proceedings Q2004/824, it is appropriate that there be no Orders to costs in respect of the appeal to this Court. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 22 March 2006 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr Scott McLeod Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 December 2005 Date of Judgment: 22 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/279.html


case_outcome: discussed

case_title: Re Williams and the Australian Electoral Commission (1995) 21 AAR 467

case_text: This is an appeal from the whole of the decision of the Administrative Appeals Tribunal ('the Tribunal'), constituted by a single Member of the Tribunal given on 25 July 2005, whereby the Tribunal decided to dismiss two Applications by Solon Theo ('the applicant') for review on the basis that, under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), they were frivolous or vexatious. 5 The Tribunal, in its Reasons for Decision, [2005] AATA 699 , at par [58] also ordered that: 'Solon Theo by himself, his employees, agents or independent contractors or other persons must not, without leave of this Tribunal, make an application for review by this Tribunal of any decision relating to age pension or disability support pension made by the Secretary, Department of Family and Community Services.' 6 S 42B(1) of the AAT Act provides: 'Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application; and (b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction. ' 7 The application before the Tribunal concerned two separate applications to the Secretary, Department of Family and Community Services ('the respondent') by the applicant. The first was an application for review of a decision of the respondent in the matter of an Age Pension application made on 12 July 2004. The second was an application for review of a further decision of the respondent in the matter of an application for a Disability Support Pension made on 22 July 2004. 8 Both applications, and the decision by the AAT on them, have to be considered in the context of many acrimonious disputes between the applicant and Centrelink, and the respondent Department and some of its officers. As will appear, that history has clouded a dispassionate view of the entitlement of the applicant to an Age Pension. 9 The decision by the AAT in respect of the application for an Age Pension has involved a significant error of law, and a serious misunderstanding of its role, and of the extent to which other decisions on other applications by the applicant had utility in disposing of the applications then before it. 10 In respect of the application for Age Pension, Centrelink, by a letter dated 16 July 2004, requested the applicant provide certain information in order that his claim could be assessed. The letter said in part: 'You must complete the enclosed forms. Private Trust module, Separation details form, Accommodation details form, and Real Estate details form. If you are no longer involved in the Solon Theo Family Trust, you must provide the original stamped amended trust deed showing you have relinquished control of the trust... This is an information notice given under the social security law.' 11 Centrelink received a number of completed forms from the applicant on 21 July 2004 which provided limited information. For instance, on the form headed 'Separation Details' the applicant stated ' Your records have such information, ' and in answer to the question ' Address where you and your wife were living prior to your separation? ', the applicant again stated ' Your records have such information '. In relation to a document ' MODPT Private Trust ' a diagonal line with the words ' N/A ' was submitted, and similarly in a document ' MODR Real estate details' . 12 By letter dated 16 August 2004 the applicant was advised that his claim had been rejected due to his failure to provide enough information in order for a proper assessment of the claim to be carried out. The letter said: ' After careful consideration your claim for Age Pension has been rejected because you have not provided enough information for an assessment to be made. In particular, with regard to your involvement in the Solon Theo Family Trust .' 13 The applicant sought an internal review of the decision and on review the Authorised Review Officer affirmed the original decision. That letter, on 15 September 2004, said in part: 'My decision [not to change the decision to reject your new claim for Age Pension lodged on 12/7/04] was based on the following findings: • you have been the trustee and controller of the Solon Theo Family Trust; • you have now advised that you have relinquished control of this trust and that this occurred prior to 1/4/02; • in order to decide whether you have any entitlement to age pension, Centrelink needs to be able to assess your income and assets; • to do so, we require proper original evidence of the legal date of transfer of control of the trust and of who is now in control of the trust, a completed "Private Trust" form and full financial documents for the trust detailing income and assets held;' 14 I interpolate to say that while it is clear that in order to decide whether a person has an entitlement to Age Pension, an assessment of income and assets has to be made, it is by no means clear (and seems to me to reflect an imperfect understanding of the difference between any entitlement to income and assets of a trust, and the status of controller of trust property), that, in order to be able to assess income and assets, Centrelink ' require [s] proper original evidence of the legal date of transfer of control of the trust and of who is now in control of the trust, a completed "Private Trust" form and full financial documents for the trust dealing income and assets held '. 15 In respect of the application for a Disability Support Pension made on 22 July 2004, Centrelink advised the applicant by letter dated 23 July 2004 that his claim was rejected as such a pension ' can not be assessed for a person whom [sic] is of age pension age '. The applicant sought an internal review of that decision which was ultimately affirmed on review. 16 The applicant appealed both decisions to the Social Security Appeals Tribunal ('the SSAT'). On 11 October 2004 the SSAT affirmed each decision under review and on 22 October 2004 the applicant commenced proceedings in the Tribunal seeking to have, in effect, the SSAT's decisions set aside. 17 The applicant appealed to the AAT on 22 October 2004. The AAT handed down its decision on 25 July 2005, and made the Orders earlier referred to. 18 The Tribunal expressed its conclusion regarding the application for an age pension in par [49]: ' 49. The defects in the Applicant's age pension claim and supporting documents in this case are the same as those carefully rehearsed by the Federal Court Theo v Secretary, Department of Family and Community Services [2005] FCA 880 . Little purpose would be served by elaborating these in any detail in these Reasons for Decision. As noted by the Federal Court in Theo v Secretary, Department of Family and Community Services [2005] FCA 880 at [16] and [18], the Applicant's written responses to the requests of the Respondent for further information relating to the family trust structure in which the Applicant apparently has a present interest or entitlement (a claim disputed by the Applicant) were " combative " as was also at least one of his oral communications with the Respondent concerning the same matter. In short, the Applicant has not adduced any fresh evidence in this set of proceedings that advances his case for proper merits-based consideration of his age pension claim that goes beyond evidence adduced before the Tribunal in Theo v Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services [2005] FCA 880... ' (emphasis added) 19 It expressed its conclusion regarding the application for a Disability Support Pension in par [46]-[47]: ' 46. ... At the time of his application for disability support pension (made 21 July 2004), the Applicant was 71 years of age. Under section 28 of the Social Security (Administration) Act 1991 , a person cannot make a claim for a disability support pension unless that person is under the pension age on the day on which the claim was lodged. This provision must be read side-by-side with section 23(5) of the Social Security (Administration) Act 1991 , which states that a man reaches pension age when he turns 65. ... The combined operation of sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. ... 47. ... the application for review in relation to the disability support pension application ... is utterly hopeless, is futile, is without foundation in point of fact or in point of law, and should be dismissed as frivolous or vexatious ... under section 42B. ' 20 S 44(1) of the AAT Act relevantly provides: ' A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. ' 21 It is convenient to deal first with the applicant's appeal from the decision of the Tribunal concerning his application for a Disability Support Pension. The reasoning of the Tribunal appears in par [46] of its Reasons for Decision: 'The Applicant's disability support pension claim was rejected by the Respondent on 23 July 2004 on the basis that the Applicant is of age pension age. At the time of his application for disability support pension (made on 21 July 2004), the Applicant was 71 years of age. Under section 28 of the Social Security (Administration) Act 1991 , a person cannot make a claim for a disability support pension unless that person is under the pension age on the day on which the claim was lodged. This provision must be read side-by-side with section 23(5) of the Social Security (Administration) Act 1991 , which states that a man reaches pension age when he turns 65. This Tribunal has found as a fact that on the date of his application, the Applicant was of 71 years of age (and 72 years of age as at the date of decision). The combined operation of sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. The Tribunal is prepared to infer that the Applicant's application for disability support pension was made to outflank his lack of success on his age pension claim (at the same time the Tribunal notes that the Applicant does have some poor health and the documents admitted into evidence as Exhibit 5 did demonstrate that point to some extent). The reasoning of the Social Security Appeals Tribunal in paragraphs 15 to 17 of its decision made 11 October 2004 in disposing of the application for review to that Tribunal of the disability support claim rejection decision made by the Respondent is correct and unimpeachable.' 22 No error of law attends the conclusions of the Tribunal expressed in this paragraph. It follows that the application for review of this decision of the Tribunal must be dismissed 23 In respect of the Application to review the decision to refuse Mr Theo an Age Pension, the Tribunal properly set out its role, and then in its Reasons for Decision failed utterly in the discharge of that role. 24 The Tribunal said at par [3]: 'The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33] . The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent : Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23] . The Tribunal proceeds de novo : Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 602.' 25 The Tribunal had earlier said under the heading ' Jurisdiction ', at par [2] 'In a procedural sense, the Tribunal has jurisdiction in these appeals by virtue of Part 4 , Division 5 of the Social Security (Administration) Act 1999 . In a substantive sense, the merits of these appeals are governed by the Social Security Act 1991 . For reasons that will become apparent later in these Reasons for Decision, section 42B of the Administrative Appeals Tribunal Act 1975 is also decisive in the resolution of these appeals.' 26 On 21 March 2005 the respondent filed its Statement of Facts and Contentions. This Statement was, so the material before this Court indicates, given to the applicant on the morning of the hearing at the Tribunal, 24 March 2005, shortly before the hearing commenced. In the Statement of Facts and Contentions the respondent contended, amongst other things, that the applicant be declared vexatious and further applications only be made with the leave of the Tribunal. The Tribunal indicated at the hearing that it would deal with the s 42B issue first. 27 The Tribunal appears to have given no attention to the question of whether the application by the respondent contained in its Statement of Facts and Contentions was made in circumstances which accorded with the principles of natural justice, including the right properly to be heard. 28 The Tribunal in its Reasons given on 25 July 2005 contains an extensive, and it has to be said, precious analysis, of legislation concerning frivolous or vexatious applications, including the provisions in the High Court Rules, the Federal Court Rules , the Federal Magistrates Court Rules, the Uniform Civil Procedure Rules 1999 made under the Supreme Court of Queensland Act 1991 (Qld), and the Supreme Court Act 1970 (NSW). Moreover the elaborate 'Review of the Jurisprudence on section 42B' undertaken in the Reasons for Decision reveals a fundamental misunderstanding of the operation of s 42B. 29 The Tribunal referred to the judgment of French J in Duncan v Fayle [2004] FCA 723 , but failed to understand the Reasons for Judgment of French J. His Honour said at par [22] 'A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed. ' (emphasis added) 30 The Tribunal, at par [34], referred to passages from Re Williams and Australian Electoral Commission (1995) 21 AAR 467, preciously noting the case to be ' the fons et origo (or alternatively, the locus classicus) of section 42B jurisprudence.' The Tribunal referred to what it considered the critical passage: ' that the situation... falls within the provisions of s 42B...not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings. Moreover that collateral purpose is itself a futile one.' As that passage demonstrates, the Tribunal in re Williams held that s 42B applied because the proceedings were futile, and the collateral purpose of the applicant was irrelevant to any issue in the proceedings, and was itself futile. 31 The decision of the Tribunal to conclude that the proceedings, being the application to the Tribunal, was frivolous or vexatious, seems to have been based, in part, on its conclusion expressed in par [40] of its Reasons: '... in this case, the Applicant conceded in cross-examination that his objective in pursing his claims through Centrelink, the Social Security Appeals Tribunal and this Tribunal (and from this juncture, the Federal Court) was to pressure (or coerce) Centrelink to grant him his age pension by dint of his successive applications. Re-examination by the Applicant did not repair this damaging concession elicited during cross-examination.' 32 Moreover, the Tribunal said in par [48] of its Reasons concerning the claim for the Age Pension before it: ' ... This age pension claim suffers from the same defects in content that were identified by McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and which were the subject of an unsuccessful appeal to the Federal Court in the proceedings determined against the Applicant as Theo v Secretary, Department of Family and Community Services [2005] FCA 880. The Tribunal notes that the Federal Court carefully reviewed the factual history and applicable law of the Applicant's previous unsuccessful claim for age pension made in October 2003 (refer in particular to paragraphs [19] [37] and [51] [53]). The Tribunal took into consideration that the Applicant initiated the previous application for merits-based review from the Social Security Appeals Tribunal to this Tribunal that culminated in the decision of McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 , as well as the subsequent appeal to the Federal Court which culminated in the decision in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. ' (emphasis added) and later gave the reasons in par [49] set out above at par [17]. Paragraph [49] of the Tribunal's reasons concluded: '...Proceeding by analogy, this Tribunal can employ the doctrine of res judicata ( Re Irving and Repatriation Commission (1997) 46 AA 20 at 25; [16]) in dealing with successive claims by applicants for income support benefits. The Tribunal stresses that reliance upon res judicata in this case is simply by way of analogy in connection with the section 42B application, not by way of direct application.' 33 As the Tribunal noted in par [3] of its Reasons, the role of the Tribunal is to reach the correct and preferable decision on the basis of the material before it . The Tribunal proceeds de novo . The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it . 34 The applicant has made many applications concerning his entitlement to an Age Pension. In those applications, he had filed much material concerning the Solon Theo Trust. It may be that the terseness of his reply to the request for information and the paucity of it before the rejection of his application for Age Pension on 16 August 2004 was a consequence of this fact. 35 Before the AAT he was expressly asked, 'Do you want me to take note of the T documents from those previous hearings?' The AAT noted, 'I think Mr Ffrench [the departmental advocate] is actually trying to help you out.' Importantly, the AAT asked, 'Do you want the Tribunal to have regard to the previous Tribunal documents from earlier hearings?' ; to which Mr Theo answered, ' Yes.' The Tribunal said 'I'm happy to take them on board and Mr Ffrench has offered or undertaken to provide those and I'm happy to consider them.' 36 The documents that were thus before the Tribunal on the application for review of the decision concerning Mr Theo's entitlement to an Age Pension were much more extensive than the replies the applicant gave to the request for information by Centrelink in the letter of 16 July 2004. They included an affidavit dated 26 March 2003 in which Mr Theo, amongst other things, swears: '1) Since the 14.12.01 I am not involved in any Trusts.


case_outcome: cited

case_text: discretion conferred by s 87(1) must be exercised judicially, and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7] . One of the most important purposes of the Act is the resolution of disputes by negotiation and agreement rather than by litigation.


case_title: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

case_text: North J said in Lovett on behalf of the Gunditjmara People v State of Victoria (' Lovett ') [2007] FCA 474 at [61] (with whom I respectfully agree): "... when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis...". It follows that the central issue in an application for a consent determination under s 87 of the Act is whether there exists a free and informed agreement between the parties. Turning then to the involvement of the state respondent party, the Northern Territory. In my view, it is clear on the evidence before me that the Northern Territory has taken a real and significant interest in the proceedings. Before the proposed consent orders were signed, the Northern Territory had Emeritus Professor Sansom consider the anthropological reports prepared by Mr Elliott going to the existence of native title. Professor Sansom's queries in relation to the report initially provided were subsequently answered to his satisfaction in Mr Elliott's supplementary report. Furthermore, in March 2009, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title. The joint submissions of the applicant and the Northern Territory indicate that the parties are in agreement that there is adequate evidence to support the consent determination. I understand the term adequate evidence to reflect the fact that there is a credible or arguable basis for the application, which in my view is the appropriate standard: see Lovett at [37]-[38]. I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory. For these reasons, I am satisfied that it is appropriate that the Court make the consent determination sought. The applicant has nominated the Ilkewartn Ywel Aboriginal Corporation ('the Corporation') as the prescribed body corporate to hold in trust the native title of the claimant group following the determination of these proceedings pursuant to s 57(2) of the Act. The nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act have been met.


case_title: Munn (for and on behalf of the Gungari People) v Queensland [2001] FCA 1229

case_text: assessing whether a free and informed agreement has been reached, the Court pays close regard to the process the state respondent party has followed in assessing the evidence establishing the existence of native title. On this aspect, Emmett J observed in Munn v Queensland (' Munn ')[2001] FCA 1229; [2001] FCA 1229 ; (2001) 115 FCR 109 that (at [29]): "... [This] would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely." I respectfully agree with his Honour's observations. Other important factors that various decisions of the Court have pointed to in assessing whether the agreement reached was free and informed, include: In this case, the parties have had the benefit of independent and competent legal representation in arriving at the agreement, the terms of the minute are unambiguous and clear and the agreement has been produced as a result of a process of negotiation.


case_title: Nankiriny v State of Western Australia [2004] FCA 1156


case_title: Patta Warumungu v Northern Territory of Australia [2007] FCA 1386


case_text: is only the second consent determination in the southern part of the Northern Territory and the third in the whole of the Northern Territory I made a consent determination in Elliott last week: see Wilson v Northern Territory [2009] FCA 800. Nonetheless, given the co-operative approach of the legal practitioners and the parties I have mentioned above, I am confident that these two consent determinations will be the first of many that the Court will be making in the Northern Territory in coming months and years. I congratulate the parties on reaching this agreement. In so doing, I congratulate the native title holders whose rights will now be recognised. The order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Ilkewartn and Ywel People, and is held by those peoples. Of course, this order does not grant something new to the Ilkewartn and Ywel peoples, it merely recognises what they have long held. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 7 August 2009 Solicitor for the Applicant: Kirsten Ellerker Solicitor for the Northern Territory Stephen Herne Date of Hearing: 7 August 2009 Date of Judgment: 7 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/834.html


case_text: Having found that the Minister considered whether to inform other ministers of his proposed decision to approve the channel deepening project, the next question is whether the belief that other ministers did not have administrative responsibilities relating to the project was so unreasonable that a reasonable minister could not have formed that belief. The applicant must establish that the Minister's conclusion, when viewed objectively, was "so devoid of any plausible justification that no reasonable [person] could have reached [it]": Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 per Lord Diplock. See also Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234 per Lord Greene MR; Fares Rural Meat & Livestock Co Pty Limited v Australian Meat & Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 166 per Gummow J; Peko-Wallsend at 41 per Mason J.


case_outcome: applied

case_text: And in Elias v Commissioner of Taxation [2002] FCA 845 ; (2002) 123 FCR 499 at 511; [2002] FCA 845 at [57] , Hely J said: Where, as here, a discretion is conferred in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not. It is largely for the decision-maker, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the compliant is that the decision-maker paid either too little or too much attention to a relevant factor: Aronson & Dyer, Judicial Review of Administrative Action (2 nd ed, 2000), p 225. 113 The applicant sought to make a case that the Minister was bound to take into account the impact of maintenance dredging, the impact of oil or chemical spills, and the impact of the removal and disposal of toxic sediment in the north of Port Phillip by implication from the subject matter, scope and purpose of the Act. The subject matter, scope and purpose of the Act was approached in the following way. The Act employs an assessment process to inform the Minister's decision. The process requires an assessment of relevant impacts of the action contemplated (s 87(1)). Relevant impacts are impacts which the action has, will have, or is likely to have, on the protected matters (s 82(1)). An impact is defined as an event or circumstance which is a direct consequence of the action, or where the event or consequence is an indirect consequence of the action, the action is the substantial cause of the event or circumstance (s 527E(1)). Certain secondary actions are within the definition of impacts if they are the foreseeable consequence of a primary action, and within the contemplation of the person undertaking the primary action (s 527E(2)). The applicant's written supplementary submissions then contended at [39]: It can be discerned from the scope and purpose of the EPBC Act that: a) a subsequent action made necessary by the action and the impacts of the subsequent action; and b) a risk assessed as overall significant (or as not insignificant or negligible) by reference to both the terms of likelihood of occurrence and in terms of the magnitude of consequences ought to be taken into account. 114 In order to establish this ground, the applicant presumably intended that the words "ought to" be read as "must".


case_text: On the evidence, I infer that the Minister did consider whether to inform other ministers under s 131(1)(a) of his proposed decision to approve the channel deepening project, and he determined not to do so on the advice of his department. He was entitled to rely on the recommendations of his department and their officers: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 30-31 per Gibbs CJ, and 65-66 per Brennan J ( Peko-Wallsend ). There is therefore no basis for the claim that the Minister failed to comply with s 131(1) in this regard. 102 Having found that the Minister considered whether to inform other ministers of his proposed decision to approve the channel deepening project, the next question is whether the belief that other ministers did not have administrative responsibilities relating to the project was so unreasonable that a reasonable minister could not have formed that belief. The applicant must establish that the Minister's conclusion, when viewed objectively, was "so devoid of any plausible justification that no reasonable [person] could have reached [it]": Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 per Lord Diplock. See also Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234 per Lord Greene MR; Fares Rural Meat & Livestock Co Pty Limited v Australian Meat & Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 166 per Gummow J; Peko-Wallsend at 41 per Mason J. 111 As to the first limb of the ground, it was necessary for the applicant to establish that s 136(1)(a) bound the Minister to take into account the three allegedly relevant matters. The proper approach was explained by Mason J in Peko-Wallsend Ltd at 39 40 as follows: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233. ... (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion... If the relevant factors and in this context I use this expression to refer to the factors which the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) HCA 62 ; (1979) 144 CLR 45 at 49-50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15 ; (1937) 56 CLR 746 at 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.


case_outcome: distinguished

case_text: The Appellant submitted that the case was on all fours with QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 (' QAAH '). In that case the majority of the Court found that whilst the Tribunal had adverted to Article 1C(5), it failed to apply it. Accordingly, in that case the matter was remitted to the Tribunal for further hearing and determination according to law. 41 QAAH may be readily distinguished from the present case. In QAAH the Appellant based his claim of a well-founded fear of persecution merely on a fear 'that the Taliban will kill him because he is of Hazara ethnicity'. However, in that case, the Tribunal's focus had been upon the Taliban's position as the government of Afghanistan, or at least that part of Afghanistan in which the appellant in QAAH had resided. It determined that there was not, in May 2004 'any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably foreseeable future, or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan'. 42 As Wilcox J pointed out in his reasons for judgment at [73] the circumstances that underlay the March 2000 recognition of the Appellant, in that case, as a refugee were not dependant upon the Taliban's status as a governing authority in Afghanistan. The Tribunal failed to address whether the circumstances which led to his fear that the Taliban would kill him because of his Hazaran ethnicity have ceased to exist. 43 The present case is quite different. Plainly, the Tribunal addressed its Article 1C(5) finding on the Appellant's claim to refugee status because of his fear that as a Hazara he would be conscripted by the Taliban to fight for them or, were he to return to Afghanistan in March 2000, be at risk of being killed. The Tribunal did not misdirect itself. 44 In respect of changes which may allow a conclusion that earlier circumstances have ceased to exist the Appellant identified three requirements that should exist 'before the consideration of cessation is warranted', to which Wilcox J referred in QAAH at [60], citing JC Hathaway, The Law of Refugee Status , Butterworths, Canada, 1991 at 200-203, as follows:- '(i) "the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists"; (ii) "there must be reason to believe that the substantial political change is truly effective"; it cannot be said "there has truly been a fundamental change of circumstances when the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights"; mere progress towards respect is not enough; and (iii) "the change of circumstances must be shown to be durable".' 45 The Appellant placed particular emphasis upon the requirement that the change of circumstances must be shown to be durable. 46 The findings of the Tribunal in the present case, referred to above, clearly demonstrate that it properly addressed this issue. The durability of the changed circumstances is further evident in the findings of the Tribunal on the Appellant's later application for a permanent protection visa where the Tribunal Member said:- '... Today's Afghanistan, however, has a reasonably representative government chosen by a loya jirga, a new constitution recognising the rights of minorities such as Hazaras, and is making a concerted attempt to establish proper governance and to hold national elections, rebuild infrastructure, and disarm the militias. The applicant is returning to a part of Afghanistan where the population is Hazara and Shi'a, like himself. It is administered by politicians of the Wahdat Party (Khalili faction), a party under whose control the applicant has lived before, without any specific or particular problems (other than having to pay taxes). There are no reports of militia skirmishes, or attacks on Hazara and/or Shi'a people, emanating from his region. To the contrary, the UNHCR has recently described the situation as relatively stable and safe and noted that there have been no reports of conflicts between Hazaras and other groups since the end of the Taliban era. The applicant has not claimed any distinguishing characteristics about himself which may make him a target of adverse treatment, but rather has relied on his ethnicity and his religion, and other characteristics (such as being a returnee from a western country, and being apolitical) which he shares with many others. This of course does not mean that shared characteristics cannot ground refugee claims but in this case, the Tribunal is not satisfied that there is a real chance that harm amounting to persecution will befall the applicant, in the reasonably foreseeable future. ...' 47 In the foregoing circumstances, ground of appeal 1 fails. 48 The Tribunal recorded the Appellant's claim in respect of which the Appellant alleges the Tribunal failed to make a finding as follows:- ' [The appellant] noted that the village [his home village] is under the control of the Khalili faction of the Wahdat Party (WP). He would be expected to join the WP, and the applicant does not wish to do so, and he predicts that he will be forced to do so "at gunpoint". As a member of the WP, he would then be forced to join its militia or alternatively, pay off the commanders (which he cannot afford to do). ...' 49 The Tribunal put it to the Appellant that he had not feared persecution in his village (or his country) prior to the Taliban, and given that the situation in his village had returned to its pre-Taliban state, there was no reason that he could not resume his life there. The Appellant asserted that in pre-Taliban days there were problems with political parties: people were either pressured to join or alternatively to pay 'taxes' for a 'defence fund'. The Appellant, pre-Taliban, elected to pay 'taxes'. His view was that such a requirement would be continuing. 50 Contrary to the Appellant's submission, the Tribunal did make a finding, adverse to the Appellant on this matter as follows:- 'When he [the Appellant] lived in the village, he accepted that the Wahdat Party was the local force: it was that party which issued ID cards and the like. Like other villagers, he resented having to pay "taxes" demanded of him by the party, and did not volunteer to join its militia (unlike his brother, who was badly wounded in its service). He made no claims, nor does the evidence suggest, that he suffered any adverse treatment for reason of his political views (or lack of them) or that he was singled out in any way from any other like-minded villagers. The same people appear to have resumed power in the applicant's village as were in control prior to the Taliban. If they treat the applicant in the same way as they did previously and there is no reason to suggest otherwise then the applicant need not fear Convention-related persecution.'


case_text: is well established that the test of a prima facie case for the purposes of O 8 r 2 is whether there is material before the Court from which inferences are open that, if translated into findings of fact, would support the relief claimed State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J) affirmed on appeal in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317.


case_title: Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J)


case_title: Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539


case_title: Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317


case_text: Section 723 of the Act does not impose an obligation to lodge a quotation application within seven days of the date of a prospectus. Strictly speaking, read with s 724, it simply attaches certain consequences to the failure to do so. Nevertheless, s 1322(4)(d) has been construed as authorising an extension of the seven day period specified in s 723(3)(b): Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 at [26] - [29] ; Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]; Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at [20]-[21]; In the Matter of Geopacific Resources NL (2007) 25 ACLC 226 [16].


case_title: Re Wave Capital Ltd (2003) 47 ACSR 418


case_title: Re Tony Barlow Australia Ltd (2005) 53 ACSR 1


case_title: In the Matter of Geopacific Resources NL (2007) 25 ACLC 226


case_outcome: considered

case_text: In Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545 (" Aristocrat ") Allsop J at [4]-[9] observed: There has been a practice in this Court for as long as I can recall in relation to intellectual property matters, except in urgent cases where immediate orders are required, for the Court to direct the parties to bring in short minutes of order in relation to the reasons for decision. By and large, this is a salutary and wise course, given the complexities of many intellectual property cases, including patent cases, and the possibility of complex multi-claimed specifications and patents not being adequately, or fully, dealt with by substantive reasons. With skilled counsel, the quickest and most efficient way of dealing with orders is to provide reasons with or without draft orders and for counsel to attend to the appropriate form of orders to be brought to Court. The danger that lurks in that salutary practice is that, without orders being made, it might be seen that the case has not finished and if parties win or lose, for reasons that may or may not be such as to be helped by further evidence, there may be a temptation to add to evidence and/or submissions to remedy what are perceived as errors or lack of attention in the reasons. The balance between obtaining the correct orders with the assistance of counsel and dealing with matters truly overlooked and simply having another go may at times be difficult to assess. However, I think it is necessary to be vigilant to ensure that the hearing of the matter and the provision of reasons with a call for the bringing in of short minutes is not viewed as the first stage of the debate, to be continued by ever reducing iterations of analysis and evidence. This is especially so in relation to appeals from the Office and the Commissioner which, for the reasons I expressed in paragraphs [5] and following of my reasons of 7 February 2007, should be understood as not ultimate final hearings as to the validity of the patent. These hearings should be, as far as the complexity of a matter allows, dealt with as expeditiously as possible. I have had regard to the careful submissions of the applicant filed on 10 May 2007 and, in particular, [15] through [44]. The principles governing re-opening are set out in the cases there identified and I have had particular regard to what was said by Hill J in Hyster Australia Proprietary Limited v Anti-Dumping Authority (1993) 41 FCR 259 ; Wentworth v Rogers [2002] NSWSC 921 ; Twenty-First Australia Inc v Shade NSWSC (unreported, New South Wales Supreme Court, Equity Division, Young J, 31 July 1998), AB v Federal Commissioner of Taxation (1998) 157 ALR 510 , and Smith v New South Wales Bar Association (1992) 176 CLR 256. The questioning of re-opening is, as Hill J said in Hyster 41 FCR 259 , a question of a general judicial discretion which has bearing down on it various considerations: s 22 of the Federal Court of Australia Act 1976 (Cth), the interests of justice in all the circumstances of the case between the parties, the importance of finality of litigation, the importance of the public register kept by the Commissioner for Patents being correct and public confidence in the prompt despatch of the business of this Court. 7 Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.


case_text: This is not, strictly speaking, a case of recalling a judgment. No final orders have as yet been pronounced, let alone entered, on Mr Pantzer's cross-claim. The case is thus distinguishable from Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 where the High Court had pronounced orders although they had not been formally entered. 7 Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.


case_text: Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.


case_text: I considered the order or orders appropriate to be made on Mr Pantzer's cross-claim at [90]-[92] of the reasons for judgment of 11 April 2008. I there said: As already mentioned, order 1 of the consent orders of 11 March 2002 recorded that Dr Wenkart relevantly agreed to pay the remuneration, costs, charges and expenses to which Mr Pantzer was lawfully entitled or may become lawfully entitled "within 28 days of determination of the quantum of the same". Having regard to the approach of the Full Court in Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466 , it seems that order 1 must be understood distributively; that is, as recording an agreement that upon the quantum of any claim by Mr Pantzer for remuneration, costs, charges and expenses being determined, Dr Wenkart agreed to pay the same within 28 days. I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart's bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). 16 Dr Wenkart contended that the Court should withdraw the reasons set out in [92] and reconsider its holding in the light of the other findings made. He submitted that "the only available course is to simply dismiss the cross-claim with costs". 17 It is not entirely clear whether Dr Wenkart contended that the Court did not have power to do other than dismiss the cross-claim or whether he contended simply that it would be inappropriate for the Court to do otherwise. An exchange between me and senior counsel for Dr Wenkart, Mr Sheahan SC, on 12 November 2007 indicates that, at least at that time, Dr Wenkart was not challenging the power of the Court to find that Mr Pantzer's entitlement to relief was established by reference to events that occurred after the date of the filing of his cross-claim. That exchange was relevantly as follows: MR SHEAHAN: There might be a timing issue in terms of those were amounts that accrued over a period mostly after the commencement of these proceedings and we would submit that to the extent that they accrued after the commencement of these proceedings they're not pertinent to what we will submit is the fundamental question, was there a need to go to the court for its aid when the proceedings commenced? HER HONOUR: I expressed once a view about what the order of Beaumont J was intended to achieve and therefore how it should be constructed and I erred in doing that and I therefore had to have a second thought about that and I think the view reflected in the judgment I've most recently published is that it must have been intended to be a charge to secure the amounts owing from time to time. MR SHEAHAN: Yes. HER HONOUR: Therefore even if certain amounts were [not] due at the time the proceedings were commenced but they became due thereafter one can now rely on evidence that arises after the institution of a proceeding, can't one? MR SHEAHAN: Yes. HER HONOUR: Even though the cause of action, I think, needs to have existed. What would the significance of all of that be? MR SHEAHAN: Your Honour, since the Judicature Act it's been possible to add causes of action based upon events that arose since the commencement of the proceedings. So there's no issue as to the possibility of raising such claims. The question is really as to the propriety of the commencement of such claims. 18 The above exchange caused me to believe that Dr Wenkart accepted that, in determining Mr Pantzer's cross-claim, the Court could take into account amounts to which Mr Pantzer became "legally entitled" from Dr Wenkart within the meaning of the consent orders made by Beaumont J on 11 March 2002 after the date on which the cross-claim was filed albeit that he contended that the preferable course would be not to do so. I indicated in my reasons for judgment of 11 April 2008 at [92] why I regarded the option of simply dismissing Mr Pantzer's cross-claim on the basis that it had been instituted prematurely to be undesirable. It seemed to me to be a course likely to result in the institution of yet further litigation between the parties. This did not seem to me to be in the public interest or in the interests of the parties, particularly having regard to the Court's wide powers to formulate orders for costs. It may be that I would have taken a different view had Dr Wenkart, at an early stage in this regrettable litigious saga, identified, perhaps as a preliminary point for the Court's determination, his claim that Mr Pantzer's cross-claim was bound to fail as it had been filed prematurely. He did not do so. Rather, as it seems to me, he utilised the proceeding as a vehicle to obtain judicial review of virtually every aspect of Mr Pantzer's claim for remuneration as trustee of his estate. 19 Section 30 of the Bankruptcy Act relevantly provides: 1) The Court: (a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX , X or XI coming within the cognizance of the Court; and (b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter. (2) The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched. 23 At [90]-[91], having regard to the approach of the Full Court in Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466 , I found that as at the date of the filing of the cross-claim Mr Pantzer, in his capacity as trustee, had received a larger amount by way of receipts than the amount of the remuneration, costs, charges and expenses to which he was then "lawfully entitled" from Dr Wenkart. I therefore concluded that Mr Pantzer had failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. 24 Mr Pantzer has now submitted that [82]-[83] of the reasons for judgment of 11 April 2008 determined an issue on a basis which either had not been contended for by Dr Wenkart or which ought not to have been entertained without Mr Pantzer being given an opportunity to respond including by leading additional evidence. The issue identified by Mr Pantzer is whether, as at the date of the filing of his cross-claim, he had a lawful entitlement to be reimbursed from the bankrupt estate in respect of monies paid to the legal firm of Cutler Hughes & Harris. 25 I reject the above submission. By agreement of the parties I assumed responsibility to complete the hearing and determination of the matter "standing in the shoes" of both Beaumont and Lindgren JJ. As [56]-[82] of the reasons for judgment of 11 April 2008 record, the issue of Mr Pantzer's entitlement to be reimbursed from the bankrupt estate in respect of monies paid to Cutler Hughes & Harris was a live issue before each of Beaumont and Lindgren JJ. Moreover, paras 121-126 of Dr Wenkart's written submissions dated 29 June 2005 include the submission that the certificate of taxation in the amount of $268,477.54 issued on 17 February 2003 followed a taxation by Ms Sexton of the entirety of the work relevantly performed by Cutler Hughes & Harris. That submission was consistent with evidence given by Ms Sexton before Beaumont J, the accuracy of which was accepted before me by Mr Pantzer, that she was appointed "to tax the solicitor-client bills of costs of Cutler Hughes & Harris in relation to work ... done in the estate of Dr Wenkart". Additionally, by written submission dated 3 December 2007 Dr Wenkart disputed a schedule of receipts and payments provided to the Court by Mr Pantzer pursuant to an order of the Court dated 12 November 2007. By those submissions Dr Wenkart asserted: ... the amount sought by Cutler Hughes and Harris paid and unpaid was fully taxed (including Counsel's fees). Thus, the total amount to which Mr Pantzer was entitled to reimbursement from the estate was $268,477.54 (being the amount of the certificate of taxation issued by Ms Sexton). It appears that Mr Pantzer paid out more than this money to third party providers. None of these providers have (sic) challenged the taxation of the amounts which led to an entitlement which was less than the amounts they received. No evidence was led by Mr Pantzer other than to confirm the opposite. Whether Mr Pantzer seeks the recovery of the amounts overpaid to Cutler Hughes and Harris and others is a matter for him. Mr Pantzer proceeded to have all of the legal costs (including costs of Counsel and associated disbursements) which had been sought from him (both paid and unpaid) until that time taxed. This taxation process commenced some time after the annulment. It was a necessary precondition to the proof by Mr Pantzer of his entitlement to have these disbursements paid from the estate. The evidence given by Ms Sexton was that she was not presented with any bills and that she received all of the legal files from Cutler Hughes and Harris and proceeded to in effect prepare bills which she then taxed. Mr Johnson conceded this point before Lindgren J (in the presence of Mr Pantzer); namely, that all these costs had been assessed. That is why the 21 October 2003 orders were framed this way.


case_title: Wenkart v Pantzer [2007] FCA 1589

case_text: I have twice before published reasons for judgment in this matter; Wenkart v Pantzer [2007] FCA 1589 published on 16 October 2007 and Wenkart v Pantzer [2008] FCA 478 published on 11 April 2008. These reasons for judgment should be read together with my earlier reasons for judgment. 2 The history and subject matter of this proceeding is summarised in Wenkart v Pantzer [2007] FCA 1589 at [2] - [35] . As I noted in Wenkart v Pantzer [2008] FCA 478 at [1] - [8] , no agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment of 16 October 2007. Indeed, after hearing further from the parties, I accepted that I had not dealt with all outstanding issues between the parties. Those outstanding issues were dealt with in Wenkart v Pantzer [2008] FCA 478. When publishing those reasons for judgment I stood the proceeding over to a date to be fixed for the purpose of the making of orders giving effect to the reasons, including orders as to costs. 28 I discussed the above issue in the reasons for judgment of 11 April 2008 at [59]-[82]. As is there made plain, I am satisfied that Lindgren J made the orders dated 21 October 2003 in the terms that he did in the belief that certain advice given to him by Mr Pantzer's then counsel was accurate (see [80]-[81] of the reasons for judgment of 11 April 2008). Evidence tending to establish that the advice given to Lindgren J was inaccurate might provide a basis for the variation of the orders made by Lindgren J. In earlier reasons for judgment I have drawn attention to the importance in this proceeding of the effect of the orders made by Lindgren J and to the possibility of an application being made for those orders to be varied (see, for example, Wenkart v Pantzer [2007] FCA 1589 at [27] -28]). No such application has been made. Evidence of the kind that Mr Pantzer now seeks leave to adduce would not impact on the proper construction of the orders made by his Honour. The true meaning of the orders made by his Honour is to be determined by reference to the meaning that his Honour intended the orders to have. His Honour's intention can be ascertained by reference to the transcript of the hearing before him. 29 For the above reasons I do not consider it appropriate to withdraw and reconsider [56]-[91] of the reasons for judgment of 11 April 2008 or to give Mr Pantzer leave to re-open his case to tender further evidence. 30 The parties have not reached an agreement as to the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer's cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart's Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer's cross-claim. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 16 September 2008 Counsel for the Applicant and First Cross-Respondent: Mr M Green Solicitor for the Applicant and First Cross-Respondent: Bruce Stewart Dimarco Counsel for the First Respondent and Cross-Claimant: Mr S Golledge Solicitor for the First Respondent and Cross-claimant: Bartier Perry Date of Hearing: 31 July 2008 Date of Judgment: 16 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1387.html


case_title: Wenkart v Pantzer [2008] FCA 478

case_text: I have twice before published reasons for judgment in this matter; Wenkart v Pantzer [2007] FCA 1589 published on 16 October 2007 and Wenkart v Pantzer [2008] FCA 478 published on 11 April 2008. These reasons for judgment should be read together with my earlier reasons for judgment. 2 The history and subject matter of this proceeding is summarised in Wenkart v Pantzer [2007] FCA 1589 at [2] - [35] . As I noted in Wenkart v Pantzer [2008] FCA 478 at [1] - [8] , no agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment of 16 October 2007. Indeed, after hearing further from the parties, I accepted that I had not dealt with all outstanding issues between the parties. Those outstanding issues were dealt with in Wenkart v Pantzer [2008] FCA 478. When publishing those reasons for judgment I stood the proceeding over to a date to be fixed for the purpose of the making of orders giving effect to the reasons, including orders as to costs.


case_text: In my view, the authorities support the proposition that, in considering whether removal is reasonably practicable, physical considerations, such as the health of the person to be removed are relevant. So much appears from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [52] ( NATB ), Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [7] and albeit in perhaps quite circumscribed circumstances in the judgment of WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 at [86] . Of course, I do not take into account any consequences which may be inflicted upon the applicant upon his return to Turkey in the light of the decision which has been made about his protection visa application. To do so would fly in the face of NATB and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146. That itself introduces a somewhat difficult perspective in the present matter because, unlike other cases in which the health of the person being removed has been considered, the damage to the health of this applicant by the process of removal is related to his fears of what may happen to him if he were to return to Turkey. Such matters are more appropriately considered in final determination of the claim.


case_title: Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181


case_title: WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332


case_title: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146


case_outcome: related

case_text: unjustified threats Claim will turn on the resolution of the other issues referred to in [6] and [7] above. That Claim was adjourned on 21 October 2008 because Mr Ogilvie, the principal witness to be called by Flameglow in support of that Claim, was ill and could not attend Court when the hearing of the other liability issues took place. The orders made on that occasion and the reasons for them are to be found in Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583. In addition, Flameglow did not participate to any real extent in the hearing before me. Its participation was confined to seeking to have its unjustified threats claim adjourned and to seeking to read an affidavit sworn by Mr Ogilvie, which I rejected. The application for the Patent was filed on 9 February 1990. At that time, the provisions of the Patents Act 1952 (Cth) ( the 1952 Act ) were in force. The Patent was granted on 20 July 1992.