case_text: Two of the relevant events which were found by the Tribunal to have contributed in a material degree to Mr Wiegand's disease were (i) a failure to be promoted in 1989 and (ii) a failure to obtain compassionate leave in 1997. In arriving at this conclusion the Tribunal appears to have applied unexceptionably the decision of the Full Court in Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316 at 323 in determining whether the above two events contributed in "a material degree" to his disease. 8 The Tribunal dealt with such evidence as related to the former of these at [69]-[74] of its reasons. These paragraphs (other than par [74]) refer to evidence which suggested the promotion matter "aggrieved", or had a "significant impact" on, Mr Wiegand, or else reflected conduct of the ATO that concerned him. More significant is the following passage in the oral evidence of Dr Coyte on which the Tribunal relied in par [74]. It is as follows: "THE D.PRESIDENT: Doctor, I wonder if you would look at the report of the decision of the Federal Court in Mr Wiegand's appeal to the Federal Court [in 2002]. Do you have that there? It was part of exhibit 24 tendered this morning, I think. I wonder if you would go to paragraph 10 of that report and you will see a series of dot points within paragraph 10?---Yes. I wonder if you would just take a moment to read through those particular dot points?---How far would you like me to go with this? I think continue to the end of paragraph 10?---Okay. I didn't realise there were so many pages but if I just ask you a general question perhaps to the end of paragraph 10 and then paragraph 11 which is very brief. That. Thank you. Now, you understand from having read that, that that is a summary prepared by the Federal Court Judge of the concerns which Mr Wiegand had about events that had happened in the course of his employment?---Yes. And which he thought contributed to his ill health. Paragraph 10 contains what are described as the major events, but not necessarily all of the events. The question is, in the course of his consultations with you has he mentioned those events to you?---I could say, yes, he has. Not in as much detail as some of these. No. Certainly, apart from matters of detail, there is nothing new in there that you haven't heard about before?---No, there is nothing new. Did all of those matters appear to be of concern to Mr Wiegand?---When he related them to me? Yes?---Yes. Do you consider that all of those matters contributed to the onset of his depression, or alternatively, to the aggravation of his depression?---Yes, I do." (TR22.3.05 at pp 39-40) 9 I should interpolate that the 1989 failure to be promoted and its aftermath was one of the events referred to in par 10. The Tribunal (in par [75]) went on to conclude: "Whilst (as I have already found) there was a combination of many events that caused Mr Wiegand's depressive condition, it appears from the evidence before me that this first failure to be promoted marked the beginning of Mr Wiegand's psychological concerns. I find from the above evidence that this event was one of the causative factors for his developing major depression and that it was not an insignificant factor. This factor was an excluded event within the proviso to the definition of 'injury' ." 20 Mr Wiegand's complaint in relation to the promotion incident centred in large measure on the fact that it was only towards the very end of a protracted hearing in the Tribunal that Hart's case became an issue (it having just been decided by the Full Court). Up until then the case had been run by him on grounds suggested by the earlier decision of von Doussa J which related to the reality of his "perceptions". For this reason little attention was given to the 1989 promotion in the course of the proceedings. He contends that his psychiatrist, Dr Coyte, was reluctant to assign diagnostic significance to individual past events such as the 1989 promotion event. Equally Mr Wiegand sought to explain away the significance of the transcript referred to above by saying that, while Dr Coyte agreed that the factors referred to by von Doussa J, including the failure to be promoted, contributed to the onset of his depression, Dr Coyte did not agree that they contributed in a material degree. Given the decision of the Full Court in Treloar's case on the significance of the word "material" in this context, I do not consider there is any substance in this supposed difference. As the Full Court observed in Treloar at 323, once a causal connection is established between an employment event and the ailment suffered "it matters not that the contribution be large or small". 21 Given Dr Coyte's evidence, there was some evidentiary basis for the Tribunal making the finding that it did. Whether that finding was in fact erroneous or not is not a matter of present relevance. I have referred above to the threshold posed by a no-evidence case. Mr Wiegand in the circumstances is unable to cross it. This conclusion of itself would be sufficient to dismiss the application. 22 I should add for the sake of completeness that I have reached a like view on the compassionate leave question. The evidence of its contributing effect might be considered slight but there nonetheless was evidence of such a contribution before the Tribunal.


case_outcome: cited

case_title: Schmid v Comcare [2003] FCA 1057

case_text: I should state at the outset, as has been acknowledged by others: see Schmid v Comcare [2003] FCA 1057 at par [53] ; there is a high threshold for treating a finding of fact as giving rise to an error of law. I would note that in Roads Corporation v Dacakis (1995) 2 VR 508 at 520 it was said: "... a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will only be open to challenge as being erroneous in law if it was not reasonably open on the facts": emphasis in original. I emphasise this matter because an appeal to this Court under s 44 can only be made on a question of law.


case_outcome: referred to

case_title: Roads Corporation v Dacakis (1995) 2 VR 508


case_text: I pause at this point to note that the condition in s 24A(a) is not expressed in terms of the agency or Minister being satisfied that reasonable steps have been taken, and that raises a question as to whether the condition involves a jurisdictional fact. That question was addressed by Finn J in Chu v Telstra Corporation Ltd [2005] FCA 1730 ; (2005) 147 FCR 505 and, for the reasons his Honour gives (with which I respectfully agree), the judgment as to the requirement in s 24A(a) is for the agency or Minister in question and, upon review, for the Tribunal, and not ultimately for the Court. 9 Under s 55 of the FIO Act, the applicant sought a review of the decision by the Tribunal. As I have said, the Tribunal affirmed the decision under review. 10 On 17 August 2005, the applicant limited his application to the Tribunal to his request for documents said to have been provided by him to the respondent in 1991. His description of the documents is as follows: '... documents [that] were given to me by the Queensland Police after I had complained to the Fitzgerald Inquiry. Australian Federal Police wanted to know about my involvement with Operation Maitita an undercover role that I had played to trap some members of the Ananda Marga sect implicated allegedly in the 1978 Hilton Hotel bombings in Sydney. ("1991 Documents")'


case_text: As to the second submission, this could be rejected on a number of grounds. It is sufficient for me to say that the State Act does not apply to the applicant's request for access according to its terms and is not 'picked up' by s 79 of the Judiciary Act 1903 (Cth), because the Commonwealth has 'otherwise provided' in the FIO Act: see McLeod v Australian Securities and Investment Commission [2002] HCA 37 ; (2002) 211 CLR 287 at 302 [44] . 20 The application must be dismissed and the applicant must pay the respondent's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 13 July 2006 The Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms E Reed Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 June 2006 Date of Judgment: 13 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/890.html


case_text: The applicant's challenge is made by way of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). It seems that the applicant had a right of appeal on a question of law from the decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), but he has not exercised that right. Although the respondent accepts that the decision falls within the terms of the ADJR Act (see, eg, Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 462-464 per von Doussa J), it submits that because the applicant had a right of appeal on a question of law under the AAT Act, I have a discretion not to entertain the application under the ADJR Act. However, the respondent has asked me not to exercise the discretion to decline to entertain the application, because it submits that it is in the interests of justice that the application be determined as expeditiously as possible. I am prepared to proceed in this way because, irrespective of the form of the challenge, the applicant must show a breach of the rules of natural justice or an error of law and I am satisfied that he is unable to do this. 3 The applicant represented himself both in this Court and in the Tribunal. He believes that the respondent has certain documents and, as will become clear, his attempts to obtain those documents have a long history. 4 On 18 February 2005, the applicant made a request of the respondent under s 15 of the FIO Act for certain documents. The documents sought were as follows: 'Seeking freedom of information between 1978 to 2005 about myself ... I seek all materials and including a Queensland Police file (including the Special Branch files) that I provided you in 1990.'


case_text: Section 33(1)(b) of the AAT Act provides that a proceeding before the Tribunal shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of that Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. The Tribunal has a duty to act judicially. Ordinarily, it is for the parties to define the issues in the proceedings and to decide how they wish to conduct their respective cases. As Deane J (with whom Fisher J agreed) noted in Sullivan v Department of Transport (1978) 20 ALR 323 (at 343), undue interference by the Tribunal with how the parties conduct their cases may prove counter-productive. At the same time, there may be cases where the Tribunal's duty to act judicially may require it to advise a party of his or her ability to seek an adjournment, or even to adjourn a hearing of its own motion. It is not possible to catalogue the circumstances in which either of these courses may be appropriate. They are likely to be rare and to involve a party who does not have legal representation. 18 In this case, the applicant was aware before the hearing that the respondent was asserting that the documents could not be found or did not exist. There is nothing in what occurred before the Tribunal to suggest that it would have been appropriate for the Tribunal to intervene in some way so as to enable the applicant to launch what is even now an unparticularised challenge to the evidence of the searches conducted of the electronic databases of the respondent. I reject the first submission.


case_outcome: considered

case_text: In addition, the Tribunal formed the view that, given the attributes of the appellant and the basis on which he claimed persecution, it would be possible for the appellant to relocate to another part of India. On this matter, I find that the decision of the Tribunal is in accordance with the principles set out by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, which were referred to in the Federal Magistrates Court. 7 It is worth noting that the Tribunal also considered the evidence of the second named applicant and formed the same conclusion. 8 Accordingly, after considering the reasons for the decision of the Tribunal and the detailed treatment of the numerous grounds raised before the Federal Magistrates Court, I am not persuaded that either the Court or the Tribunal fell into appealable error. I am not satisfied that s 424A of the Migration Act 1958 (Cth) has been breached. I do not think the circumstances for the application of that section arise in this case and, as pointed out in the decision of Federal Magistrates Court below, there are no transcripts, particulars or detailed submissions indicating that the material in question came before the Tribunal in a way other than what is stated in its decision. 9 For the above reasons I am satisfied in this case that the appeal should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 3 August 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondent: Mr J. Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 30 July 2007 Date of Judgment: 30 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1152.html


case_text: I am satisfied that the appellant has given a satisfactory explanation for his delay. However, the exercise of my discretion to set aside the orders depends not only upon the sufficiency of the explanation but also on whether I come to the view that the appellant has a properly arguable case to go to a hearing of the appeal, see NAGP v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 709 at [3] - [4] ; NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113 ; NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71 at [16] - [17] .


case_title: NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113


case_title: NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71


case_text: Nevertheless, I am satisfied that I have power to set aside the order on either of two bases; the first is order 35 rule 7(1) if the motion was filed before entry of the order. The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26] - [33] and the authorities there cited; see also DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [189] .


case_title: DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226


case_text: The Minister fairly raises another issue which was not addressed by the appellant. The issue is the question of whether section 424A was breached. The Minister concedes that in light of a decision of a Full Court in SZEEU v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU") , the Federal Magistrate's finding that a protection visa application had been adopted in writing was no longer sustainable the Minister concedes that the information contained in the appellant's protection visa application was not "information" falling within the exception contained in section 424A(3)(b) of the Act . 33 However, it seems to me to be clear that the observations of Allsop J in SZEEU at [206] and [207] are applicable. That is to say, "information" does not encompass the RRT's subjective appraisals, thought processes or determinations nor does it encompass gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing the evidence by reference to those gaps. 34 Thus, applying the approach adopted by Allsop J at [216] of SZEEU, the RRTs reasons in the present case went to the appellant's manner of giving evidence and the vague and generalised claims which he made it was those factors which informed the RRTs decision and not the information in the protection visa application itself. 35 I am satisfied on a careful reading of the decision of the RRT and the decision of the Federal Magistrate that there is no fairly arguable case that the appellant could succeed on an appeal. I therefore decline to exercise my discretion to set aside the orders which I made on 11 April 2006. 36 The order I will make is that the notice of motion be dismissed with costs. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 31 May 2006 The Appellant appeared in person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 May 2006 Date of Judgment: 24 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/648.html


case_outcome: followed

case_text: In relation to indemnity costs, categories of cases warranting the Court in departing from the usual course of ordering costs on a party to party basis were described in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 as including: 1. Making allegations of fraud knowing them to be false. 2. Evidence of particular misconduct that causes loss of time to the court and to other parties. 3. Making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions. 4. The fact that proceedings were commenced or continued for some ulterior motive or unlawful disregard of known facts or clearly established law. 5. Any prudent refusal of an offer to compromise. 19 These principles, as articulated in Colgate-Palmolive , are well known and were recently reinforced by the Full Court of the Federal Court in InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . The categories of cases I have listed are not closed. The Court clearly has wide discretion under s 43 Federal Court of Australia Act 1976 (Cth) to order costs in any particular matter. In this particular case I am not persuaded that the circumstances of the case are such as to warrant a departure from the usual practice of the Court in awarding party to party costs so far as the costs of the respondent are concerned. There is no evidence before me that this case exhibits special or unusual features so as to justify the Court exercising its discretion so as to award indemnity costs. Further, notwithstanding the failure of the applicant to attend on numerous occasions there is no evidence before me that the applicant's case against the respondent was "hopeless" or had no chance of success, or that the applicant's case was not based on evidentiary or factual foundations.


case_text: These principles, as articulated in Colgate-Palmolive , are well known and were recently reinforced by the Full Court of the Federal Court in InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . The categories of cases I have listed are not closed. The Court clearly has wide discretion under s 43 Federal Court of Australia Act 1976 (Cth) to order costs in any particular matter. In this particular case I am not persuaded that the circumstances of the case are such as to warrant a departure from the usual practice of the Court in awarding party to party costs so far as the costs of the respondent are concerned. There is no evidence before me that this case exhibits special or unusual features so as to justify the Court exercising its discretion so as to award indemnity costs. Further, notwithstanding the failure of the applicant to attend on numerous occasions there is no evidence before me that the applicant's case against the respondent was "hopeless" or had no chance of success, or that the applicant's case was not based on evidentiary or factual foundations.


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.


case_outcome: applied

case_text: is no controversy between the parties as to the principles to be applied. The inquiry is whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . The development and application of the test of reasonable apprehension of bias avoids the need for a court: "to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] .


case_text: is no controversy between the parties as to the principles to be applied. The inquiry is whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . The development and application of the test of reasonable apprehension of bias avoids the need for a court: "to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] . I am not concerned to analyse the Tribunal's actual thought processes or to identify what was done by the Tribunal in reaching its decision: Jia , at [185]. Nonetheless, against the background of the Tribunal's conceded apparent bias at the hearing stage, I am satisfied the reasonable observer might well conclude that the attitudes and predisposition to Mr Shingles there manifest, were not curbed as the Senior Member's retreat might have suggested. Rather, they were reflected in the Reasons for Decision and particularly was this so in the manner in which the Tribunal used the evidence to reach the finding that (at Reasons [35]): ... the Applicant has attempted to exaggerate the effects of his disabilities in obtaining and retaining employment. In this the lay observer might properly have said the Tribunal made an issue of a matter that was not manifest as an issue to be addressed in the case with which the Tribunal had to deal. This leads to the second basis of the Appellant's case before me. (b) Denial of Procedural Fairness In reaching its "exaggeration" conclusion in relation to the effects of Mr Shingles' disabilities, the Tribunal was not simply expressing a conclusion which followed from perceived inconsistencies in the evidence. Rather, the Tribunal was calling into question Mr Shingles' credibility directly: he was attempting to create a misleading picture of his disabilities.


case_text: is in issue for present purposes is what are the principles to be applied where, from comments made during the course of a hearing, such a reasonable apprehension may be thought to arise. It is accepted that they are as stated in the joint judgment of Brennan, Deane and Gaudron JJ and in that of Toohey J in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568. In the joint judgment the following principles were stated (at 572): Where ... comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her (at 572). The qualification placed upon this was stated to be (at 573): The statements which the learned trial judge had made about his preconceived views of Dr Lawson [an expert witness] were, however, effectively revived by what his Honour said in his reserved judgment. The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. ... the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one. The judgment of Toohey J was to like effect. Because of their present relevance I would note in particular at the following observations made by his Honour (at 587): There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed . It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J noted in Re J.R.L.; Ex parte C.J.L. [(1986) [1986] HCA 39 ; 161 CLR 342 at 372], suspicion of bias based on preconceptions existing independently of the case "may well be ineradicable". In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett [(1995) 21 VLR 3 at 6]. (Emphasis added.) (b) Denial of Procedural Fairness I should emphasise at the outset that what is complained of here is not that, when confronted with inconsistencies in the appellant's evidence, the Tribunal made choices unfavourable to him. Rather it is that the Tribunal made it a critical issue in the matter that the appellant "[had] attempted to exaggerate the facts of his disabilities in his obtaining and retaining employment" and that this was not put to him. The appellant relies upon some number of passages in the Tribunal's reasons which, when considered in the context of the Senior Member's comments during the hearing, are said to "have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer": Vakauta at 573. I set these out in order: On 10 September 1970 the Applicant commenced his Vietnam service, being posted to 2 nd Australian Ordnance Depot at Vung Tau. Although the Applicant has given accounts of his service in South Vietnam, we regard that account as exaggerated. It is unfortunate that the Respondent did not investigate the Applicant's claims more thoroughly. Had the services of a research organisation such as "Writeway" been engaged, their report would have been of material assistance to the Tribunal. Following discharge from the Army the Applicant returned to live at Woodonga with his wife. For a period of months he did not work but contented himself with going to the hotel each day and drinking until he had run out of money. Asked about his source of income at this time, he told this Tribunal that his wife was working, whereas he had told the previous Tribunal his wife was not working. (Emphasis added.) Whereas the Applicant claims that a supervisor informed him he was to be "sacked" because of his frequent absences, there is no evidence that he received any warnings from his employers that his attendance record or work was unsatisfactory. We find it difficult to believe that the Applicant would have been peremptorily dismissed from employment with a Commonwealth Authority without first being subjected to a formal warning. Apparently after voluntarily terminating his employment with the Department of Army the Applicant and his wife moved to Sydney. They lived on the Northern Beaches, and we know from the Applicant's Record of Service that at a time he was in the Army, his mother was living at Fairlight which is a suburb of the Northern Beaches. Upon arriving in Sydney the Applicant did not initially seek employment but contented himself with attending hotels. After about one month, because he needed money, he obtained a paid job as a lube operator, lasting for some three months. The Applicant then purchased an orange juice run. This franchised business failed because the Applicant did not devote enough time and attention to it. He places the failure to properly attend to the business upon his frequenting hotels. (Emphasis added.) Despite the Applicant maintaining that he was unable to retain employment because of his alcoholism and the effects of his PTSD, document T97, p220, is a reference dated 4 July 1977 which concludes "I will be sorry to loose him but he goes with my best wishes for the future". Whereas document T97, p221, is a reference from the Secretary Manager of the Cowra Services Club Ltd which reads inter alia, "Graham carried out his duties in a satisfactory and competent manner and I would have no hesitation in recommending him for a similar position". We are not persuaded to take those expressions as to his worth at other than face value. In cross-examination the Applicant conceded that when he obtained the job at Bandiana he was able to perform the tasks required of him, and that at any time he needed to get a job he was able to get one. We are therefore satisfied that the Applicant has attempted to exaggerate the effects of his disabilities in his obtaining and retaining employment. Post discharge the Applicant did not immediately seek work but on his account was drinking heavily. However, he did ultimately obtain a job and although he says he left before he could be sacked, there is no evidence of any official warning that his behaviour was placing his job in jeopardy. He and his then wife moved to Sydney and again he was able to obtain employment when he felt of the need. The Applicant claimed that his real problem was the inability to retain employment due to his alcohol abuse. This statement does not fit with the very positive references the Applicant obtained from the Cowra Services Club and the Galloping Grape Restaurant. Whereas it is not now disputed that the Applicant does have PTSD and alcohol dependence, the evidence is that the symptoms of PTSD, if they affected the Applicant at all at time of discharge, were mild in the extreme. Likewise, his alcohol dependence was present but given the references referred to above and his ability to obtain employment whenever he needed to, we find that he has exaggerated it effects upon him at time of discharge and thereafter until probably about 1979 the time of his first conviction for an alcohol-related offence. As to the Tribunal's final comment, I would note in passing that, in his affidavit that was before the Tribunal, Mr Shingles noted that: On or about 13/12/73 I lost my driving licence for three years as a result of drink driving. Consideration I will consider first the bias appeal and then will refer briefly to procedural fairness. While it is not strictly necessary for me to express a final conclusion on this difference, my own view accords with the appellant's submission. The appellant, having raised the issues of Mr Shingles' credit not having been challenged and of the impropriety of the Senior Member relying on his own knowledge, the response made by the Senior Member was sufficient to make it unnecessary to object to his continuing to sit: cf Vakauta at 587 per Toohey J. The Senior Member's comments could reasonably be taken to signal a retreat to the confines of what was permissible to an administrative decision-maker. I am in consequence not satisfied that the right to object was waived. I consider the Federal Magistrate erred in so concluding. The fundamental issue raised in Mr Shingles' bias appeal is whether the Tribunal's decision, considered in the context of the comments made at the hearing, has the effect of conveying "the appearance of impermissible bias in the actual decision". I consider that it does. The reasonable and intelligent lay observer might reasonably apprehend, in light of the Senior Member's comments, commentary and attitudes revealed at the hearing relating to Mr Shingles' war service, that Mr Shingles' claim might have been prejudged and that the evidence of this in the decision itself was afforded both in how the Tribunal characterised (disparagingly) Mr Shingles' own evidence on his obtaining and retaining employment and in the tone of some of the language used to describe his evidence (eg "For a period of months he did not work but contented himself with going to the hotel" ). I am satisfied that the decision arrived at might reasonably be said to have been contrived by a preconceived view taken of Mr Shingles with the consequence that the case he advanced might not have been fairly addressed on its merits.


case_text: parties accept that, for present purposes, the law is sufficiently stated in the reasons of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [29] - [32] : No submission was made on behalf of either the appellant or the minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576]. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [emphasis added] Particular attention was directed in argument in this court, as it had been in the courts below, to the tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said (at 590-591]: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. [emphasis added]


case_text: way of background I should emphasise that the issue before the Tribunal was "the percentage of total incapacity of [Mr Shingles] in relation to civil employment ": s 51(2): see Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663 at 666-667. Mr Shingles gave a deal of evidence of his history of obtaining and retaining employment and of the difficulties his alcohol abuse posed in both of those respects. His evidence was that he had 28 jobs in 18 years and that many of these were in the early years after discharge. I should note that the Tribunal was constituted by two members a Senior Member who had had service experience in Vietnam, and a Member who was a medical practitioner. As the bias claim relates to comments made by the Senior Member, I will for ease in exposition refer only to that member. (a) The Transcript On the first page of the transcript at the first day of hearing the following exchange is recorded between the Senior Member and Mr Shingles' counsel: Mr White: If the Tribunal would be assisted by the applicant traversing all of the matters then I will take him through. Senior Member: Well, having read what he has said about his Vietnam service, we're rather hoping that Mr Dillon [the Authority's counsel] might explore that in some detail. Mr White: Yes. Senior Member: If he doesn't, we will. Mr White: Yes. Is there anything in particular the senior Member has in mind, otherwise - - - Senior Member: I've got lots of things in mind but I will save that.


case_text: parties accept that, for present purposes, the law is sufficiently stated in the reasons of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [29] - [32] : No submission was made on behalf of either the appellant or the minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576]. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [emphasis added] Particular attention was directed in argument in this court, as it had been in the courts below, to the tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said (at 590-591]: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. [emphasis added] That was not an issue that was ever raised with him. The Authority, while relying upon conclusions to be drawn from inconsistencies, disclaimed any attack on Mr Shingles' credibility. Yet the Tribunal, without warning, made it "an issue critical to the decision": Alphaone , at 591-592. In the course of final submissions counsel for the Authority accepted that the Tribunal did not bring home to the appellant that this was a critical issue in the matter. In this Mr Shingles clearly was denied procedural fairness. In addition to the grounds specified in the Notice of Appeal, the appellant has sought leave to raise a further ground of appeal involving an alleged error of law in its construction of s 51 of the 1948 Act.


case_text: re-examination provisions were introduced following the report of the Industrial Property Advisory Committee to the Minister for Science and Technology dated 29 August 1984. The report was entitled "Patents, Innovation and Competition in Australia", and recommended the availability of re-examination "so as to utilise the expertise in the Patent Office to decide appropriate questions in the hope that this may reduce the costs of, or in some cases avoid the need for, court proceedings": see the report as quoted in Emperor Sports Pty Ltd v Commissioner of Patents [2005] FCA 996 ; (2005) 146 FCR 159 at 179-180 per Lindgren J and Termite Tite (NZ) No 2 Ltd v Term-Seal (Aust) Pty Ltd [2007] FCA 1493 ; (2007) 74 IPR 16 at 28 [50] per Besanko J. These provisions are to be read against the patent regime established under the Patents Act , including the definitions of 'novelty' and 'inventive step' in s 7 , and the related definitions of 'prior art base' and 'prior art information' in the Dictionary in Sch 1.


case_text: re-examination provisions were introduced following the report of the Industrial Property Advisory Committee to the Minister for Science and Technology dated 29 August 1984. The report was entitled "Patents, Innovation and Competition in Australia", and recommended the availability of re-examination "so as to utilise the expertise in the Patent Office to decide appropriate questions in the hope that this may reduce the costs of, or in some cases avoid the need for, court proceedings": see the report as quoted in Emperor Sports Pty Ltd v Commissioner of Patents [2005] FCA 996 ; (2005) 146 FCR 159 at 179-180 per Lindgren J and Termite Tite (NZ) No 2 Ltd v Term-Seal (Aust) Pty Ltd [2007] FCA 1493 ; (2007) 74 IPR 16 at 28 [50] per Besanko J. These provisions are to be read against the patent regime established under the Patents Act , including the definitions of 'novelty' and 'inventive step' in s 7 , and the related definitions of 'prior art base' and 'prior art information' in the Dictionary in Sch 1. Where the Commissioner reports adversely on a complete specification, the applicant or patentee may, within 2 months from the day when the Commissioner reports under s 98 , file a statement disputing the whole or any part of the report, whether or not the applicant or patentee also takes steps to amend the complete specification or files a statement of amendments in accordance with a direction of the Commissioner: see s 99. Where the re-examination was directed under s 97(3) , a copy of the report under s 98 and any statement filed under s 99 must be given to the court that gave the direction: see s 100. The Commissioner cannot revoke a patent under s 101 where (as would be the case here) relevant proceedings in relation to the patent are pending: see s 101(3). As Besanko J said in Termite Tite at 28 [51], the Commissioner in this circumstance can only provide a report under s 100 , which may be of assistance to the parties, but ultimately "it is up to the court to determine the validity issue on the evidence before it and the commissioner's report does not in any way bind the court". Where re-examination has occurred pursuant to s 97(3) , the parties to the proceeding have no right of appeal to the Court from the report of the Commissioner on the re-examination. In written submissions, B.M.W. Plastics submitted that the Court should order re-examination because the matters in issue were appropriate to be determined by the expertise of the Patents Office and determination of these issues was likely to avoid expense. According to B.M.W. Plastics, resolution of the cross-claim would require: (1) the interpretation of the claims of the patent in suit to determine their scope; (2) the interpretation of the disclosure in a US patent known as the Hancock et al patent; (3) consequential on (1) & (2), determination of the novelty of claims; (4) determination of the content of the "common general knowledge"; and (5) consequential on (1), (2) & (4), determination of the inventiveness of the claims. B.M.W. Plastics argued that the interpretation of the patent in suit and the Hancock et al patent would require expertise in the relevant technological art, which the Commissioner (but not a judge) might be said to have. B.M.W. Plastics submitted that the Commissioner might exercise this technical skill without the need for evidence from expert witnesses, and that re-examination before the Commissioner was conducive to economy. I agree with the applicant/cross-respondent that Termite Tite does not support the view that a report after re-examination necessarily provides litigation economies: see Termite Tite 74 IPR at 27-28 [50]-[51]. I doubt that the provision of a report by the Commissioner after re-examination would reduce the cost of this proceeding and expedite its determination. First, the Commissioner's report after re-examination is not binding on the Court. In the absence of an undertaking of the kind sought by B.M.W. Plastics from VIP Plastic, the provision of a report under s 100 will not necessarily relieve the Court of the task of deciding the issues of novelty and lack of inventive step by reference to the admissible evidence. If the Commissioner's report were unfavourable to VIP Plastic, it would desire to put on evidence and dispute the report. There may be additional issues for the Court to determine if it receives such a report. Further, both parties said that, regardless of the lack of novelty and inventive step grounds, there will be a need for evidence, including expert evidence, to be adduced before the Court on various other issues. In the circumstances, I am not persuaded that re-examination by the Commissioner would be most expeditious or reduce costs. Moreover, it does not seem that the anticipated trial will be a particularly lengthy or complex one.


case_text: Before considering the rival contentions, I mention three matters of a general nature which were the subject of submissions. First, the respondent referred to the well-established principle that I should not analyse the reasons of the Tribunal with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. That is certainly a matter which I must bear in mind, although I think the 'principle' is of limited relevance here because both the Tribunal's reasons and the points of construction raised by the applicant are reasonably clear. Secondly, the respondent submits that in construing the sections of the Act, I should bear in mind that it is remedial or beneficial legislation and is to be interpreted liberally. Workers Compensation legislation is often referred to as a prime example of such legislation. However, I must also bear in mind the limits on this approach to statutory construction. In Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797 (at [33] (footnotes omitted) Heydon J (with whom the other members of the Court agreed) said: 'To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the table to Sch 1 (which extends over 12 pages) are identified with considerable precision. The clauses in Sch 1 which precede the table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said,"The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".'


case_text: Section 32 is the general provision dealing with journeys to and from employment. Journeys which fall within the terms of s 32 are deemed to constitute part of an employee's employment by the Commonwealth. The journeys which fall within the section are journeys which are to and from the employee's 'employment by the Commonwealth'. In Commonwealth of Australia v Duncan (1982) 44 ALR 249 the Full Court of this Court said that the question posed by s 32 was whether the employee was journeying to or from a state of activity called employment and not whether he was journeying to or from his place of employment (at 259 per Kelly J; at 266 per Fitzgerald J). The Tribunal member held that the circumstances of the case before him did not fall within the terms of s 32(1) because although the respondent was travelling to his place of employment, he was not travelling to his duties of employment. 14 Sections 33 and 34 deem certain journeys to be journeys to the employee's employment by the Commonwealth for the purposes of s 32(1). I will focus on journeys to the employee's employment by the Commonwealth. Both of the sections are subject to the provisions of ss 35 and 36 but, subject to one matter which I will mention, those sections are not relevant for present purposes. 15 Section 33(1) provides that where an employee (other than an employee to whom s 34 applies) makes a journey to his place of employment within the period prescribed in the section or if the journey would have ended within the prescribed period then he is deemed to have made a journey to his employment by the Commonwealth. The prescribed period is a period of one hour immediately before he commenced work or would have commenced work. An employee whose journey ended or would have ended before the prescribed period may nevertheless be deemed to have made a journey to his employment by the Commonwealth if ' the journey was made by the last means of transport : (i) that was conveniently available for use by the employee; (ii) that would ordinarily have enabled the employee to complete the journey before the time at which he intended to commence work; and (iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use, ...' (s 33(2)(b))


case_title: James, Re; and Commonwealth of Australia [1983], AAT, N81/272 (Unreported, R K Todd, 6 July 1983)


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


case_text: The Tribunal member referred to two authorities: Maunder v Commonwealth of Australia (1983) 51 ALR 44; Re James and Commonwealth of Australia [1983] AAT, N81/272 (Unreported, R K Todd, 6 July 1983) and then turned to consider whether the means of transport adopted by the respondent (ie driving his own motor vehicle) satisfied the three requirements in s 34(4)(b)(i),(ii) and (iii). He held that the means of transport adopted by the respondent did satisfy the requirements and he said that the following were 'some' of the relevant circumstances: '1. The applicant used his own personal vehicle as the means of transport in accordance with what was obviously a long established practice and entitlement of Army personnel. The Army accepted that a soldier in the applicant's position was entitled to use his private vehicle to travel to his new posting and the Army was prepared to grant time and money to the applicant to facilitate that. 2. If the applicant were to return to Holsworthy by air travel it would have been necessary for him to return to Perth from Kalgoorlie in order to do so. 3. I accept the applicant's evidence that it was necessary and desirable to allow some leeway in travelling time so as to cater for the possibility of mechanical trouble and I also accept the evidence of the applicant and Mr March that it was normal for personnel arriving at a new base to arrive early. I note in passing that the current Army practice of calculating travel time on the basis of driving about 600 kilometres per day would imply a reasonable travelling time for the applicant of approximately 5 days. In my opinion it would have been unreasonable for a person in the applicant's position to have attempted to time his arrival at Holsworthy after such a long journey to the period between 8.00 pm on 23 September and 7.30 am on 24 September especially as he was expected to be fit for duty at 7.30 am.' 24 The Tribunal member then turned to consider if the means of transport adopted by the respondent was the last means of transport which satisfied s 34(4)(b)(i), (ii) and (iii). He decided that it was, although as to public transport he said no more than that 'although public transport may have been an option for the [respondent], it was not an option that, in my opinion, satisfied the three provisos ...'. 25 For these reasons, the Tribunal member concluded that the journey was deemed to be a journey to the respondent's employment by the Commonwealth for the purposes of s 32(1) of the 1971 Act and therefore part of his employment by the Commonwealth for the purposes of s 27(1) of that Act. 41 I was referred to the decision of the Full Court of this Court in Maunder v Commonwealth of Australia (supra). That case concerned a claim by Captain Maunder's widow for compensation in relation to the death of Captain Maunder from injuries he sustained in an accident in his own motor vehicle some time after he had left a regimental depot. The Administrative Appeals Tribunal rejected the claim on the ground that the means of transport used by Captain Maunder, having regard to his inebriated state, was not one he could reasonably have been expected to use within s 33(3)(b)(iii). It is true that the Court did not say transport by private motor vehicle could never be the 'first' means of transport (the case involved a journey from work) within s 33(3)(b), but the Tribunal had decided the case on a different ground and the only issue before the Full Court was whether the Tribunal had erred in law in doing so. The applicant sought to draw some support for its second submission from the following observation made by the Court (at 51): 'In speaking of the first available means of transport, s 33(3)(b) read in its context is clearly referring to the means of transport first available to the employee after the employee ceased work. The legislative intention seems to be that, if the employee delays in leaving his place of employment and commencing his journey until after the prescribed period, he must, to obtain the benefit of s 33, show that a means of transport was not available to him during the prescribed period.' 42 The applicant submitted that this observation, appropriately adapted, applied equally to those provisions dealing with journeys to employment and that an employee like the respondent who could choose to leave in his own motor vehicle at a time such that he would arrive within the prescribed period did not fall within the provisions of s 34(4)(b) of the Act. There is a good deal of force in this submission. However, I have reached the conclusion that if I were to accept the submission I would be reading words into the section which are not there. There is nothing in the section which requires the employee to show that there is no means of transport which would see him arrive within the prescribed period, or which provides that transport by private motor vehicle cannot be the last means of transport within the subsection because the employee can choose when to commence his journey and therefore, to a point in the case of a long journey, when he will arrive. 43 Once these conclusions are reached, a conclusion that it was open to the Tribunal member to find that in the particular circumstances of this case the journey by the respondent in his own motor vehicle satisfied the requirements of s 34(4)(b) is inevitable. The Army not only allowed him to drive his own motor vehicle to the Army base at Holsworthy but granted him leave to do so and contributed to the costs of doing so. In the particular circumstances of this case, transport in this way was not only a means of transport he could reasonably have been expected to use, but was the means of transport he could reasonably have been expected to use. I reject the applicant's challenge to the Tribunal member's conclusion that the case fell within the terms of s 34(4). 44 I reject the applicant's submissions and, accordingly, the appeal must be dismissed. I will hear the parties as to the costs of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 13 March 2007 Counsel for the Applicant: Mr J Lenczner Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr R J L McCormack Date of Hearing: 16 June 2006 Date of Judgment: 13 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/301.html


case_title: Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797


case_text: I refused Mr Siminton's application. Similar strike-out applications had been made to Merkel J on 30 March 2006 and to me on 18 October 2006. Those applications had been supported by substantially the same arguments and, in both cases had been rejected: see Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336 ; Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340. There was no substance to the argument advanced in support of the permanent stay applications when they were first made. It was not improved by repetition.


case_title: Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340


case_outcome: discussed

case_text: As already noted, s 65A of the Act is in substantially similar terms to those of s 1324 of the Corporations Act 2001 (Cth). In Australian Securities and Investments Commission v Mauer-Swisse Securities Limited (2002) 42 ACSR 605 at 613-614 Palmer J, having reviewed a number of authorities on the construction and operation of s 1324 continued: "[36] At the risk of some repetition, I summarise the principles which I draw from the presently applicable authorities: • the jurisdiction which the court exercises under [the Corporations Act ] s 1324 is a statutory jurisdiction, not the court's traditional equity jurisdiction; • Parliament has made it increasingly clear by successive statutory enactments that the court, in exercising its statutory jurisdiction under s 1324 , is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction; • among the considerations which the court must take into account in an application for an injunction under [Corporations Act] s 1324 are the wider issues referred to by Austin J ... and by Davies AJ ...; they may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the Corporations Act ; • these considerations are to be taken into account regardless of whether the application is for a permanent injunction under s 1324(1) or for a interim application under s 1324(4) ; • where an application under s 1324(4) is made by ASIC rather than a private litigant the court is more likely to give greater weight to the broad question whether the injunction would serve a purpose within the contemplation of the Corporations Act ; • where there is an appreciable that is, not fanciful risk of particular future contraventions of the Corporations Act by a defendant, it would serve a purpose within the contemplation of the Corporations Act that the court grant not only a permanent injunction, but, in an appropriate case, an interim injunction restraining such conduct. Section 1324 evinces an intention that the possibly severe consequences and the relatively promptness of proceedings for contempt of court be added to criminal prosecutions as a deterrent to contraventions of the Corporations Act ..." In my view these principles have application to the construction of s 65A of the Act. The principle contained in the penultimate bullet point in the passage quoted in this paragraph has equal force where application is made for a permanent injunction. 65 By s 8 of the Australian Prudential Regulation Authority Act 1998 (Cth) APRA is established, inter alia, for the purpose of regulating bodies in the financial sector in accordance with other laws of the Commonwealth, such as the Banking Act , that provide for prudential regulation. Section 65A of the Act is one of many provisions in the Act which enable APRA to take action designed to protect the interests of depositors and to promote the stability of Australia's financial system. Those objectives are to be borne in mind in exercising the discretion which is conferred on the Court by s 65A. 66 Mr Siminton has deliberately embarked on a course of conduct which has involved contraventions of the Act. He has established what he calls a "bank" and, with others, has been successful in encouraging a considerable number of people to make deposits in the "bank". They were promised high interest rates. They were told that interest payments would be made in ways which would facilitate evasion of income taxation payment obligations. Some depositors received some of the promised interest payments but then the payments ceased. Others received no interest. Some, who sought repayment of their deposits, were unsuccessful.


case_text: In Australian Independent Distributors Ltd v Winter [1964] HCA 78 ; (1964) 112 CLR 443 the High Court was called on to determine whether a friendly society was carrying on "the business of banking" contrary to s 7 of the Act. The Court quoted the passage from the judgment of Isaacs J in Permewan Wright which Rich J had incorporated in his reasons in Melbourne Corporation. The Court treated what Isaacs J had said as constituting a "definition" of the "business of banking" (at 455). The Court continued: "If that definition is applied to the present case, as we think it should be, it is apparent that the second of these essential characteristics is absent. The power to lend money conferred on the Society by Rule 7 was limited to the making of loans to its members to enable them to acquire land or buildings to be used for residential or business and residential purposes and in fact none of the Society's moneys was used for the making of loans for that or any other purpose." The second essential characteristic which was found to be absent was the lending function. The society had not made any loans. For this reason, the Court held that the trial judge had been correct to hold that the society had not carried on the business of banking and had not, therefore, contravened s 7 of the Act. 54 Counsel for Mr Siminton, relying on what was said by Isaacs J in Permewan Wright and by the Full Court in Winter , submitted that Mr Siminton could not be found to have carried on a banking business because the Terra Nova Cache did not make loans on a regular basis. It is true that the evidence disclosed only one loan, albeit a substantial loan made by the Terra Nova Cache under Mr Siminton's direction. It is to be noted, in this context, that the decision in Winter turned on the fact that the society had not loaned members' funds to anybody. In any event, the Court is empowered, by s 65A of the Act, to grant relief where a person is proposing to engage in conduct which would constitute a contravention of s 7. When addressing meetings, at which he solicited deposits, Mr Siminton told those present that, once the Terra Nova Cache was established, loans could be made to citizens of the Principality of Camside. Point 12 on the information sheet which was made available at the meetings and in the Principality of Camside's website under the heading "HM Government of Camside Banking Facilities" advised readers that: "12. It is envisaged that the next stage of Terra Nova Cache's development, once deposits are established, profitably traded and fully precious metal backed, that the bank will be offering interest free loans to its depositors/owners." Even if no regular practice of making loans had been established prior to APRA commencing this proceeding it is clear that Mr Siminton proposed to offer loans to "citizens" of Camside once the Terra Nova Cache had become established. 55 For these reasons I conclude that Mr Siminton was a person who carried on and was proposing to carry on the business of banking in Australia. He had engaged and was proposing to engage in conduct which constituted or would constitute a contravention of s 7 of the Act. 56 Section 66. Section 66(1) of the Act makes it an offence for a person who "carries on a financial business" to use the words "bank" or "banking" in relation to such a business. A "financial business" is defined in s 66(4)(c) to refer to a business that consists of, or includes, the provision of financial services or relates, in whole or part, to the provision of financial services. The term "financial services" is not defined. The words should be accorded their ordinary and natural meaning. They comprehend the provision of services of a financial nature.


case_text: Subject to hearing the parties I consider that the better course would be to appoint a receiver to deal with the funds which are subject to Gray J's order. This would seem to be an appropriate case for the appointment of a receiver, if not under s 57(1) of the Federal Court of Australia Act , under s 23 of that Act: see The University of Western Australia v Gray (No 6) [2006] FCA 1825 at [71] . This case bears many of the features which led Austin J, in Australian Securities and Investment Commission v Burke [2000] NSWSC 694 , to appoint a receiver. His Honour said (at [8]): "Without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though Mareva Orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any Mareva Orders must allow assets to be turned over in the course of business. Where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the Court may conclude, as I do in this case, that the Mareva Orders are not enough to ensure that the assets are preserved and protected, and indeed identified and brought in for the benefit of investors."


case_text: In Smithers the High Court also upheld the constitutional validity of s 243E(2)(c)(i) of the Customs Act which empowered this Court to direct the Official Trustee to take control of specified property of a person if there existed reasonable grounds for the belief that the person had engaged in narcotics dealing and derived benefits therefrom. The Court held that s 51(xxxi) had no application because it did not involve an acquisition of property by the Commonwealth, much less an acquisition on just terms. The property was placed under the control of the Official Receiver in order to ensure that the pecuniary penalty provisions in s 243B could not be rendered nugatory by disposition of property. In Commissioner of Australian Federal Police v Cox (1986) 78 ALR 509 at 514-515 Pincus J held that the same reasoning supported the validity of s 243E(2)(c)(ii) which empowered the Court to make an order directing the Official Trustee to take control of all of the property of the person involved in narcotic dealings.


case_text: The critical question is whether Mr Siminton can be said to have carried on any banking business at relevant times. "Banking business" is defined in s 5 of the Act to mean "a business that consists of banking within the meaning of paragraph 51(xiii) of the Constitution ." Section 51(xiii) does not contain the phrase "business of banking". It confers power on the Commonwealth Parliament to make laws with respect to "banking". This word, has, however, been treated by the High Court as referring to "the business of banking". In Melbourne Corporation v The Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31 at 69 Starke J said: "Banking, within the meaning of the Constitution , relates to the business of a banker and covers all those various functions which a banker undertakes. But his main functions appear to be the taking of deposits and current accounts, the issue and payment of bills and cheques drawn on him and the collection of bills and cheques for his customers." Williams J (at 97) held that the legislation authorised by s 51(xiii) "is legislation with respect of the business of banking." Rich J (at 64-5) referred to and relied on the construction placed on the word "banking" by Isaacs J in Commissioner of State Savings Bank of Victoria v Permewan, Wright & Company Limited [1914] HCA 83 ; (1914) 19 CLR 457: "While the word 'banking' is sometimes used in a colloquial and crude sense to mean the payment of money to the credit of a customer's account at a bank, the word in its normal and ordinary signification denotes the business of banking. Some assistance in defining 'banking' can be obtained from the Bills of Exchange Act 1909-1936. In this Act the word banker includes a body of persons, whether incorporated or not, who carry on the business of banking, and though banking is not defined in this Act it seems reasonable to believe that one legislative interpretation of the word would be the business carried on by a banker. In the case of Commissioners of State Savings Bank of Victoria v Permewan, Wright & Company Limited Isaacs J ... said: 'the fundamental meaning of the term' (banking) 'is not, and never has been, different in Australia from that obtaining in England. Various writers attempt various definitions, more or less discordant and many of them referring to functions that are now very common and convenient, and even prominent, as if they were indispensable attributes. The essential characteristics of the business of banking are, however, all that are necessary to bring the appellants within the scope of the enactments' (s 83 of the Victorian Instruments Act 1980 and s 88 of the Bills of Exchange Act 1909 ) 'and these may be described as the collection of money by receiving deposits upon loan, repayable when and as expressly or impliedly agreed upon, and the utilisation of the money so collected by lending it again in such sums as are required. These are the essential functions of a banker as an instrument of society.'


case_text: Save for its first word s 65A(11) is in the same terms as s 1324 of the Corporations Law 1989 (Cth) (now s 1324 of the Corporations Act 2001 (Cth)). As the Full Court noted in Medibank Private Limited v Cassidy [2002] FCAFC 290 ; (2002) 124 FCR 40 at 50-51, provisions of this kind can be traced back to the Chancery Amendment Act 1858 (UK) ( Lord Cairns Act). The purpose of such provisions is expressly to empower a Court to award damages to persons who have suffered as a result of conduct which contravenes legislative requirements whether or not a curial power to grant a mandatory injunction might also support such an order. The exercise of the power is conditioned on the existence of a power to grant an injunction. That power is conferred by s 65A(1) which is a valid provision. In my opinion there is no reason, in principle, to distinguish between the power to grant injunctions and the power to require a respondent to pay damages occasioned by the same conduct which might justify the granting of an injunction. The granting of such relief does not cast the Court in the role of a "collection service" acting on behalf of third parties. It involves a judicial act in aid of a legislative purpose. Sections 65A(11) is valid law of the Commonwealth. 25 At the outset of the trial Mr Siminton sought an order that APRA's application should permanently be stayed or struck-out as an abuse of process. No notice of motion seeking such an order had been filed but Mr Siminton had, prior to trial, filed and served a notice of preliminary objections which included a summary of the submissions which he desired to make in support of the strike-out application. Counsel appearing for APRA did not object to the application being made or argued in advance of the trial proper. 26 Mr Siminton submitted that the proceeding was an abuse of process because it had been brought for the collateral purpose of seeking information and evidence to substantiate or justify allegations that Mr Siminton had committed criminal offences under ss 7 and 66 of the Act. He said that the Court should so conclude because: • APRA had failed to accept an offer by Mr Siminton to agree to certain forms of injunction; • APRA's statement of claim failed to plead any cause of action for damages; • APRA had conceded that it lacked evidence of lending by Mr Siminton and, therefore, that he had engaged in "banking"; • Of the fact that no charges had been laid against Mr Siminton; • Of the alleged paucity of evidence linking Mr Siminton to any alleged breach of s 66; • Of APRA's claim for certain interlocutory orders which Gray J had declined to make; • Of the commencement of contempt proceedings against Mr Siminton which were heard before the trial of the present proceeding; • Of APRA's attempt to use and rely on discovery, its seeking of particulars of Mr Siminton's defence and its application that directions be made requiring Mr Siminton to file witness statements in advance of trial; and • Of what was said to be the "linking of APRA's release of frozen funds for legal expenses to the provision of information." (I take this to be a reference to the terms of order 2 of the orders made by Gray J on 10 January 2006 under which Mr Siminton was given liberty to apply on notice in writing to APRA, supported by affidavit evidence of his means, for an order that he be permitted to withdraw monies for living and legal expenses).


case_text: The critical question is whether Mr Siminton can be said to have carried on any banking business at relevant times. "Banking business" is defined in s 5 of the Act to mean "a business that consists of banking within the meaning of paragraph 51(xiii) of the Constitution ." Section 51(xiii) does not contain the phrase "business of banking". It confers power on the Commonwealth Parliament to make laws with respect to "banking". This word, has, however, been treated by the High Court as referring to "the business of banking". In Melbourne Corporation v The Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31 at 69 Starke J said: "Banking, within the meaning of the Constitution , relates to the business of a banker and covers all those various functions which a banker undertakes. But his main functions appear to be the taking of deposits and current accounts, the issue and payment of bills and cheques drawn on him and the collection of bills and cheques for his customers." Williams J (at 97) held that the legislation authorised by s 51(xiii) "is legislation with respect of the business of banking." Rich J (at 64-5) referred to and relied on the construction placed on the word "banking" by Isaacs J in Commissioner of State Savings Bank of Victoria v Permewan, Wright & Company Limited [1914] HCA 83 ; (1914) 19 CLR 457: "While the word 'banking' is sometimes used in a colloquial and crude sense to mean the payment of money to the credit of a customer's account at a bank, the word in its normal and ordinary signification denotes the business of banking. Some assistance in defining 'banking' can be obtained from the Bills of Exchange Act 1909-1936. In this Act the word banker includes a body of persons, whether incorporated or not, who carry on the business of banking, and though banking is not defined in this Act it seems reasonable to believe that one legislative interpretation of the word would be the business carried on by a banker. In the case of Commissioners of State Savings Bank of Victoria v Permewan, Wright & Company Limited Isaacs J ... said: 'the fundamental meaning of the term' (banking) 'is not, and never has been, different in Australia from that obtaining in England. Various writers attempt various definitions, more or less discordant and many of them referring to functions that are now very common and convenient, and even prominent, as if they were indispensable attributes. The essential characteristics of the business of banking are, however, all that are necessary to bring the appellants within the scope of the enactments' (s 83 of the Victorian Instruments Act 1980 and s 88 of the Bills of Exchange Act 1909 ) 'and these may be described as the collection of money by receiving deposits upon loan, repayable when and as expressly or impliedly agreed upon, and the utilisation of the money so collected by lending it again in such sums as are required. These are the essential functions of a banker as an instrument of society.' 50 In Australian Independent Distributors Ltd v Winter [1964] HCA 78 ; (1964) 112 CLR 443 the High Court was called on to determine whether a friendly society was carrying on "the business of banking" contrary to s 7 of the Act. The Court quoted the passage from the judgment of Isaacs J in Permewan Wright which Rich J had incorporated in his reasons in Melbourne Corporation. The Court treated what Isaacs J had said as constituting a "definition" of the "business of banking" (at 455). The Court continued: "If that definition is applied to the present case, as we think it should be, it is apparent that the second of these essential characteristics is absent. The power to lend money conferred on the Society by Rule 7 was limited to the making of loans to its members to enable them to acquire land or buildings to be used for residential or business and residential purposes and in fact none of the Society's moneys was used for the making of loans for that or any other purpose." The second essential characteristic which was found to be absent was the lending function. The society had not made any loans. For this reason, the Court held that the trial judge had been correct to hold that the society had not carried on the business of banking and had not, therefore, contravened s 7 of the Act.


case_text: In Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 Gibbs J dealt with s 90AA of the Trade Practices Act 1965-1971 (Cth) (the forerunner of the present s 80 of that Act). His Honour said (at 651): "In my opinion s 90AA does not confer on the Court a discretion of an arbitrary kind. It appears from the section that the object of granting an injunction is to restrain a person who has already engaged in unlawful practice from again engaging in that practice. To acquire, rather than permit, the Court to grant an injunction once the condition precedent to its grant has been established would deny the Court the power to adapt a remedy of the needs of a case and would lead to an injustice; moreover, an injunction is in its nature a discretionary remedy. Since the discretion is conferred on a court and is to be exercised in proceedings inter partes, it must be concluded, when there is no indication in the Act to the contrary, that it is to be exercised judicially. The existence of the discretion does not alter the conclusion that the power conferred by s 90AA is a judicial power."


case_text: This contention must fail. It is a matter for the Parliament to determine which measures it will adopt in order to secure compliance with legislation which is enacted pursuant to one of the heads of power conferred by s 51 of the Constitution . Parliament may determine to visit contraventions of an Act with criminal sanctions. It may also provide for civil remedies. It may determine to do both. In R v Smithers; Ex parte McMillan [1982] HCA 76 ; (1982) 152 CLR 477 the High Court dealt with a challenge to the validity of provisions of the Customs Act 1901 (Cth) which enabled certain office-holders to apply to this Court for an order that a person, who had been involved in the importation of narcotic substances, pay a pecuniary penalty to the Commonwealth. The application could be made whether or not the person had been charged or convicted of any offence under the Customs Act . The Customs Act also made importation of such substances a criminal offence. The Court held (at 485) that: "It would be a legitimate exercise of the power [s 51(i) of the Constitution when read with s 51(xxxix)] and this is conceded to make it an offence to engage in dealing in narcotic goods, being prohibited imports, that have been imported in contravention of the Act and to impose severe penalties in respect of that offence. Similarly it would be a legitimate exercise of the power to make that conduct the occasion for liability to a civil action for penalties of the traditional kind. Section 243B, in providing for the imposition of pecuniary penalties of the class provided for in Div. 3, stands in no different position. It penalises dealings in narcotic goods that have been imported in contravention of the Act . In so doing it constitutes a deterrent to importation in breach of the statutory provisions and provides a further sanction with a view to ensuring compliance with the statutory provisions governing importation. Its importance in this respect is that it seeks to deprive the dealing in narcotic goods of the considerable financial rewards which are the chief inducement for importing them into Australia and for dealing in them." 11 Sections 7 and 66 of the Act form part of a legislative scheme, protective of members of the public, which regulates the conduct of banking in Australia. Only approved persons may conduct banking businesses. Persons providing other forms of financial services may not adopt the title "bank" and thereby mislead the public as to their status. People may thereby be induced to deposit funds with the "bank". If conduct which contravenes the Act is discovered charges may be laid. The prosecution of criminal charges, however, will do nothing to protect depositors' funds. Nor will a pending trial prevent the defendant continuing to advertise that he or she is conducting a banking business. Section 65A fills this void. It enables this Court to grant immediate and long term relief where contraventions of the Act have occurred, are occurring or, it is proposed, should occur. Injunctions may issue restraining persons from engaging in contravening conduct and may require such persons to take remedial action. Such provisions are, in my opinion, incidental to the enforcement of the regulatory regime which falls squarely within the banking power. 12 Acquisition Of Property Other Than On Just Terms. The "freezing order" to which Mr Siminton refers was made by Gray J on 10 January 2006 under s 65A of the Act . There were, in fact, multiple orders. Those orders prevented Mr Siminton from dealing with funds and property held by him including deposits held in the Terra Nova Cache. Mr Siminton argues that, under the order of Gray J, the Commonwealth has acquired his property, namely his money and other assets. He has effectively been deprived of that property while the order remains in force. This, he submits, involved a contravention of s 51(xxxi) of the Constitution . 16 In Smithers the High Court also upheld the constitutional validity of s 243E(2)(c)(i) of the Customs Act which empowered this Court to direct the Official Trustee to take control of specified property of a person if there existed reasonable grounds for the belief that the person had engaged in narcotics dealing and derived benefits therefrom. The Court held that s 51(xxxi) had no application because it did not involve an acquisition of property by the Commonwealth, much less an acquisition on just terms. The property was placed under the control of the Official Receiver in order to ensure that the pecuniary penalty provisions in s 243B could not be rendered nugatory by disposition of property. In Commissioner of Australian Federal Police v Cox (1986) 78 ALR 509 at 514-515 Pincus J held that the same reasoning supported the validity of s 243E(2)(c)(ii) which empowered the Court to make an order directing the Official Trustee to take control of all of the property of the person involved in narcotic dealings.


case_text: The words "acquisition of property" in s 51(xxxi) of the Constitution are not to be read in isolation. In Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10 ; (1994) 179 CLR 270 at 285, Deane and Gaudron JJ observed that: "[T]he power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connection with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with the law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi)." In Lawler the Court held that a provision of the Fisheries Management Act 1991 (Cth), which empowered a Court, which convicted a person who had engaged in unlicensed commercial fishing in Australian Waters, also to order forfeiture of the boat used to undertake the fishing. The statutory power to order forfeiture was held not to be a law with respect to the acquisition of property within the meaning of s 51(xxxi).


case_text: The Separation of Powers Point. It will be convenient to deal with the final two arguments advanced by Mr Siminton together. They allege that s 65A of the Act confers legislative and executive power on the Court contrary to the implied limitation recognised in R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254. 22 As I understood the argument advanced by Mr Siminton it was that s 65A of the Act confers very wide powers on the Court. It is said that these powers are wide enough to enable the Court to act as a Royal Commission or Board of Inquiry, to award damages without the assistance of guiding criteria and to act as a surrogate or "collection service" for third persons who may wish to obtain damages from Mr Siminton.


case_text: The hearing of an application, made under s 65A of the Act , is not a trial on indictment of any offence against a law of the Commonwealth and, in particular, of an offence against s 7 of the Act : cf Sterling v Trade Practices Commission (1981) 51 FLR 1 at 8. The application does not place Mr Siminton in jeopardy of a conviction for any offence or the imposition of any criminal penalty. 23 Section 65A of the Act was inserted in 2000, see Financial Sector Legislation Amendment Act (No 1) 2000 , s 20. Under the former legislation, ss 7 and 66 of the Act contained penalty provisions only. The inclusion of s 65A was designed to allow APRA, subject to Court approval, to act pre-emptively to stop undesirable activities rather than simply acting to impose punishment after the damage had occurred: see Explanatory Memorandum, Financial Sector Legislation Amendment Act (No 1) 2000 . Many of its sub-sections are drafted in the same or substantially the same terms as provisions to be found in other Commonwealth legislation. Comparisons can be drawn with s 80 of the Trade Practices Act 1974 (Cth), s 12GD of the Australian Securities and Investment Commission Act 1989 (Cth), and s 1324 of the Corporations Law 1989 (Cth). The constitutional validity of these equivalent provisions has been upheld by Court decisions spanning many years. Section 80(1) of the Trade Practices Act , which corresponds with s 65A(1) was held by Lockhart J to be a valid law of the Commonwealth Parliament in Trade Practices Commission v Sterling (1980) 28 ALR 497 at 517-9. An appeal from his Honour's decision was dealt with by a Full Court. The appellant did not, on appeal, seek to argue that his Honour's decision as to the validity of s 80(1) was wrong. It was, however, argued that sub-ss (4) and (5) of s 80 which contained provisions equivalent to those to be found in s 65A(3) were invalid, being beyond constitutional power. These submissions were rejected by the Full Court: see Sterling v Trade Practices Commission (1981) 51 FLR 1 at 7-9.


case_title: The University of Western Australia v Gray (No 6) [2006] FCA 1825


case_text: In my view this is a case which requires the granting of injunctions which will restrain Mr Siminton from any repetition of his past misconduct. There is an appreciable risk that, unless restrained, Mr Siminton will resume the course of conduct which caused APRA to make this application. The granting of an injunction is also warranted as a means of marking the Court's disapproval of the flagrant breaches of the Act which had been perpetrated by Mr Siminton; see Trade Practices Commission v Mobil Oil Australia Limited (1985) 4 FCR 296 at 300. 69 Mr Siminton should be restrained from: • Receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside; • Assuming or using the words "bank", "banker" or "banking", or any words or phrases of like import, in relation to his business; and • Advertising, representing or stating that he will carry on banking business. The injunction should also prevent him undertaking such activities through servants or agents. Mr Siminton should also be required to publish and maintain on the first page that any user views on relevant websites, a notice warning them that neither the Terra Nova Cache nor the Principality of Camside are entities which may lawfully conduct a banking business in Australia. 70 APRA also seeks orders under s 65A(11) of the Act requiring Mr Siminton to pay damages to depositors in the Terra Nova Cache and an order, under s 57 of the Federal Court of Australia Act , appointing a receiver to deal with the funds which are subject to the Mareva Orders made by Gray J on 10 January 2006.


case_text: Section 65A of the Act was inserted in 2000, see Financial Sector Legislation Amendment Act (No 1) 2000 , s 20. Under the former legislation, ss 7 and 66 of the Act contained penalty provisions only. The inclusion of s 65A was designed to allow APRA, subject to Court approval, to act pre-emptively to stop undesirable activities rather than simply acting to impose punishment after the damage had occurred: see Explanatory Memorandum, Financial Sector Legislation Amendment Act (No 1) 2000 . Many of its sub-sections are drafted in the same or substantially the same terms as provisions to be found in other Commonwealth legislation. Comparisons can be drawn with s 80 of the Trade Practices Act 1974 (Cth), s 12GD of the Australian Securities and Investment Commission Act 1989 (Cth), and s 1324 of the Corporations Law 1989 (Cth). The constitutional validity of these equivalent provisions has been upheld by Court decisions spanning many years. Section 80(1) of the Trade Practices Act , which corresponds with s 65A(1) was held by Lockhart J to be a valid law of the Commonwealth Parliament in Trade Practices Commission v Sterling (1980) 28 ALR 497 at 517-9. An appeal from his Honour's decision was dealt with by a Full Court. The appellant did not, on appeal, seek to argue that his Honour's decision as to the validity of s 80(1) was wrong. It was, however, argued that sub-ss (4) and (5) of s 80 which contained provisions equivalent to those to be found in s 65A(3) were invalid, being beyond constitutional power. These submissions were rejected by the Full Court: see Sterling v Trade Practices Commission (1981) 51 FLR 1 at 7-9.


case_text: The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295.


case_title: Hadid v Lenfest Communicaitons Inc (1996) 70 FCR 403

case_text: The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.


case_title: Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1349