case_text: My Chambers indicated to Burness that I did not want any further written submissions or further affidavit material from him in response to the defendants at this stage in the proceeding. By a subsequent letter dated 4 January 2006, my associate drew the parties' attention to Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 at 228; and Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 and invited their submissions on these cases, as well as costs, including the position of RAM Parts. 41 Section 536 gives the Court a discretionary power: that is, it " may inquire into the matter" (emphasis added): see Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 (" Glowblind ") at 217 per Burchett AJ. Importantly, s 536 does not provide an automatic right to an inquiry upon application. As his Honour said in Glowblind at 217: "Where an inquiry under s 536 is appropriate, this will be because the court considers that inquiry to be 'in the public interest', and 'it is satisfied that there is a prima facie case' to justify subjecting the liquidator to it." See also Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525 (" Dickens ") at 526, where Young J noted that "it is not in the public interest that anybody who feels that he or she or it has a grievance against the liquidator which they hope might be able to be proved in due course may set in train a full blown inquiry". 44 Section 536 "is to be distinguished from s 1321 , which confers the jurisdiction that is generally appropriate to be exercised when the reversal or modification of a decision of the liquidator is in question": see Glowbind at 217. Section 1321 was not available to the defendants because, under Rule 14.1(2)(a) of the Federal Court (Corporations) Rules 2000 (Cth), any appeal under s 1321 of an act, omission or decision of a liquidator must be filed within "21 days after the date of the act, omission or decision appealed against". 45 Considering the first two factors in this case, I accept that, on the face of it, the defendants have raised some valid concerns about the affidavit that Burness filed in support of the application he made on 3 December 2003 for a warrant under s 530C of the Corporations Act 2001 . In particular, this affidavit did not fully disclose that other companies were operating from the 420 Burnley Street premises. Moreover, given McDermott's lax (to put it mildly) record keeping, Burness probably should have noted that it would be difficult for him to distinguish property belonging to Richmond Sales from property belonging to other persons or from property belonging to other McDermott companies. It should be borne in mind, however, that the Court record indicates that Burness was acting on legal advice in these proceedings. Nevertheless, even if I were to accept all of the defendants' criticisms of Burness's conduct in securing the warrant, I do not consider these matters sufficient to justify, at this late stage, an inquiry under s 536. There are far weightier considerations that militate against an inquiry.


case_outcome: related

case_text: 30 March 2009, I delivered reasons for judgment and made orders as a consequence of those reasons ( Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd [2009] FCA 300). The orders which I made on 30 March 2009 were interlocutory. The proceedings have been listed before me today for final hearing. As was the case on 30 March 2009, there has been no appearance either by or on behalf of the respondent although the listing of the matter today was notified to the respondent at its registered office. The matter has also been called outside the Court. In the circumstances, the applicant seeks relief in the absence of the respondent. The relief which the applicant seeks is set out in Short Minutes of Order which have been handed up to me and which I shall mark as MFI-1.


case_outcome: cited

case_text: The weight the Tribunal accords the material before it is ultimately a factual matter for the Tribunal ( Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 ; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985 1986) [1986] HCA 40 ; 162 CLR 24 ; Tefonu Pty Limited v Insurance & Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 ; NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 ; (2006) 93 ALD 333). Whatever the boundaries of jurisdictional error might be, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal ( NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin at Lander JJ at [10]). An appellant's disagreement with the conclusion reached as a result of the assessment of the weight to be attributed to particular material and the fact-finding by the Tribunal does not amount to an error of law ( Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272). In addition, there is no error of law in the Tribunal making a wrong finding of fact ( Abebe v Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510 at 560 [137] . As to reliance upon 'country information' or any other information, the Full Court made these observations in NAHI at [11], [12] and [13] of the reasons: 11. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that.' 12. ... The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. 13. It is clear from the reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.


case_title: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 ; (2006) 93 ALD 333


case_title: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10


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


case_title: Abebe v Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510


case_text: The motion before me is a predictable sequel to the circumscribed leave I gave Mr Kowalski in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 to file and serve an amended application and statement of claim. That leave was exercised but the respondents (MMA Super and AMP Super) now seek orders either that the proceedings be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), or that the statement of claim be struck out under O 11 r 16 of the Federal Court Rules as disclosing no reasonable cause of action. I intend taking the latter course for the reason that, while the pleading is misguided in its thrust, it cannot be said that the underlying complaint that appears to inform it may not suggest a reasonable cause of action. In their submissions the respondents, while not admitting this to be the case, have come close to identifying that cause of action, though without conceding that it is reasonably arguable or that they do not have a good defence to it. 2 As I indicated in Kowalski (No 1) , the actual dispute between Mr Kowalski and his past employer, Mitsubishi Motors Australia Ltd (MMAL), has a long history dating to before 16 March 1994 when his employment with that company ceased. MMA Super, a subsidiary of MMAL, was the trustee of the MMA Staff Superannuation Fund and was brought into that dispute because of claims Mr Kowalski has asserted as to his superannuation entitlements consequent upon the cessation of his employment with MMAL. It is unnecessary for present purposes to outline the many proceedings he has brought against MMAL and MMA Super. 3 Though his complaints in substance relate to defaults of MMA Super, AMP Super has been joined in this proceeding because by a deed of 15 June 2006 the trust fund was transferred to it as trustee and MMA Super was then wound up as a superannuation entity. The relief Mr Kowalski seeks includes an order for payment of a sum of money out of the fund, hence the joinder of AMP Super.


case_text: While the structure of the Trust Deed and Schedule C is such that, in the circumstances, Mr Kowalski had some entitlement to be paid a sum out of the fund, the deed did not give him any absolute entitlement to be paid a TPD Benefit as such. For such a benefit to be payable the trustee had to determine whether Mr Kowalski fell within the definition of "Total and Permanent Disablement" in cl 1(6) of the Trust Deed. Part (b) of that definition required the trustee to form an opinion as to whether Mr Kowalski was incapacitated to such an extent as to render him unlikely ever to engage or work for reward in any occupation for which he is reasonably suited by education, training or experience. The cl 1(6) determination and the opinion embedded in it were ones for the trustee not the court: see Ford and Lee, Principles of the Law of Trusts , [5185] and the cases cited therein. Accordingly, absent a favourable determination by the trustee, it cannot be said, as Mr Kowalski claims in his pleading, that he has an entitlement to a TPD Benefit: but cf Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 at [68] where the court itself executed the trust a rare event. 18 Again the pleading alleges repeated failures by the trustee to consider any of the medical evidence that was available to it and hence whether he was entitled to a TPD Benefit. Assuming that there were times at which a duty to consider so arose, the most that Mr Kowalski could expect from a court by way of relief if any would be a direction to the trustee to consider whether, in the circumstances, a cl 1(6) determination should be made and this on the basis of an unreasonable and culpable failure to consider the matter. Mr Kowalski does not seek such relief in this proceeding. 21 There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).


case_text: Underlying Mr Kowalski's complaint about the trustee's omission, though, would seem to be an unformulated assertion that a determination under cl 1(6) adverse to him had been made. I put the matter this way for this reason. I earlier referred to the correspondence between Mr Kowalski and the trustee concerning his formal application for a TPD Benefit. This evidence was put on by Mr Kowalski. In the course of that correspondence the trustee's solicitors indicated on instruction that "the Trustee has previously considered and declined your claim for a TPD benefit from the Fund arising from your employment to 16 March 1994 and including its cessation on that date". Mr Kowalski is unrepresented. In the distinctive circumstances of this matter where he cannot be expected fully to understand the mysteries of the law of trusts, it is proper for the court to endeavour within appropriate limits to ascertain the right that confusedly such a litigant could well be seeking to assert: cf Neil v Nott [1994] HCA 23 ; (1994) 121 ALR 148 at 150. 20 In his oral submissions Mr Kowalski indicated that, though it was said in the 24 February 2006 letter that the trustee had made a determination adverse to him, he has not been provided with a copy of it or, I would infer, the reasons for it. He equally says he has put on such evidence as he could to satisfy the trustee for cl 1(6) purposes.


case_text: There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 23 Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. 25 For present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that the discretion was not exercised in good faith; that there was not a real and genuine consideration of the correct question; that the discretion was not exercised for the purpose for which it was conferred; if the trustee has given reasons for its exercise of discretion, that those reasons were not sound; and, if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.


case_text: There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 23 Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.


case_text: There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).


case_title: Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107


case_text: There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 26 In applying these grounds it is important to have regard to the superannuation context in which the trustee's decision is to be made. As Bryson J commented in Vidovic v Email Superannuation Pty Ltd : It is a marked anomaly to use mechanisms drawn from fields of law remote from employment and relating to trusts for bounty or charity to administer important entitlements in an employment relationship. I find it difficult to understand why the entrenchment of such important rights against review is so usual, and why this kind of arrangement is so commonly found acceptable to employees in view of the economic significance of such decisions and the economic function of superannuation, not well represented in the terms of the documents, as a contracted employment benefit for which value is given. These anomalies appear particularly clearly where, as in this case, the fund out of which benefits are paid is contributory and an employee claiming benefits is claiming to be paid, at least in part, in his own coin. In an arrangement with a contractual character in which value is given in the expectation that a benefit will be available in stated circumstances, a construction in which one party has an entire and unreviewable power to determine whether that party will pay a sum of money to the other or retain it in its own funds has an element of absurdity. Language which appears to produce such a result serves to demonstrate the strength of the expectation of all concerned that the exercise of the power will be honest and reasonable. It is only on that expectation that the transaction could, as a practical matter, be expected to take place at all, and there would have to be an entirely explicit exclusion of such an expectation before language literally capable of excluding it should be given that construction. The context of the employment relationship has an influence which it is impossible to exclude from judicial scrutiny and perceptions of reasonableness of decisions under superannuation deeds. 27 I have dealt with judicial review of discretionary decisions at some length. It probably provides the appropriate rubric which Mr Kowalski has been seeking to divine to have the propriety of his denial of a TPD Benefit tested. I do not necessarily suggest that he will be able to plead a reasonably arguable case that the MMA Super's decision miscarried, let alone that he will succeed in establishing such a case. Nor do I suggest that MMA Super and AMP Super would have no defence to such a claim were it to be made. Nonetheless, in light of the material before me, I do think that the interests of justice require that Mr Kowalski be given one last opportunity I emphasise this to file and serve a further amended application and statement of claim. 28 For the sake of completeness, I should note that, at best, the claim for negligence Mr Kowalski has made hangs off the breach of trust he has alleged. In striking out that claim I necessarily will order that this claim be struck out. I express no view on the viability of any further negligence claim.


case_text: Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.


case_title: Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139


case_title: Karger v Paul [1984] VR 161

case_text: For present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that the discretion was not exercised in good faith; that there was not a real and genuine consideration of the correct question; that the discretion was not exercised for the purpose for which it was conferred; if the trustee has given reasons for its exercise of discretion, that those reasons were not sound; and, if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.


case_text: That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247. 46 To grant leave to interrogate in the circumstances presented here would be to encourage not merely "fishing" but full-scale "trawling". It is well-established in relation to discovery that a party who can demonstrate nothing to support an allegation will not be granted access to the documents of the opposing party in the hope of discovering some such support. See, for example, WA Pines Pty Ltd v Bannerman. This principle applies with equal force to those seeking relief under the ADJR Act : Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [29]-[32]. It is not open to a party merely to allege that a decision was made without any proper basis and then seek to use the compulsory process of the Court to attempt to find out if that allegation has any foundation. Before discovery can be ordered, there must be some evidence that can support an arguable case for review, proof of which is likely to be aided by requiring production of relevant documents.


case_text: That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.


case_title: Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257


case_title: TNT Australia Pty Ltd v Fels (1992) ATPR 41-190


case_title: Australian Securities Commission v Somerville (1994) 51 FCR 38


case_title: Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247


case_outcome: considered

case_title: Minister for Immigration and Multicultural Affairs v Wong [2002] FCAFC 327

case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 , a Full Court of the Federal Court, while not determining whether the Court had power generally to order interrogatories to be answered in judicial review proceedings, said that it saw no reason "why there should be a differentiation in Australia between the power to order discovery and the power to order that interrogatories be answered". 48 It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].


case_text: The respondents accept that discrimination without apparent justification has, in some circumstances, been held to constitute Wednesbury unreasonableness: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation [1990] FCA 139 ; (1990) 96 ALR 153. They say, however, that the Minister's exercise of power under s 77EA(1) is not susceptible to review purely because different Ministers have acted differently in the past in relation to similar imported goods. 24 The respondents also say that the Minister is under no obligation to consider whether to exercise his power under s 77EA in relation to all goods that are imported. The power is one that involves ordering Customs to detain goods if the Minister considers that it is in the public interest to do so. There is no requirement under the section that Customs inform the Minister of any particular situations in which he or she may potentially exercise the power, still less any requirement that the Minister initiate investigations into all such cases. Accordingly, so it is submitted, it cannot be inferred, even on the basis of apparently unequal treatment, that there has been unlawful discrimination.


case_text: The respondents observe that the power conferred under s 77EA is necessarily very broad. It is plainly intended that government policy can be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 42 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 529. A new Minister must be free to develop and change government policy, even if that means that weapons that were in the past generally available for importation and sale may now be detained. The respondents refer in that regard to Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 455, where Gaudron, Gummow and Hayne JJ referred with approval to Professor Wade's statement that the whole object of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy".


case_title: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507


case_title: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438


case_text: It is obvious that grounds in support of an application for review are in no sense pleadings. It follows that O 11 r 16 of the Rules, which enables the Court to order that the whole or any part of a pleading be struck out, has no direct application to this case. Nonetheless, the authorities that deal with that order can be invoked, by analogy, in relation to grounds specified in an application under the ADJR Act : Whim Creek Consolidated NL v Colgan [1989] FCA 261 ; (1989) 25 FCR 50.


case_text: The Court will always be slow to exercise its discretion to strike out a pleading: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The power will be used sparingly and only where there is a clearly untenable case. It is of course an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393. The onus of satisfying the Court that this criterion is met lies upon the party alleging that to be the case.


case_text: The Court will always be slow to exercise its discretion to strike out a pleading: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The power will be used sparingly and only where there is a clearly untenable case. It is of course an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393. The onus of satisfying the Court that this criterion is met lies upon the party alleging that to be the case. 35 Any proceeding commenced on or after 1 December 2005 is subject to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), as well as O 20 r 5 of the Rules. Section 31A provides that the Court may give summary judgment in favour of one party against another if, inter alia, it is satisfied that the other party "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". For the purposes of the section, a proceeding, or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. The section is concerned with the bringing and defending of proceedings, and not just with pleadings. It seems clear that the section is intended to relax the test imposed by General Steel as to the circumstances in which a proceeding may be struck out. 37 The respondents did not at any stage seek to invoke s 31A. For that reason, I propose to hold them to the higher, General Steel standard insofar as they seek to strike out the grounds of review that they have identified. I do so without expressing any final opinion as to whether s 31A would, in fact, have been available to them had they sought to rely upon it. 38 To the extent that the applicant's case against the respondents depends upon nothing more than its claim that the current Minister is approaching the question of "public interest" in a different manner to his predecessor, it is untenable. 39 The Minister's predecessor may have taken a more benign view of the importation of weapons of this type. If he did, that still cannot form the basis of a conclusion that the Minister's decision in this case was unreasonable. The requirement in s 77EA that the Minister base his decision upon "the public interest" confers upon him a broad and multi-faceted discretion. Reasonable minds are likely to differ as to what that term entails. If the Minister's decision is, ultimately, held to be unreasonable in the Wednesbury sense, it will be because it was wholly irrational and not because his predecessor did not share this Minister's views. 40 It follows that I would be minded to strike out the grounds of review, and the particulars in support thereof, that depend entirely upon reasoning of the type just discussed. I say that in the context of an interlocutory application brought for the sole purpose of obtaining leave to deliver interrogatories aimed at assembling evidence to support a factual finding that leads nowhere in a legal sense. As I will not be hearing this matter when it comes before the Court for final determination, it is sufficient for me to do no more than refuse the application for leave to deliver those interrogatories that relate to the period prior to 6 December 2007 without, at this stage, proceeding to strike out the grounds of review that I regard as untenable. 41 The position regarding the period after 6 December 2007 is more difficult. At a theoretical level, there might be a case in which it could be shown that the Minister has discriminated against the applicant, singling it out for adverse treatment and ignoring the acts of its competitors. Such conduct on the part of the Minister might be amenable to judicial review, if not under the ADJR Act , then certainly pursuant to s 39B.


case_title: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378


case_text: It is a nice question whether s 31A can be invoked in relation to grounds of review that seem untenable. The section permits judgment to be given in favour of one party against another only, and does not address grounds of review as such: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401. Order 54 r 7(1)(a) of the Rules, which governs applications brought under the ADJR Act , provides that a party may apply to the Court for "judgment" in an application for an order for review under O 20 r 2 or s 31A of the Federal Court of Australia Act . Order 54 r 7(1)(b) enables a party to apply to have an application for an order of review stayed or dismissed under O 20 r 4 or r 5. It follows that the Court can dismiss a "claim for relief" in a particular proceeding if that claim constitutes an abuse of process.


case_title: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1271

case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 , a Full Court of the Federal Court, while not determining whether the Court had power generally to order interrogatories to be answered in judicial review proceedings, said that it saw no reason "why there should be a differentiation in Australia between the power to order discovery and the power to order that interrogatories be answered". 46 To grant leave to interrogate in the circumstances presented here would be to encourage not merely "fishing" but full-scale "trawling". It is well-established in relation to discovery that a party who can demonstrate nothing to support an allegation will not be granted access to the documents of the opposing party in the hope of discovering some such support. See, for example, WA Pines Pty Ltd v Bannerman. This principle applies with equal force to those seeking relief under the ADJR Act : Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [29]-[32]. It is not open to a party merely to allege that a decision was made without any proper basis and then seek to use the compulsory process of the Court to attempt to find out if that allegation has any foundation. Before discovery can be ordered, there must be some evidence that can support an arguable case for review, proof of which is likely to be aided by requiring production of relevant documents. 48 It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].


case_text: It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].


case_title: McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700


case_text: Similarly, grounds of review that involve allegations of fraud or dishonesty, or even seriously improper behaviour, may justify the making of such orders. For a time, there developed a body of case law in this country involving challenges to the validity of search warrants, essentially on the basis that they had been improperly obtained. The principle seems to have been that a warrant obtained by a half-truth should be set aside. See generally the authorities collected and discussed by Aronson, Dyer and Groves " Judicial Review of Administrative Action " (3rd ed, 2004, at 302, fn 339). In some of these cases, far-ranging discovery was ordered and informative documents obtained. Interestingly, however, attempts to deliver interrogatories were generally unsuccessful: see, for example, Grofam Pty Ltd v Macauley (1993) 43 FCR 404 , where leave to serve interrogatories on a magistrate who had issued a search warrant was refused. 50 The only grounds of review that could even conceivably support the grant of leave to deliver interrogatories in this case are those alleging discrimination on the part of this Minister when he decided to have the applicant's weapons detained, based upon his later treatment of its competitors. These are ground 7(d) in support of the ADJR Act application and ground 8(e) in support of the s 39B(1A)(c) application. However, as discussed above, those grounds are largely speculative. They do not warrant the grant of leave to interrogate. 51 It follows that I need not determine whether, as the respondents contend, it would be unduly burdensome for them to be required to answer the proposed interrogatories. The applicant has failed to establish any adequate basis for their delivery. The grounds of review to which they are directed are untenable. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 6 June 2008 Counsel for the Applicant: Mr T. Hurley Solicitors for the Applicant: Balmer & Associates Counsel for the Respondents: Mr P.R.D. Gray with Ms Z.E. Maud Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28 April 2008 Date of Judgment: 6 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/849.html


case_text: There are a number of authorities which have dealt with the question of whether a finding of procedural fairness, or failure to afford procedural fairness, is open in circumstances where there is no demonstrated engagement by the Tribunal in conduct relevant to that question. The Full Court of the Federal Court of Australia has considered this matter recently in Minister of Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. That was a case in which a Lebanese family had the misfortune to be introduced, by a relative of the family, to a man who was thought to be a solicitor with a great deal of experience in migration matters. The family engaged him to represent them in their application for review by the Tribunal. However, unknown to the family, the particular agent had been struck off as a solicitor in December 2001 and deregistered as a migration agent in March 2002. The family paid the agent a considerable sum of money, namely, $8,400, and accordingly, was influenced by quite calculated fraud. The family had been dissuaded from appearing at a hearing before the Tribunal by the fraud of the agent. 40 His Honour, Allsop J, at paragraph 139 of the reasons, reviews the principles governing the circumstances in which procedural fairness might be found to have failed by reason of the intervention of a third party. At paragraph 139, his Honour said this: 'Whilst the consequences of fraud practised upon the decision-making process of an administrative tribunal might, in some cases, lead to the conclusion that a decision had been made without authority or exhibiting jurisdictional error, that conclusion will generally be reached by reference to notions of procedural fairness. Whilst the taxonomy or categorisation of legal principle should not impede its recognition or operation, some characterisation is called for here by the terms of s 422B. ' 41 I pause to add that in this particular case, s 422B was not part of the legislative scheme but nevertheless, the statement of principle in relation to the circumstances in which procedural fairness might be found to have failed and thus jurisdictional error arises, remains persuasive. His Honour, continued at [139]: 'It is difficult to see here how, absent regard to the rules of procedural fairness or "the requirements of the natural justice hearing rule", one can identify a principle of law that permits the conclusion that there has been jurisdictional error. There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness, or that those circumstances denied the Tribunal the authority to decide the review given the terms of ss 425 , 426A and 422B . I do not think that it is an accurate conclusion to say that the legislative scheme was corrupted by fraud or that a hearing was denied by fraud.' See also Minister of Immigration and Multicultural Affairs v SZFDE per Graham J [212].


case_text: That expression of principle is entirely consistent with the views expressed by his Honour, Besanko J at paragraph 34 in the reasons in SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 ; SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 , per Bennett J, [25] and [26]; SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477 per Cowdroy J, at [26] and [27]; and NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] per Tamberlin, Sackville and Hely JJ.


case_title: SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779


case_title: SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477


case_title: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184


case_outcome: distinguished

case_text: 26 May 2006 the Court delivered judgment in respect of a security for costs application made by the second respondent ('GCB'): see Wyong-Gosford Progressive Community Radio Inc v Australian Communications and Media Authority [2006] FCA 625 ('the May decision'). Pursuant to that judgment the Court ordered that the applicant ('PCR') pay security for the GCB's costs in the amount of $10,000. The first respondent ('ACMA') made no application for security for costs at this time. At the time of the May decision, the application before this Court was an application for leave to extend the time in which to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). However, on 1 August 2006 the Court, at the request of PCR, granted leave to file an amended application in these proceedings. The amended application included not only an application under the ADJR Act, but also an application under s 39B of the Judiciary Act 1903 (Cth) (' Judiciary Act ') alleging the same errors of law as are contained in the draft ADJR Act application. There is no time limit for the filing of an appeal under s 39B of the Judiciary Act , and so no leave was required to bring those proceedings. Accordingly, even if leave were not granted to file the ADJR Act application out of time, PCR would have been entitled to proceed to hearing on the Judiciary Act application. For this reason, the Court decided to vacate the dates set down for hearing the leave application, and to reserve the question of leave arising under the ADJR Act to be determined simultaneously with the hearing of the amended application. As a result of the orders of 1 August 2006, the future course of the proceedings has been substantially altered, and both respondents now face a final hearing on the amended application. Immediately after the orders of 1 August 2006 were made, ACMA indicated that it would seek security for costs. Additionally, GCB indicated it wished to seek further security, pursuant to leave granted in the orders arising from the May decision. At that time PCR indicated it could unconditionally offer an additional $10,000 security to the second respondent, which has now also been paid. The first respondent now seeks security in the sum of $36,148. The second respondent seeks further security in the sum of approximately $60,000. I consider that the cost estimates provided by the first and second respondents are realistic. FACTS The relevant background is contained in the May decision. The applications in the present case are made under s 56 of the Federal Court of Australia Act 1976 (Cth). The power to order security for costs under s 1335 of the Corporations Act 2001 (Cth) has no application in the present case because PCR is an incorporated association and not a company. The considerations to be taken into account on a security for costs application are set out in the May decision at [11], and I will proceed to consider the relevant considerations below. THE RISK THAT A COSTS ORDER COULD NOT BE SATISFIED It has now been conceded by PCR that it is impecunious and I accept that is extremely unlikely that PCR would be able to meet a costs order made against it in these proceedings. The affidavit of Sylvia Higgins, President and Ethnic Liaison Officer of PCR, establishes that her attempts to solicit donations for the purpose of security for costs have been completely unsuccessful. Donors to PCR have indicated they have no desire to contribute funds which might assist ACMA or GCB. The money which has already been paid by way of security has been supplied wholly from the personal assets of Ms Higgins, and her evidence was that she could not afford to provide any further assistance to PCR. THE MERITS OF APPLICATION Since the May decision, further information has been provided which casts light upon the merits of the application. The affidavit of Ms Higgins attaches two advices received from counsel in relation to the prospects of success of the application. The first of these advices sets out at length the law relating to the administrative appeals, and states that the criticisms made of ACMA's decision ' do not point to any error capable of leading to relief being granted upon judicial review '. The advice concludes: 'As presently instructed, I do not think that there is any basis upon which a successful judicial review application could be mounted. ' PCR subsequently sought advice from another counsel. The advice from the second counsel is brief. Its final two paragraphs state: 'In our view, the grounds upon which to have the decision set aside are not particularly strong. In relation to a number of the errors, a court may ultimately hold that these reasonably fall within the proper exercise of the discretion vested in the ABA [ACMA] and do not constitute errors of law. Notwithstanding these concerns, there are nevertheless reasonable prospects of showing that the ABA fell into reviewable error and having the decision set aside.' It appears to me that the conclusion in the final paragraph is not entirely consistent with the advice in the preceding paragraph. Ms Higgins gave evidence that she considered the second advice to have been better, as it considered all of the particular facts of the case. Irrespective, it appears that on the basis of the advice given to PCR, the prospects of success of this application are, at best, weak. Nonetheless, these proceedings were commenced on the basis of the second advice. Counsel for PCR made reference to a third advice, which apparently preceded both of the advices set out above, and suggested it was optimistic. However, the Court has no evidence of such advice. Counsel for PCR indicated that the strongest point to be raised in PCR's claim was the fact that of 2,080 letters which had been submitted to ACMA in support of GCB's application for the broadcasting licence, only 300 to 400 were relevant to ACMA's decision and therefore only those letters should have been relied upon by ACMA. The greater portion of the letters had been prepared before the incorporation of GCB, and, PCR submits, should have been given no weight by ACMA. Instead, PCR submits, ACMA relied upon all of the letters and on a plain reading of ACMA's decision they were a critical factor in its decision to award the licence to GCB. The letters which pre-dated GCB's incorporation were written in support of an associated entity, namely a Christian broadcasting station operating in Newcastle. It was the Newcastle entity which was the original applicant for the licence under dispute until an application by GCB was substituted. PCR submits that ACMA found that the programmes offered by the Newcastle entity and GCB were different. However, GCB relies upon the statement by Wilcox J at [47] in the previous judicial review application relating to this licence: see Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Anor [2003] FCA 33 ; (2003) 125 FCR 560. In that paragraph, Wilcox J states: 'The letter of the ABA [ACMA] dated 23 December 2002 indicates the ABA did take into account material originally filed by Newcastle. The letter specifically refers to "letters of support" and these were all originally provided by Newcastle. However, I do not think this made the material irrelevant. The letters of support mainly addressed the matter of program content; they were supportive of "Christian programs". That was a theme common to the applications of both Newcastle and Gosford. It was open to Gosford to adopt this material, as support for its own application. It was for the ABA to determine the extent (if any) to which it should be discounted because of its provenance.' Since this is an interlocutory application, I have not yet had an opportunity to fully consider the evidence. However, prima facie, the above passage from Wilcox J answers the claim now being raised by PCR. PCR has also raised an allegation of fraud in its amended application, stating that the date upon many of the letters of support were deliberately removed when the letters were submitted to ACMA in order to conceal the fact that the letters were written at a time when GCB had not yet been incorporated. GCB, however, says that although the date was missing from some letters, there were over 800 other letters which pre-dated GCB's incorporation from which the date was not removed. I agree that this fact appears to be inconsistent with the allegations of fraud made by PCR. Prima facie, if this is the sole foundation upon which PCR's fraud claim rests, it would seem to be made on a tenuous basis, particularly since it is not clear that it was an error for ACMA to take the older letters into consideration in any event. Given the above circumstances, the Court considers that, as presently formulated, PCR's claim has little chance of success. This can only be a preliminary opinion, given that I am yet to see and consider the entirety of the evidence, but nonetheless it is relevant to the consideration of the security for costs application. WHETHER THE LITIGATION WILL BE STIFLED BY AN ORDER PCR has submitted, and I accept, that there is a risk that the litigation may be stifled if an order for security for costs is made, and certainly if an order is made in any significant amount. This is one factor which must weigh into the consideration whether the Court should order security. WHETHER THERE ARE THIRD PARTIES STANDING BEHIND PCR PCR is a not-for-profit association which is staffed by volunteers. There are no shareholders or creditors who have a pecuniary interest in the outcome of this litigation. Rather, this litigation is being brought in the interests of a sector of the community whose needs were met by the radio broadcasts of PCR. In Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (No 1) (1996) 69 FCR 1, Branson J stated at 21: 'The applicant is an incorporated association of persons concerned with the environment. In one sense, every association is a front for its members: they stand behind it and may be assumed themselves to support the objectives of the association and, generally speaking, the association's actions in intended advancement of those objectives. There is, however, in my view, a very real difference between the relationship of a member of a non-profit association formed to advance a public interest to the association of which he or she is a member and the relationship of a shareholder to the company in which he or she holds shares. The benefit which a shareholder might expect to obtain from litigation conducted by a company will ordinarily be, whether directly or indirectly, financial. Members of a non-profit association will not ordinarily benefit financially from litigation initiated by the association. The benefit which they might obtain from such litigation is likely to be constituted by intellectual or emotional satisfaction. ' I accept that the volunteer managers of PCR in these proceedings cannot be equated with shareholders ' standing behind ' a company. In this sense I consider the case is distinguishable from Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4. However, this does not absolve the volunteer managers from their duty to act responsibly in the conduct of litigation: see the further discussion at [28]-[31 ] below. DELAY PCR submits that the application by ACMA has been made too late and that accordingly, it should not be entitled to an order for security. In Crypta Fuels Pty Ltd and Anor v Svelte Corporation Pty Ltd and Ors (1995) 19 ACSR 68 at 71, Lehane J, having been referred to numerous authorities, noted that: 'Without referring in any greater detail to those authorities, my conclusion from a consideration of them is that there is first and foremost a proposition accepted in every one of the cases which is that if an application for security for costs is to be made it must be made promptly.' The application for security by ACMA was first raised when leave was granted to rely upon the amended application on 1 August 2006. ACMA has suggested that, because of the change in the future course of the proceedings engendered by the filing of the amended application, it was entitled to change its position on security for costs. It says that when the proceedings were commenced ACMA faced only a leave application, whereas now it faces a full hearing. However, there was always a possibility that leave would be granted to the ADJR Act application, in which case ACMA would also have faced a full hearing. I do not consider that, if the leave application had been heard and allowed, ACMA would then have been entitled to ask for security for costs, at least not unless that application had been specifically foreshadowed at an early stage of proceedings. By the time the leave application had been finalised, PCR would have spent a substantial sum in legal costs. A security for costs application at that point may have stifled the litigation and made all of the costs incurred up until that time redundant. ACMA further submits that it is required to behave as a model litigant, which requires, among other things, that it not take advantage of a claimant who lacks the resources to litigate a legitimate claim. To the extent that ACMA relies upon the model litigant principles, I do not consider that these principles would have precluded an application for security being brought at an earlier stage of the proceedings. Those principles, in my opinion, aim to prevent ACMA bringing a security for costs application which is oppressive. However an application brought on legitimate grounds earlier in these proceedings would not have been oppressive. At the very least, and particularly in circumstances where GCB brought an application for security, it was incumbent upon ACMA to indicate at an early stage that it would apply for security if leave were granted. ACMA has relied upon Gartner v Ernst & Young (No 3) [2003] FCA 1437 at [34] , in which case an application made 10 months after the institution of proceedings was held not to be too late. At [34] Mansfield J stated that: 'The proceedings were instituted in August 2002. The proceedings were complex. There have been a number of versions of the statement of claim. The bank is, in terms of the substantive allegations made in the proceedings, but a small player. It foreshadowed bringing an application for security for costs at an early point. It made such an application in May 2003. At that time the proceedings had not much progressed. They were delayed by the accountants' challenge to the entitlement of the corporate applicants to have instituted the proceedings in the circumstances, and then the appeal of the accountants against that decision. In practical terms, the application has been unable to much progress until resolution of those issues. I do not therefore consider that the bank has engaged in delay in instituting the present application or in maintaining it. There is also nothing to persuade me that the elapse of time before this application has in any way caused unfairness to the applicants. There is no evidence to suggest that.' I consider that the present case can be distinguished from Gartner in two respects. Firstly, the application for security for costs was not foreshadowed at any early time, despite the fact that GCB was bringing an application for security. Secondly, PCR has clearly already incurred considerable expense in the preparation of these proceedings. An order for security, to the extent that it may stifle the proceedings, would result in the waste of this expenditure. If the application had been brought, or at least foreshadowed, at an earlier stage, PCR may have reconsidered its position and this expenditure may not have been incurred. Accordingly, I consider PCR would be prejudiced by an order at this stage of proceedings. OTHER MATTERS RELEVANT TO THE DISCRETION There are several further matters which I consider to be relevant to the discretion to be exercised in this case. There is a duty upon an impecunious applicant to act responsibly in pursuing litigation. As Wilcox J said in Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 1004 at [125] : 'Those who litigate in the public interest need to be dedicated to their cause and enthusiastic in its pursuit. But dedication and enthusiasm are not enough; public interest claims also require strict professionalism, with rigorous attention to any legal problems inherent in the proposed claim. ' PCR is funded by donors. The evidence of Ms Higgins is that donors are unwilling to contribute funds which might be recovered in costs by the respondents. It is clear that the volunteer managers of PCR are proceeding with the knowledge that PCR will not have funds to pay any adverse order for costs made against them. Further, PCR received two sets of legal advice which did not rate its chances of success highly. One advice explicitly stated there was no reasonable prospect of success on this application. As a result of these two factors, the respondents are exposed to a significant financial risk. For PCR to proceed in these circumstances is to demonstrate a lack of consideration for the detriment which may be suffered by the respondents. The fact that an organisation is a not-for-profit organisation does not give it free rein to bring proceedings, no matter how tenuous the basis on which they are brought, without any regard to the detriment which those proceedings may cause to the respondents. There is a duty upon an applicant to be responsible in their conduct of litigation and to ensure that proceedings are not brought without regard to the prospects of success. This duty must be strictly observed by an impecunious applicant who may bring proceedings in which irrecoverable costs may be incurred. If PCR wishes to bring the proceedings despite advice that it does not have particularly strong grounds, it is entitled to do so. However, it cannot expect that the respondents bear the risk of its choice, by incurring costs which PCR knows cannot be recovered. As noted by Branson J in The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 at [33] : '... the amount [of security] should be sufficient to ensure that the directors of the applicant appreciate that the risk that the applicant might be ordered to pay the respondents' costs has more than notional significance. ' There is a second factor which I consider to be significant in the circumstances of this case. This is not a matter in which the applicant is the only impecunious party. GCB is also a not-for-profit organisation and there is evidence to suggest that GCB may be unable to afford to defend these proceedings. GCB's net operating profit for the last financial year was $6,968.74 and its balance sheet shows that it has a total equity of $27,399.10. To date it has expended in excess of $42,000 in this litigation, and its estimates suggest it will spend another $50,000. PCR says this is an unfortunate consequence of litigation which is not properly a consideration in ordering security for costs. I disagree. I consider that it is a relevant discretionary consideration that proceedings, even if successfully defended, may bankrupt a respondent, especially in circumstances where there are grounds for doubting the merits of the application. GCB has submitted that it would be of comfort in determining their future course to know that costs could be recovered if their defence was successful. I accept that this is a valid consideration. CONCLUSION Weighing all of the above factors, I consider that further security should be provided to GCB, but that no order should be made in favour of ACMA. Bearing in mind my preliminary conclusions on the merits of this application, the fact that GCB is itself a not-for-profit organisation and the quantum of costs which are likely to be incurred, I consider that GCB should be provided with further security in the sum of $30,000. In determining this amount, I am aware that there is a possibility that an order for security will force the applicant to withdraw from this litigation. However this is only one factor to be taken into consideration. There are many other factors weighing in favour of an order, as outlined above. In the circumstances I consider that the interests of justice require that GCB be given some further assurance of its costs if the application is unsuccessful, although I have awarded a lesser amount than that sought by GCB in order to reduce the risk that the litigation will be stifled. Because of the delay, because ACMA is not a not-for-profit organisation, and because an additional award of security would further increase the likelihood that the litigation may be stifled, I decline to grant security for costs to ACMA. I propose to stage the payment of security, in order to minimise the burden upon PCR, so that security is paid in three equal monthly instalments before the commencement of the hearing. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 11 August 2006 Counsel for the Applicant: Mr A Leopold with Mr R McPherson Solicitor for the Applicant: Tzovaras Legal Counsel for the First Respondent: Ms S Phillips Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr I Davidson Solicitor for the Second Respondent: Emil Ford & Co Date of Hearing: 9 August 2006 Date of Judgment: 11 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1043.html


case_outcome: referred to

case_title: Crypta Fuels Pty Ltd and Anor v Svelte Corporation Pty Ltd and Ors (1995) 19 ACSR 68


case_title: Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (No 1) (1996) 69 FCR 1


case_title: Gartner v Ernst & Young (No 3) [2003] FCA 1437


case_title: The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400


case_title: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 1004


case_title: Wyong-Gosford Progressive Community Radio Inc v Australian Communications and Media Authority [2006] FCA 625


case_title: Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Anor [2003] FCA 33 ; (2003) 125 FCR 560


case_text: While I have concluded that the State's contention should be upheld, I recognise that the question is one upon which judicial opinion in this Court is divided cf Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [191] - [194] and Moses v State of Western Australia [2007] FCAFC 78 at [18] and that I am disagreeing with views expressed by judges having considerable experience in native title matters. 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486." 45 Both Ward and Moses , then, would seem to acknowledge that in s 67 proceedings on overlapping claims, a native title claimant group which has its own s 61 application can seek as a respondent in the overlap proceedings a determination of native title on its own claim (at least to the extent of the overlap if another applicant's proceeding is the principal proceeding): Ward (FC) at [193]; but in so doing it must satisfy all the requirements of the NT Act to establish that claim: Moses at [18].


case_text: On 27 January 2005 I ordered that this claim be struck out. There was, in my view, no arguable basis upon which Mr McKenzie could be said to have satisfied the requirements of s 61(4) and s 62(1), (iv) and (v) relating to his authorisation to bring the claim: McKenzie v South Australia (2005) 214 ALR 214. Prior to this Mr McKenzie had, by virtue of s 84(3) of the NT Act become a respondent party to the Kokatha Native Title Claim. 18 It is difficult to overstate the centrality of the requirement of "authorisation" in the scheme laid down by the Act for the making of a native title application. Section 251B prescribes how all the persons in a native title claim group can authorise a person or persons to make such an application. Both s 61 and s 62 prescribe mandatory requirements in the application itself relating the fact of, and the basis of, the authorisation of the person or persons making the claimant application. Section 84C in turn permits any party to a (inter alia) determination application to apply at any time to this Court to strike out an application which does not comply with the requirements of s 61, s 61A (to which I earlier referred) or s 62. There is extensive case law on s 84C. For present purposes I need only refer to McKenzie v South Australia , at [25]-[26].


case_outcome: approved

case_text: In Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 Mansfield J held that the striking out of the first Kuyani claim did not of itself result in Mr McKenzie ceasing to be a party to the Kokatha claim. His Honour went on to note that the strike out did not necessarily mean that Mr McKenzie might not nonetheless be a person whose interests may be affected by the Kokatha claim and be eligible to be a party under s 84(3) of the NT Act for that reason. 13 Before turning to the statutory setting I should note first that the scheme of the Act contemplates that a person claiming native title in an area subject to a s 61 application should be given notice of that application: s 66(3) and (10); and is entitled to be a party to the proceedings in relation to that application: s 84(3)(a)(ii) and secondly that that person is entitled as a party (subject to the Court's discretion: see NTA, s 84(8)) to oppose the making of a determination of native title for the reasons advanced in subparas 3.4 and 3.5. As Mansfield J observed in Kokatha Native Title Claim v South Australia at [24]: "Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in [this] claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests." 14 Given the submissions that have been made, it is necessary to refer in some detail to the text and structure of the NT Act. The necessary starting point is s 10 of the Act which provides that native title is "recognised and protected in accordance with the Act". I would merely note in passing that the State relies upon s 10's limitation in support of the contention that Mr McKenzie is seeking to achieve a determination in his favour while circumventing positive requirements of the Act which he has not in the past been able to satisfy. 15 Section 13(1)(a) permits an application to be made in the Federal Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no "approved determination of native title". Section 61A(1) in turn positively prohibits the making of such an application for an area where there is such an approved determination. For present purposes an approved determination is a "determination of native title made on an application under paragraph (1)(a)" of s 13: see s 13(3) (emphasis added). Approved, I should add, does not mean a determination that is favourable to the claimant applicant. So much is clear from the language of s 13 itself and is made the moreso by the terms of s 225 which defines "determination of native title". It provides (insofar as presently relevant) that: "A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title area; and (b) the nature and extent of the native title rights and interests in relation to the determination area." (Emphasis in the original.) 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 41 While several first instance judges have asserted a contrary view to that in Ward though without reference to it: see for example, Emmett J in Munn v State of Queensland at [8]; it was the decision of Mansfield J in Kokatha Native Title Claim v South Australia that first gave a limiting interpretation to what was said in Ward . In the Kokatha case, his Honour was dealing with applications made under s 84(5) of the NT Act by three individuals to be joined as respondent parties to the Kokatha claim, these persons asserting native title rights and interests in part of the Kokatha claim area. Consequent upon my strike out of the Kuyani determination application, they were not independently s 61 applicants having an overlapping native title determination. In dealing with the applications of these "party-applicants" Mansfield J observed (at [22]-[23]) that: "In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests. However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour. I share the view of Emmett J in Munn at [8] to that effect. It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315. In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998 (Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear. They provide the only vehicle for the positive determination of native title rights and interests. They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants. In Yarmirr v Northern Territory (unreported, Federal Court, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions. See also Quall v Risk [2001] FCA 378 at [67] . I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area: see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16." 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486." 46 The present is not a s 67 overlapping claim case and so raises directly the issue whether the Court has jurisdiction to make a determination of native title in favour of a person or group of persons who has not a s 61 application on foot in the proceedings. In my view, the Act, properly construed, requires a negative answer to this question. In this, I agree with the conclusion of Mansfield J in the Kokatha case. 47 Put shortly, a s 61 native title determination application is required to enliven the Court's jurisdiction to make a determination of native title in relation to the determination area. That determination, though, is to be made, as s 13(3) indicates, on the application the subject of the proceeding. Despite the contrary submissions of the Commonwealth, the language of s 225 does not detach the determination of native title from the application made for the determination. It is the determination made on the application that becomes the "approved determination of native title" which has such far reaching significance in the scheme of the Act.


case_text: On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as "an interest" for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [34] ; Munn v State of Queensland [2002] FCA 486 at [8] ; Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27].


case_text: On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as "an interest" for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [34] ; Munn v State of Queensland [2002] FCA 486 at [8] ; Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27]. 33 It is clear from the text and structure of the Act that a s 225 determination, once made, should be a final resolution, "once and for all", of the extent of native title in relation to a particular piece of land: see Munn v State of Queensland , at [8]; subject only to the possibility of it being varied or revoked on the limited grounds specified in s 13(5). Because such a determination is declaratory of the rights and interests of all parties holding rights or interests in the area, it is commonly and properly described as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland (1994) 49 FCR 1; Western Australia v Ward (FC), at 368-369; Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [127] ; on judgments in rem see also 2 Smith's Leading Cases 776 (12 th ed, 1915). Nonetheless, it should in my view be remembered that it is the terms of the Act itself (i) which now emphatically give the s 225 determination its finalising effect; see in particular ss 13(1) and (3), 61A(1) and 68; and (ii) which give persons likely to be affected by such a determination (including native title claimants) the opportunity to protect their interests by becoming a party to the proceedings: see s 84(3) and see also s 66; cf The Wik Peoples at 5-6. My reasons for emphasising this will become apparent below. 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 41 While several first instance judges have asserted a contrary view to that in Ward though without reference to it: see for example, Emmett J in Munn v State of Queensland at [8]; it was the decision of Mansfield J in Kokatha Native Title Claim v South Australia that first gave a limiting interpretation to what was said in Ward . In the Kokatha case, his Honour was dealing with applications made under s 84(5) of the NT Act by three individuals to be joined as respondent parties to the Kokatha claim, these persons asserting native title rights and interests in part of the Kokatha claim area. Consequent upon my strike out of the Kuyani determination application, they were not independently s 61 applicants having an overlapping native title determination. In dealing with the applications of these "party-applicants" Mansfield J observed (at [22]-[23]) that: "In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests. However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour. I share the view of Emmett J in Munn at [8] to that effect. It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315. In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998 (Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear. They provide the only vehicle for the positive determination of native title rights and interests. They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants. In Yarmirr v Northern Territory (unreported, Federal Court, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions. See also Quall v Risk [2001] FCA 378 at [67] . I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area: see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16." 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486."


case_title: Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512