case_text: That is not to say that the Tribunal must express findings that make explicit its degree of conviction or confidence that the findings are correct ( Rajalingam at [64]). The assessment of whether the Tribunal had real doubts is to be determined by reference to the Tribunal's reasons as a whole (at [67]): Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the [Tribunal's] reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. [emphasis added]


case_outcome: cited

case_text: At [25] Smith FM acknowledged the doubts expressed in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] about the ability to tell truth from falsehood on the basis of appearances of witnesses, without basing conclusions as far as possible on contemporary materials, objective facts and the logic of events. His Honour found (at [26]) that: ... the difficulty facing the ... Tribunal in a case such as the present is that it must assess the applicant's evidence given in an interview, without "contemporary material" nor "objectively established facts" which can provide easy tests of the credibility of the applicant's account of persecution. This leaves an assessment of "the apparent logic of events" in a refugee applicant's history as an important part of a credibility finding, and the present Tribunal has performed that assessment ... in my opinion the present Tribunal made no jurisdictional error by also putting significant weight upon its impression of the applicant as a witness. 16 The appellant submits that the Tribunal made its first credibility finding based only on demeanour and not on ' the apparent logic of events '. He says that there were no inconsistencies or contradictions in the evidence presented to the Tribunal. 17 The Tribunal's rejection of the appellant's claims was based upon several strands of reasoning, only one of which concerned the appellant's demeanour while giving evidence and the manner in which he gave evidence. As well as finding that the appellant's testimony appeared to be rehearsed, the Tribunal determined that the appellant had changed his evidence regarding his knowledge of the charges made against Mr Ibrahim in 2001. Further, the appellant's claim that he was dismissed from his job because of his political activities was found not to be credible because he failed to give a convincing explanation for the delay of nine months between the demonstration in which he participated and his dismissal. Moreover the Tribunal did not find it believable that the appellant would be dismissed from his job while another, more politically active, staff member ('Mr S') was only demoted.


case_text: The appellant's submission that the Tribunal must apply the real chance test to each finding of fact in relation to past events claimed is misguided. So too is the appellant's attempt to overcome the High Court's reasoning in Guo by reliance on what was said to the contrary by Einfeld J at first instance ( Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151).


case_outcome: considered

case_text: Where the reasons did not suggest that the Tribunal had any real doubt in its findings of fact, such as where it states in clear terms that it did not accept the applicant's assertions, the Tribunal is not obliged to consider the applicant's chances of persecution by references to possibilities that it did not accept ( Rajalingam at [68]). Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its findings of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ( Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 at [25] per North and Madgwick JJ). In Kalala conclusions reached by the Tribunal as to whether certain events did or did not take place were attended by significant doubt. At [6] [7] North and Madgwick JJ stated that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.


case_text: In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. In Guo , the High Court emphasised that the "real chance" test is not a substitute for the Convention term "well-founded fear" (at 572). A fear is "well-founded" when there is a real substantial basis for it. It is not well founded if it is merely assumed or if it is mere speculation ( Guo at 572).


case_text: In Guo at 573, the High Court also affirmed what was said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281, that an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. 46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear as discussed by the High Court in Guo and Wu Shan Liang , whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. There are, however, limits to the application of this principle, known as the "what if I am wrong" test. This does not preclude the Tribunal making a finding with certainty. It is where the Tribunal is uncertain as to whether an alleged event occurred or finds that the event might have occurred that it should, in considering the ultimate question, take into account the possibility that it did take place (at [62]).


case_text: The appellant asserts that he never said to the Tribunal that he found out about the charges against Mr Ibrahim later and that the Tribunal used trivial matters and incomplete information to make a credibility finding against him. The appellant also asserts that actual charges against Mr Ibrahim were immaterial because the appellant was protesting the political persecution of Mr Ibrahim rather than the specific charges laid. Therefore, he submits, the Tribunal's decision was not based on findings of fact that were grounded upon probative material and logical grounds. If so, the Tribunal's decision may be subject to review ( Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] per Gummow J). 26 The Tribunal identified the bases for its conclusions, being the responses provided by the appellant to the Tribunal's questioning concerning the charges brought against Mr Ibrahim. These responses are supported by the transcript.


case_text: A finding that a past event occurred is not in the same category as an assessment of the likelihood of a future event occurring. It is the latter that requires an assessment of real chance. An assessment of the likelihood that the applicant will be persecuted for a Convention reason ordinarily involves making findings about whether all or part of the applicant's account of past events should be accepted ( Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1997) 93 FCR 220 per Sackville J at [34]). The past event either did or did not occur. 46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear as discussed by the High Court in Guo and Wu Shan Liang , whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. There are, however, limits to the application of this principle, known as the "what if I am wrong" test. This does not preclude the Tribunal making a finding with certainty. It is where the Tribunal is uncertain as to whether an alleged event occurred or finds that the event might have occurred that it should, in considering the ultimate question, take into account the possibility that it did take place (at [62]). 47 That is not to say that the Tribunal must express findings that make explicit its degree of conviction or confidence that the findings are correct ( Rajalingam at [64]). The assessment of whether the Tribunal had real doubts is to be determined by reference to the Tribunal's reasons as a whole (at [67]): Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the [Tribunal's] reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. [emphasis added] 48 Where the reasons did not suggest that the Tribunal had any real doubt in its findings of fact, such as where it states in clear terms that it did not accept the applicant's assertions, the Tribunal is not obliged to consider the applicant's chances of persecution by references to possibilities that it did not accept ( Rajalingam at [68]). Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its findings of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ( Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 at [25] per North and Madgwick JJ). In Kalala conclusions reached by the Tribunal as to whether certain events did or did not take place were attended by significant doubt. At [6] [7] North and Madgwick JJ stated that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. 53 An integral part of the process of determining whether there is a real chance of persecution is the formation of conclusions on past events ( Guo at 575). The Tribunal is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred ( Rajalingam ; Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57 at [50] ).


case_text: The appellant submits that it is evident from the Tribunal decision that the Tribunal was not confidently satisfied that the events did not take place. The appellant submits that the inadequacy of the evidence cited by the Tribunal to support its findings gives rise to the inference that it was not confidently satisfied that the past events did not take place as the appellant claimed ( Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ). The appellant accepts that the attribution of greater weight to one piece of information as against another is not necessarily inconsistent with the correct application of Chan . He argues, however, that this is only appropriate when the question of whether each persecutory event of significance occurred is assessed on real chance and not on probability.


case_text: The Tribunal was entitled to have regard to and base findings on the appellant's demeanour while giving evidence ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [34] ; W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] ). However, in assessing the appellant's credibility, the Tribunal's findings were not made on demeanour alone. The Tribunal assessed the appellant's claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal. 34 The appellant points to the test in Ex parte H at [27] where the Court expressed the test for apprehended bias as ' whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided '. The appellant submits that the fair-minded observer of this case would conclude that since there was nothing the Tribunal could find against the appellant on any substantive matters, it ' picked on trivial matters to deny the application ' and accordingly demonstrated bias. 35 Federal Magistrate Smith found that the Tribunal's ultimate reasons for rejecting the credibility of the appellant carried no suggestion of bias, or of a closed mind before the Tribunal arrived at its findings (at [51]). His Honour said that he could find no evidence suggesting that the proceedings of the Tribunal might give rise to a reasonable apprehension that the Tribunal might have closed its mind to the merits of the matter (at [52]).


case_text: The appellant contends that Smith FM erred in this finding and that the appellant's manner could have been ascertained by his Honour examining the transcript and listening to the tapes. The appellant points to several authorities that caution against findings made by reference to demeanour alone: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583 per Kirby J at [88]; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597 at [17] [18] referring to SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367 ; (2002) 121 FCR 185 at [21] [31].


case_outcome: applied

case_text: The circumstances in which a court will find that an administrative decision-maker has not acted in good faith are rare ( SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44]). Bad faith must be clearly alleged and proved ( SBBS at [43]). There is nothing on the face of the Tribunal's reasons that gives rise to a suggestion that the Tribunal was biased or to a reasonable apprehension of bias on the part of the Tribunal. The Tribunal gave detailed and considered reasons for its rejection of the appellant's claim. The mere making of findings adverse to the appellant does not indicate bias or apprehended bias. Even if the appellant could establish error or irrationality on the part of the Tribunal, mere error or irrationality does not demonstrate a lack of good faith ( SBBS at [45]). 37 I have rejected grounds one to three above on which the appellant relies to establish bias but, even considered cumulatively, they do not demonstrate actual or apprehended bias. The appellant submits that the Tribunal engaged in "nit picking". Questioning the appellant or expressing concern about facts and claims that may be said to be of minor overall importance does not demonstrate a closed mind and does not amount to apprehended bias. 38 This ground of appeal does not succeed.


case_title: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583


case_text: The appellant's protection visa application was refused by a delegate of the Minister ('the delegate's decision'). The Tribunal affirmed the delegate's decision in January 2004 ('the first Tribunal hearing'). The first Tribunal decision was quashed by order of the Federal Magistrates Court in March 2006 and the matter was remitted to the Tribunal for re-hearing ('the second Tribunal hearing'). The Tribunal again affirmed the delegate's decision ('the Tribunal decision'). Federal Magistrate Smith dismissed an application for review of the Tribunal decision ( SZCOS v Minister for Immigration & Anor [2007] FMCA 1471). The appellant appeals from Smith FM's decision. 3 In its reasons the Tribunal set out the appellant's claims regarding his alleged persecution in Malaysia. Those claims related to the appellant's support of the opposition party in Malaysia, the National Justice Party ('the NJP'). The appellant claimed that he had donated money to the NJP and demonstrated at the trial of Mr Anwar Ibrahim in 2001. As a consequence of those activities the appellant alleged that he had been attacked and detained by the police overnight and subsequently dismissed from his job in a Malaysian hotel. In 2002 the appellant left Malaysia and visited Australia. The appellant claimed that upon returning to Malaysia he was again detained by police, for a period of two months. The appellant contended that if he returned to Malaysia the police would continue to harass him and he would again be detained. 4 The appellant also asserted discrimination because of his religious beliefs and race, as a Christian of Malaysian ethnicity. Specifically the appellant pointed to the fact that he had experienced some discrimination in relation to housing, education and employment opportunities in Malaysia. The appellant contended that if he returned to Malaysia he would be persecuted as the Malaysian police ' are Muslims, anti-Christian, anti-minority and are fired up by Islamic fundamentalism... '.


case_text: It follows, the appellant contends, that the Tribunal based its decision on inadequate evidence and a finding based on inadequate evidence points to a misconstruction by the Tribunal of the test to be applied ( SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824 at [32] per Greenwood J).


case_title: WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597


case_text: The Tribunal was entitled to have regard to and base findings on the appellant's demeanour while giving evidence ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [34] ; W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] ). However, in assessing the appellant's credibility, the Tribunal's findings were not made on demeanour alone. The Tribunal assessed the appellant's claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal.


case_text: An integral part of the process of determining whether there is a real chance of persecution is the formation of conclusions on past events ( Guo at 575). The Tribunal is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred ( Rajalingam ; Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57 at [50] ).


case_text: doubt as to whether this Court's jurisdiction has been properly invoked need not presently be resolved because the power to transfer a proceeding exists even where a question arises as to jurisdiction: cf Assad v Minister for Immigration and Citizenship [2008] FCA 1039. Tamberlin J there concluded: [21] I note that during argument as to whether the Court ought to transfer the matter to the Federal Magistrates Court, a question arose as to whether this Court has power to remit a "proceeding" to the Federal Magistrates Court where this Court does not have jurisdiction due to the absence of a federal "matter". In my view, the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1976 (Cth) is distinct from the expression "matter" (as used in s 39B(1) of the Judiciary Act 1903 (Cth)) and is sufficiently wide to encompass the present dispute between the parties. I therefore consider that the Court has power to, and should, transfer the proceeding notwithstanding any doubt which may exist as to its jurisdiction to hear and determine the application. Having considered the factors set forth in s 32AB(6), O 82 r 7, and the submissions made both in writing and orally, it is considered that the present proceeding should be transferred to the Federal Magistrates Court. What further orders or directions as that Court may hereafter make is a matter for that Court to determine. No submission was advanced that a referral of a proceeding pursuant to s 32AB to the Federal Magistrates Court can in any way constrain the manner in which that Court thereafter itself deals with the proceeding.


case_title: Beetham v Cortra Pty Ltd [2003] FCA 150

case_text: power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish & Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.


case_text: present purposes it may be accepted that each of these issues may well be raised during the course of the proceeding. None of the " complicated points ", however, are such that they cannot be resolved by a Federal Magistrate. As was properly recognised by Counsel for the Applicant, assistance has been provided by other courts as to the manner in which at least some of the statutory provisions in question are to be applied: e.g. Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422 , 47 NSWLR 735. But there remain difficult issues of statutory construction which are yet to be resolved — or so it was contended by the Applicant. There was said to be " contrary views " expressed by different superior courts. But the Federal Magistrates Court, it should be recognised, routinely confronts and has to interpret a myriad of complex statutory provisions and routinely has to resolve difficult questions of evidence and law. That quite frequently is the nature of the jurisdiction entrusted to that Court. Not surprisingly, Counsel for the Applicant did not refer in his outline of written submissions to the Defence pleading such further facts as: the non-disclosure of convictions for offences other than for " not wearing a seatbelt "; the non-disclosure of convictions for driving with more than the prescribed concentration of alcohol; and the driving of the vehicle the subject of the claim by a driver " under the influence of intoxicating liquor ". It is envisaged by the insurer at least that it will be necessary to issue subpoenas and to obtain discovery. The insurer further contends that a significant aspect of its case will be the question as to whether liability can be denied simply upon the basis that the driver of the vehicle was intoxicated at the time of the accident. The insurer envisages that relevant to that part of its case there will be the need to call evidence from police officers, ambulance officers and possibly evidence from those in the emergency department of the hospital to which the driver was taken after the accident. If this be the manner in which the claim is ultimately resolved, the only " complicated point " that may have to be resolved may be confined to s 37 of the New South Wales Act. Even though it may be accepted that points of general importance may emerge from the most mundane or apparently simple of cases, it is considered that the present proceeding remains a claim made upon an insurance policy in respect to a motor vehicle accident. Even if the jurisdiction of this Court has been properly invoked, such claims only invite inquiry as to whether they should be transferred to the Federal Magistrates Court. The potential importance to the present parties of such provisions as ss 13 , 21 and 28 of the Insurance Contracts Act 1984 (Cth) may also be accepted. The application of such provisions, however, will in all likelihood largely depend upon the facts and circumstances to which they are to be applied. As was recognised by both the Applicant and the Respondent, and depending upon how the facts are ultimately to be resolved, one or other of the " complicated points " may not finally emerge for resolution. And such importance as may emerge from the application of those statutory provisions as may extend beyond the interests of the present parties (if any), it is considered, is no reason why it is not appropriate to transfer the proceeding to the Federal Magistrates Court.


case_title: Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361


case_title: Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355


case_title: Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253


case_title: Melville v Macquarie University [2006] FCA 1761


case_title: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571


case_title: Ozluk v Australian Turkish & Kurdish Community Services Co-Operative Ltd [2008] FCA 352


case_title: Rahman v Dayeh [2006] FCA 1362

case_text: power to make an order tansferring a proceeding to the Federal Magistrates Court is a discretionary power (s 32AB(1)) which may be exercised upon the Court's own initiative (s 32AB(2)(b)). It is thus a power which may be exercised even though an applicant may oppose such an order being made: e.g. Rahman v Dayeh [2006] FCA 1362. But where the parties consent to the making of such an order, Jacobson J has observed that such consent is " decisive ": Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [3] . Notwithstanding the fact that the Applicant does not wish for the proceeding to be transferred, it is considered that the case essentially involves a motor vehicle accident claim upon an insurance policy. That claim can be expeditiously resolved in the Federal Magistrates Court. As was stated by Gyles J in Rahman v Dayeh at [3]: ... It has been put that the Federal Magistrates Court is an inferior court and that, even if it has jurisdiction, it is best exercised by the Federal Court as a superior court. Federal Magistrates are Federal judicial officers governed by Ch III of the Constitution although, in a sense, judges of an inferior court. Both the qualifications for appointment and the characteristics of those individuals who have been appointed, fit them to undertake jurisdiction which might not previously have been thought appropriate. Even though I must pay regard to the opposition of the applicant, in one sense the applicant may be gaining another level of appeal to this Court. Although it is not certain whether the proceeding will be heard at an earlier point of time in the Federal Magistrates Court than in this Court, there is no reason why it could not be heard as expeditiously as that Court considers appropriate. Such legal costs as will be incurred, it is to be expected, will be less — or at least no more — than those that would be incurred in this Court. The Respondent insurer this morning adopted a " neutral stance " as to whether the proceeding should be transferred. Notwithstanding the careful written submissions advanced by Counsel for the Applicant, it is not considered that the proceeding involves any point of general importance, let alone a point which should be resolved by a single judge of this Court — at least initially. If attention is confined to the Application and the Statement of Claim, the only two " federal aspects " of the claim there advanced are: the claim for interest pursuant to s 57 of the 1984 Act; and the Particulars provided as to a possible implied term of the policy. Neither of those matters, nor any other aspect of the Statement of Claim , is considered to raise any point of general importance. Indeed, it is not understood that Counsel for the Applicant sought to contend otherwise. Whether or not any term is to be implied may possibly depend upon a resolution of disputed facts which, it is considered, are best resolved before a Federal Magistrate.


case_text: power to make an order tansferring a proceeding to the Federal Magistrates Court is a discretionary power (s 32AB(1)) which may be exercised upon the Court's own initiative (s 32AB(2)(b)). It is thus a power which may be exercised even though an applicant may oppose such an order being made: e.g. Rahman v Dayeh [2006] FCA 1362. But where the parties consent to the making of such an order, Jacobson J has observed that such consent is " decisive ": Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [3] . The power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish & Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.


case_title: Sheikholeslami v University of New South Wales [2006] FCA 712


case_title: Morton v Robins (1996) 14 ACLC 1197

case_text: second respondent accepted that, when acting as an eligible Judge under s 129A of the Bankruptcy Act and determining to issue a warrant under s 130 of that Act, a Judge is not acting in a judicial capacity or exercising judicial authority. This concession was properly made: see Morton v Robins (1996) 14 ACLC 1197. He also accepted that the decision of an eligible Judge under s 130 of the Bankruptcy Act was a decision of an administrative character made under an enactment which, if he had standing, was a decision which the applicant could challenge under the ADJR Act. This concession was also properly made: see Morton at 1198. CONSIDERATION Standing The second respondent contends that there is no evidence that the applicant is a person aggrieved by his Honour's decision to issue a search warrant. The warrant was to be executed at the premises of TS&B Retail and was so executed. The warrant was, it was said, issued because of matters arising in relation to the applicant's bankrupt estate rather than the bankrupt himself. For these reasons it was submitted that the applicant did not have standing to apply for review under s 5 of the ADJR Act. Counsel for the applicant did not point to any evidence before the Court which went to the standing of the applicant. He did however state that, when the warrant was executed, the applicant claimed that some of the documents seized were subject to a claim, by him, of client legal privilege. As a result those documents were segregated and have not been examined by the second respondent. He submitted that his client's interest in preserving the confidentiality of the privileged material was a relevant interest which was affected by the decision to issue the warrant. Had the warrant not been issued the maintenance of that confidentiality would not have been compromised. A person has the necessary standing to bring an application under the ADJR Act if he or she is aggrieved by the decision which it is desired to challenge. By s 3(4) of the ADJR Act it is provided that a person will be taken to be aggrieved by a decision if that decision adversely affects the interests of the person.


case_text: term "person who is aggrieved", used in the ADJR Act, is not narrowly to be confined: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996 ; (1994) 49 FCR 250 at 259. A person will have standing if his or her "interests", broadly defined, are affected by the particular decision. Proprietary and financial interests are relevant interests. They are, however, by no means the only interests comprehended by s 3(4). It will be necessary, in any particular case, for the Court to form a judgment as to whether the person's interests are affected to such a degree as to warrant the grant of standing: see Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382. Another relevant, but not decisive, consideration is whether the applicant had a right to be heard prior to the making of the decision in question: see Alphapharm at 260 - 261; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 95. If a person has a right, interest or legitimate expectation which entitles him or her to be heard prior to a particular decision being taken it is more likely that that person will be treated as having standing to challenge the decision once made than a person who lacked a sufficient interest to attract the requirements of procedural fairness.


case_text: term "person who is aggrieved", used in the ADJR Act, is not narrowly to be confined: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996 ; (1994) 49 FCR 250 at 259. A person will have standing if his or her "interests", broadly defined, are affected by the particular decision. Proprietary and financial interests are relevant interests. They are, however, by no means the only interests comprehended by s 3(4). It will be necessary, in any particular case, for the Court to form a judgment as to whether the person's interests are affected to such a degree as to warrant the grant of standing: see Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382.


case_text: Court's judgment will be influenced by the nature of the particular decision and the extent to which the interests of the applicant rise above those of an ordinary member of the public: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443 ; (1986) 13 FCR 124 at 133 per Gummow J. See also Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 473; Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.


case_title: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462


case_title: Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476


case_text: relevant, but not decisive, consideration is whether the applicant had a right to be heard prior to the making of the decision in question: see Alphapharm at 260 - 261; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 95. If a person has a right, interest or legitimate expectation which entitles him or her to be heard prior to a particular decision being taken it is more likely that that person will be treated as having standing to challenge the decision once made than a person who lacked a sufficient interest to attract the requirements of procedural fairness.


case_title: Osmond v Public Service Board [1984] 3 NSWLR 447

case_text: introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2.


case_title: Comcare Australia v Lees (1957) 151 ALR 647


case_title: Hatfield v Health Insurance Commission (1987) 15 FCR 487


case_text: introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2. Because of the view which I have formed as to the operation of paragraph (f)(iii) of Sch 2 it is not necessary for me to express a concluded view as to whether or not sub-paragraph (iv) might also have rendered the decision one to which s 13 of the ADJR Act did not apply. Had I been of the view that s 13(11)(c) did not operate to exclude the operation of that section further issues would have arisen. One would have been whether the order sought should have been refused in the exercise of the Court's discretion: see s 13(7) of the ADJR Act and cf Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2. Moreover, it may have been necessary to make any order for the provision of reasons subject to the provisions of s 13A of the ADJR Act: cf Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 509-10.


case_title: ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197


case_title: Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1


case_text: statement will be treated as inadequate if it states conclusions without providing particulars of or explanations for those conclusions: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 16 FCR 465 at 482-3 or if it does not record the decision-maker's findings on material questions of fact: Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9. Section 13 does not, however, impose an onerous burden on decision-makers. As Lockhart J observed in Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 502 a decision on whether reasons are adequate or not must depend on the circumstances of a particular case. His Honour said: "The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically."


case_title: Sullivan v Department of Transport (1978) 20 ALR 323


case_title: Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498


case_text: next question becomes whether the provisions of s 13(11)(b) of the ADJR Act relieved his Honour of the obligation to comply with the applicant's request. He would be so relieved if his original decision had been accompanied by a statement which satisfied the elements prescribed by s 13(1). I have framed the proposition in this way because, although there are some linguistic differences between s 13(1) and s 13(11)(b), like Stone J in Madera v Commissioner of Taxation [2004] FCA 1616 ; (2004) 214 ALR 327 at 333, I consider that the similarities in the language employed suggests no relevant difference in the nature of the statement which will satisfy these provisions. So understood s 13(11)(b) does not apply because, as I have already held, the notation did not constitute a statement of reasons within the meaning of s 13(1) of the ADJR Act. Operation of s 13(11)(c) I also sought submissions from the parties as to whether or not s 13(11)(c) might have application by reason of some of the provisions of paragraph (f) of Schedule 2 of the ADJR Act. Schedule 2 contains a list of classes of decisions that are not decisions to which s 13 applies. Relevantly, paragraph (f) reads: "(f) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for recovery of pecuniary penalties arising from contraventions of enactments, and, in particular: (i) ... (ii) ... (iii) decisions in connection with the issue of search warrants ... under enactments; and (iv) decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses ..." Counsel for the applicants submitted that the decision to issue a warrant under s 130 of the Bankruptcy Act was not a decision caught by paragraph (f). Counsel for the second respondent drew the Court's attention to potentially relevant authorities but did not make a firm submission one way or the other as to whether paragraph (f) applied to decisions made under s 130.


case_outcome: followed

case_text: parties referred to decisions of Full Courts of this Court on the construction of paragraph (f). The first of those decisions was Ricegrowers Co-operative Mills Ltd v Bannerman [1981] FCA 211 ; (1981) 38 ALR 535. In that case the Trade Practices Commission had issued a notice under s 155 of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act ") requiring the appellant to furnish the Commission with certain information and to produce certain documents. Ricegrowers sought the provision of a statement of reasons for the decision to issue the notice under s 155. The Full Court held that paragraph (f) operated to render decisions, made under s 155 of the Trade Practices Act , to issue notices which required provision of information and the production of documents as decisions to which s 13 of the ADJR Act did not apply. Although all members of the Full Court were agreed as to the outcome of the appeal, they differed as to the construction of paragraph (f). In their joint judgment Bowen CJ and Franki J said (at 540-1) that: "In our opinion the basic limits in para (f) are to be found in the opening words which provide that decisions in connection with the institution of proceedings in a civil court or in connection with the conduct of proceedings in a civil court are outside s 13. We are only concerned with decisions in connection with the institution of proceedings in decisions that relate to the bringing of such proceedings or that may result in the bringing of such proceedings ... Paragraph (f) concludes with the words "in particular" indicating that the following four classes of decisions are encompassed by the broad opening words. The first and fourth sub-paragraphs are again of a broad and relevant nature. We read para (f)(iv) as excluding from s 13 decisions in connection with the investigation of persons for contravention of enactments and decisions under enactments requiring the production of documents and the giving of information. It would be difficult to find words which more clearly exclude from s 13 of the [ADJR] Act a decision to issue a notice under s 155 of the Trade Practices Act ." The other member of the Court, Northrop J, found it difficult to see how a decision to serve a notice under s 155 of the Trade Practices Act , which had been taken at a time when the Trade Practices Commission had formed no opinion as to whether to institute proceedings in a civil court or bring proceedings for the recovery of pecuniary penalties, could come within the opening provisions of paragraph (f). His Honour was, however, persuaded that sub-paragraph (f)(iv) operated of its own force to exclude decisions made under s 155 of the Trade Practices Act even when civil proceedings had not been instituted and there existed no certainty or probability that such proceedings would be instituted (at 547-8). The second case was Murphy v KRM Holdings Pty Ltd [1985] FCA 495 ; (1985) 8 FCR 349 in which a Full Court held that paragraph (f) did not apply to a decision to seize imported goods under s 203(2) of the Customs Act 1901 (Cth) ("the Customs Act "). Fox J (at 351) held that the provisions of sub-paragraphs (i) to (iv) had to be read subject to the opening words of the paragraph and that a decision to seize goods was not a decision in connection with the institution or conduct of civil proceedings or a decision related to, or one which might result in, the bringing of civil proceedings for the recovery of penalties. Pincus J (at 354) adopted a similar approach to the construction of para (f). His Honour said: "The second question in the case is whether the decisions fall within sub-par (f) and in particular within the opening expressions: "Decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of enactments...." The decisions to seize do not fit the general description of being "in connection with" the institution or conduct of any proceedings; the real argument was that they are caught by the more particular description after the word "including". Counsel for the appellants submitted that decisions to seize "may result in" the bringing of proceedings for recovery of the penalties set out in s 234(2). The words "result in" connote causation. To come within the expressions relied on, it must appear that the decisions to seize may cause the bringing of the proceedings mentioned. While it has to be conceded that the decisions to seize may form part of a causal chain which leads on to the institution of proceedings for penalties, one would not speak of the decisions to seize as in themselves bringing about that consequence." Beaumont J agreed with the reasons of Fox J and Pincus J. No mention was made, in any of the judgments, of the earlier Ricegrowers decision. In Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 ; 240 ALR 135 Bennett J was called on to determine whether the Australian Competition and Consumer Commission ("the ACCC") was required, by s 13 of the ADJR Act, to provide reasons for its decision to issue a competition notice to Telstra under s 151AKA of the Trade Practices Act . The purpose of such a notice was to give the recipient a warning that it was engaging in proscribed anti-competitive conduct. If the recipient of the notice, despite the warning, continued to engage in the conduct certain consequences might follow. These included the institution of a proceeding by the ACCC for recovery of a pecuniary penalty, actions for damages by third parties who had suffered loss or damage by reason of the anti-competitive conduct and other compensatory orders. Having referred to Ricegrowers and Murphy her Honour said (at 184) that: "There may be no correlative decision by the [ACCC] to institute pecuniary penalty proceedings ... following the issue of a Part A competition notice. Further, third parties will not necessarily issue proceedings to recover damages pursuant to ... the Act. Certainty of legal proceedings, however, is not necessary for a decision to fall within the broad terms of para (f) of Sch 2. Decisions which "relate to, or may result" in the bringing of proceedings in a civil court for the recovery of pecuniary penalties expressly are included in para (f) of Sch 2 to the ADJR Act. The issue of a Part A competition notice is a prerequisite to the bringing of proceedings in this Court for the recovery of pecuniary penalties for a contravention of the competition rule ... . The scheme of the Act expressly contemplates that such proceedings may result from the decision by the [ACCC] to issue a Part A competition notice. Were it not for the fact that such proceedings may result, the desired incentive for the carrier to cease the allegedly anti-competitive conduct would diminish significantly. Indeed, Telstra relies upon that very consequence of the decision in its submissions as to the requirements of common law procedural fairness. The [ACCC's] decision to issue the Competition Notice was a decision within the terms of para (f) to Sch 2 of the ADJR Act. It follows that the [ACCC] was not obliged by s 13(1) of the ADJR Act to furnish Telstra with a statement of reasons for its decision to issue that notice." Although her Honour was principally concerned with the nexus between a decision to issue a competition notice and proceedings which might be brought seeking the imposition of a pecuniary penalty it is to be noted that she was also satisfied that the necessary connection existed between the decision and third party proceedings which might be commenced to recover damages. Uninstructed by authority I would be disposed to hold, as Northrop J did in Ricegrowers , that the sub-paragraphs of paragraph (f) each provide for stand alone exemptions from the operation of s 13 of the ADJR Act. I am, however, bound by the majority decision in Ricegrowers and the decision in Murphy , to construe sub-paragraphs (iii) and (iv) within "the basic limits" imposed by the opening words of paragraph (f). This means that it is necessary to determine whether a decision to issue a warrant under s 130 of the Bankruptcy Act , which authorises the entry onto premises for the purpose of searching for and taking possession of property including documents, can be said to be a decision in connection with the institution or conduct of civil proceedings or a decision that relates to, or may result in, the bringing of civil proceedings for the recovery of pecuniary penalties for contravention of statutory provisions. A decision to issue a warrant permitting the search for and seizure of property (including books of a bankrupt) would not necessarily lead to the institution of civil proceedings against the bankrupt or anybody else. A decision as to whether or not such proceedings should be commenced would depend, in large part, on what was found when the seized property was examined. Nonetheless, Ricegrowers would support the conclusion that the decision to issue the warrant was covered by sub-paragraph (iii) and, possibly, sub-paragraph (iv). I say "possibly" because decisions in connection with the issue of search warrants are specifically dealt with in sub-paragraph (iii) and, although, in a loose sense, it may be said that search warrants can be used to require the production of documents, the language of sub-paragraph (iv) would, more naturally, apply to decisions to issue notices of the kind contemplated by s 155 of the Trade Practices Act and other equivalent provisions. Such notices do not authorise entry to premises for the purposes of searching for and seizing property. In Ricegrowers the majority held that paragraph (f) (iv), when read subject to the opening words of the paragraph, clearly excluded decisions to issue notices under s 155 of the Trade Practices Act from the reach of s 13 of the ADJR Act. This was so despite the fact that, at the time at which the decision to issue the notice was made, no decision had been taken as to whether civil proceedings should be instituted against the company to which the notice was directed or any other person. It is implicit in the majority judgment that it was sufficient that the notice was issued in the course of an investigation which might have led to the commencement of civil proceedings under the Trade Practices Act . The possibility was enough to bring the decision within the controlling words at the commencement of the paragraph. A decision to issue a notice which requires the production of documents and the provision of information is a step in an investigatory process which may or may not lead to the commencement of curial proceedings. The documents provided might provide evidence which might be deployed against a person in civil proceedings; on the other hand, they may prove to be of no relevance or even to be exculpatory in nature. Their significance, if any, will only be known once the notice has been executed and the documents have been examined by the authority which has issued the notice. An application under s 130 of the Bankruptcy Act can only be made if the trustee has reasonable grounds for suspecting that there exists (presumably undisclosed) property of the bankrupt, property that may be connected with or related to the bankrupt's examinable affairs or books which are relevant to those affairs. The grounds must be disclosed, on affidavit, to the Judge to whom application for the issuing of a warrant is made. They may nor may not prove to be well-founded. If property is seized, pursuant to a warrant, issued under s 130 , and it is alleged that the property is property of the bankrupt, the trustee will be entitled, under s 129 of the Bankruptcy Act , to assert an entitlement to possession of the property. If that claim is contested the trustee will be able to seek Court orders to enforce possession: see s 129(2). Paragraph (f) contemplates that decisions "in connection with the issue of search warrants" and decisions "requiring the production of documents" may be decisions in connection with the institution or conduct of proceedings in a civil court. The necessary nexus between the decision to authorise the seizure of property or documents and the institution of civil proceedings may exist where no antecedent decision has been made to commence such proceedings. No such decision may ever be made. Had the reasoning which was adopted by Pincus J (with whom Beaumont J agreed) in Murphy been applied in Ricegrowers it would have compelled a finding that a decision to issue a notice under s 155 of the Trade Practices Act was not a decision to which paragraph (f) applied. Pincus J held that, as a matter of construction, a decision to seize goods was not sufficiently connected with the institution or conduct of civil proceedings and could not, without more, result in the commencement of proceedings for a civil penalty. His Honour was influenced by the ordinary use of language. He did not consider that a decision to seize goods could be said to have occurred in connection with the institution or conduct of any proceedings. Furthermore, such decisions would not "in themselves" necessarily lead to the institution of proceedings for penalties. I do not consider that I am bound to apply Murphy . It appears that the Court in Murphy was not referred to Ricegrowers. In my view there is no relevant distinction to be drawn between a decision to issue a notice, under s 155 of the Trade Practices Act which requires the production of documents and a decision to issue a warrant under s 130 of the Bankruptcy Act which authorises the seizure of property (including documents). Both are decisions taken in order to facilitate an investigative process which has the potential to lead to the commencement of civil proceedings but which may not, necessarily, have that outcome. The same may be said of decisions to seize property, made under the Customs Act . Accordingly, in my opinion, the decision of Middleton J to issue the warrant was a decision to which paragraph (f) and, particularly, sub-paragraph (iii) applied. That being so the decision was not a decision to which s 13 of the ADJR Act applied. His Honour was not, therefore, obliged to provide reasons for his decision to issue the warrant upon receipt of the applicant's request.


case_text: Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 ; 240 ALR 135 Bennett J was called on to determine whether the Australian Competition and Consumer Commission ("the ACCC") was required, by s 13 of the ADJR Act, to provide reasons for its decision to issue a competition notice to Telstra under s 151AKA of the Trade Practices Act . The purpose of such a notice was to give the recipient a warning that it was engaging in proscribed anti-competitive conduct. If the recipient of the notice, despite the warning, continued to engage in the conduct certain consequences might follow. These included the institution of a proceeding by the ACCC for recovery of a pecuniary penalty, actions for damages by third parties who had suffered loss or damage by reason of the anti-competitive conduct and other compensatory orders. Having referred to Ricegrowers and Murphy her Honour said (at 184) that: "There may be no correlative decision by the [ACCC] to institute pecuniary penalty proceedings ... following the issue of a Part A competition notice. Further, third parties will not necessarily issue proceedings to recover damages pursuant to ... the Act. Certainty of legal proceedings, however, is not necessary for a decision to fall within the broad terms of para (f) of Sch 2. Decisions which "relate to, or may result" in the bringing of proceedings in a civil court for the recovery of pecuniary penalties expressly are included in para (f) of Sch 2 to the ADJR Act. The issue of a Part A competition notice is a prerequisite to the bringing of proceedings in this Court for the recovery of pecuniary penalties for a contravention of the competition rule ... . The scheme of the Act expressly contemplates that such proceedings may result from the decision by the [ACCC] to issue a Part A competition notice. Were it not for the fact that such proceedings may result, the desired incentive for the carrier to cease the allegedly anti-competitive conduct would diminish significantly. Indeed, Telstra relies upon that very consequence of the decision in its submissions as to the requirements of common law procedural fairness. The [ACCC's] decision to issue the Competition Notice was a decision within the terms of para (f) to Sch 2 of the ADJR Act. It follows that the [ACCC] was not obliged by s 13(1) of the ADJR Act to furnish Telstra with a statement of reasons for its decision to issue that notice." Although her Honour was principally concerned with the nexus between a decision to issue a competition notice and proceedings which might be brought seeking the imposition of a pecuniary penalty it is to be noted that she was also satisfied that the necessary connection existed between the decision and third party proceedings which might be commenced to recover damages.


case_outcome: referred to

case_text: The applicant referred the Court to Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 (a case concerning an application for security for costs) in which Weinberg J noted at 599: '... the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose.'


case_title: Mathai v Kwee [2005] FCA 932

case_text: This statement was referred to with apparent approval by Graham J in Mathai v Kwee [2005] FCA 932 at [124] . His Honour referred to tennis and golf professionals as examples of people who travel away from the place or places where they are ordinarily resident, in order to earn their incomes. Indeed, in Mathai , Graham J found that a tax consultant who had spent only two out of the preceding 20 or so years actually residing in Australian was, nonetheless, ordinarily resident here.


case_text: In Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 Lockhart J said, in a statement that is now settled law: 'I shall not attempt to give any comprehensive definition of the word "resident". It has no technical or special meaning for the purposes of the Act. Nor do the words "ordinarily resident" have any such technical or special meaning. They are ordinary English words. Whether a debtor is ordinarily resident in Australia is a question of fact and degree.' His Honour further noted at 198: 'To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word "ordinarily" connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of "ordinary residence" for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression "ordinarily resident in" connotes some habit of life, and is to be contrasted with temporary or occasional residence...' (emphasis added) 7 In Taylor, whilst Lockhart J considered that ordinary residence required a degree of regularity or permanence, his Honour also expressed the view (at 198) that a person might have more than one ordinary residence: 'A person may have two places of residence; for example, a city flat and a country house. He may regularly live in each. He cannot be physically present in both at the same time, but he may be resident (or ordinarily resident) in each at the same time. People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree. ... At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort." 9 The extracts from Vassis and Taylor above both focus on the conduct and habits of the debtors in question however, in their respective judgments, both Burchett J and Lockhart J also referred to the debtors' statements or beliefs regarding their residency. In Taylor Lockhart J placed significant reliance on outgoing and incoming passenger cards, on which the debtor had recorded that he was an Australian resident, either leaving Australia temporarily or returning from a temporary absence. Although his Honour stated (at 200) that '[o]f course, statements by persons on migration forms are not definitive of their truth', in the context of the rest of the evidence his Honour found the passenger cards persuasive. In Vassis , Burchett J also referred to a departing passenger card in which the debtor indicated that he was an Australian resident, and to the debtor's evidence that he intended to come back to Australia to live permanently after his trip to Greece. Burchett J found that the debtor was ordinarily resident in Australia throughout the two year period that he spent living in Greece.


case_text: Lockhart J's views are consistent with those expressed by Burchett J in Re Vassis; Ex parte Leung (1986) 9 FCR 518 to which his Honour referred. In Vassis, at 524 525, Burchett J made the following comment: 'The question where a person is ordinarily resident is a question of fact: ... It is obviously not to be answered, in respect of any particular time, by asking where that person was then resident . Otherwise, the word, "ordinarily" would have no meaning. But even the unqualified concept of residence is not tied to the accidents of a day; for, as Viscount Sumner said in Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 245: "One thinks of a man's settled and usual place of abode as his residence." At the same time his Lordship pointed out that "in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question". In s 43 of the Bankruptcy Act , the phrase is not "resident in Australia" but "ordinarily resident in Australia", and it expresses an alternative to "personally present ... in Australia". In such a context it must convey the former of the meanings which I have quoted from Viscount Summer's speech rather than the latter. If a man's home is in Australia, a merely temporary absence will not prevent his being ''ordinarily resident in Australia". It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia.' 9 The extracts from Vassis and Taylor above both focus on the conduct and habits of the debtors in question however, in their respective judgments, both Burchett J and Lockhart J also referred to the debtors' statements or beliefs regarding their residency. In Taylor Lockhart J placed significant reliance on outgoing and incoming passenger cards, on which the debtor had recorded that he was an Australian resident, either leaving Australia temporarily or returning from a temporary absence. Although his Honour stated (at 200) that '[o]f course, statements by persons on migration forms are not definitive of their truth', in the context of the rest of the evidence his Honour found the passenger cards persuasive. In Vassis , Burchett J also referred to a departing passenger card in which the debtor indicated that he was an Australian resident, and to the debtor's evidence that he intended to come back to Australia to live permanently after his trip to Greece. Burchett J found that the debtor was ordinarily resident in Australia throughout the two year period that he spent living in Greece.


case_title: Turner v Trevorrow (1994) 49 FCR 566

case_text: In Turner v Trevorrow (1994) 49 FCR 566 at 575 the Full Federal Court acknowledged the possibility that notwithstanding a long physical absence, a continuing link to Australia could establish that a debtor was ordinarily resident in Australia. The Court's statement of the factors that negatived a conclusion that, on the date in question, Mr Turner was ordinarily resident in Australia, is a clear indication of the factors that the Court considered relevant: 'He did not have a dwelling in Australia. He had left Australia with his family, with the intention of spending a substantial period of time - as much as five years - overseas. He was not engaged in employment which by its very nature created a link between himself and Australia notwithstanding long physical absence - such as employment by the Australian Government or an Australian company. He had, for the time being at least, severed his ties with Australia and made arrangements for the winding down (if not winding up) of the company's business affairs.' 12 Accordingly, the question for the Court in these proceedings is whether, as a matter of fact and degree, the respondent could be said to be ordinarily resident in Australia at the time when the act of bankruptcy was committed on 6 June 2005. The applicants accept that they bear the onus of establishing that, as at 6 June 2005, the respondent was ordinarily resident in Australia within the meaning of s 43(1)(b)(i) of Bankruptcy Act . 13 It is not in contention that the respondent was born in Sydney in 1962 and practised as an accountant and as a registered liquidator between 1991 and 1997. From 1998 to 2003 the respondent lived with his mother, Mrs Ailsa Lee, at Ethersey House, Sutton Forest in New South Wales. Ethersey House was purchased by Cape Vale Pty Limited, a company owned by the respondent's mother and Mr Rudi Fabian in June 1998. It was apparently sold in April 2006. In April 2004 the respondent left Australia for Scotland. The respondent purchased the lease of Dunfallandy House in Scotland in about 2004. He is no longer in possession of Dunfallandy House, apparently because the landlord claims that he has failed to pay the rent. Despite that, he persists in describing it as his 'principal residence' . The respondent presently lives in London with his partner who, he says, supports him. Mrs Lee gave evidence that he had returned on several occasions to visit her; that each visit had lasted only 3 or 4 days; and that the respondent did not have any clothes or personal belongings left in Australia. She further deposed that the respondent did not have a rental agreement with her or Cape Vale Pty Limited.


case_text: By letter dated 27 April 2005, the Tribunal invited the appellant to a hearing. He did not attend. The Tribunal was advised by the Department that the Department had lost its file and, on 20 May 2005, it wrote to the appellant inviting him to provide a copy of his application for a protection visa and any documents or information in support of his application. He did not respond to the letter. It is hard to see what more the Tribunal could have done to afford the appellant an opportunity to present his case. The Magistrate found that, in essence, the appellant's claims in his statement (which was not before the Tribunal) were fairly reproduced in the record of decision (which was before the Tribunal). This is not a case like that which was before the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 (" Applicant NAFF "). This is not a case in which the Tribunal's letter dated 20 May 2005 indicated that the Tribunal member considered that the review was not complete until certain steps were carried out and those steps were not carried out (see Applicant NAFF at [31]-[33]). The Tribunal's letter dated 20 May 2005 did not refer to a further invitation to attend a hearing, but simply invited the appellant to provide documents or information. The appellant chose not to do that. 26 I raised with the parties one further matter. I raised with the parties whether, in the circumstances, the Tribunal was entitled to proceed to make a decision on the review without, after 20 May 2005, extending another invitation to the appellant to attend a hearing. The Tribunal said: "The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and did not respond to any correspondence correctly addressed to him. In these circumstances, and pursuant to s 426A of the Act , the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it." 27 I am satisfied that the Tribunal was entitled to proceed in the manner in which it did. Under s 426A of the Act , the Tribunal could proceed to make a decision on the review, or it could take further action to allow or enable the appellant to appear before it. By writing the letter dated 20 May 2005, the Tribunal did not take further action to allow or enable the appellant to appear before it but, rather, gave the appellant the opportunity to provide documents or information. The appellant did not take up that opportunity, and the power to proceed to make a decision on the review on the basis that the appellant did not appear at a proposed hearing on 20 May 2005 remained available to the Tribunal. Alternatively, the letter from the Tribunal dated 20 May 2005 was a request by the Tribunal for additional information under s 424(2) of the Act and, on the appellant's failure to provide it, the Tribunal was entitled to proceed in the manner in which it did (s 426C and s 425(2)).


case_text: In WAGP , the Full Court of this Court discussed the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). It is not necessary for me to repeat the Court's analysis of that decision. At the time Muin was decided, the provisions of the Act (other than s 418) were in quite different terms from the provisions of the Act as they stand today. It is sufficient for me to say that a mere breach of s 418(3) of the Act by the Secretary will not vitiate the Tribunal's decision. That is not to say that a breach of the section may not in some other way result in the Tribunal committing jurisdictional error. In this case, the Tribunal gave the appellant the opportunity to remedy any deficiency (assuming for the moment that there was a deficiency) in the information before it, and it was within the appellant's power to do that. He did not take that opportunity. In any event, the important document in the Department's file which was not before the Tribunal was the appellant's statement, and the essence of the information in that statement was fairly reproduced in the record of decision which was before the Tribunal. That was the finding of the Magistrate and I see no reason to interfere with that finding. In the circumstances of this case, if there was a breach of s 418(3) of the Act , it did not lead to jurisdictional error on the part of the Tribunal.


case_text: There is no suggestion of non-compliance with subsections (1) and (2) of s 418 , so it is subsection (3) which must be considered. The Magistrate made no finding as to whether there had been a breach of the subsection. In Part B of the delegate's decision, the Department's file is referred to as evidence used in making the decision and I think that it is fair to assume that it would have been relevant to the review of the decision within the terms of subsection (3) of s 418. The circumstances under which the file was "lost" and then "found" appear not to have been the subject of evidence, and certainly the Magistrate did not make findings in relation to the issue. The Magistrate proceeded on the basis that even if the Secretary was in breach of s 418(3) that did not vitiate the Tribunal's decision and he referred to WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [48] - [67] (" WAGP "). 23 In WAGP , the Full Court of this Court discussed the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). It is not necessary for me to repeat the Court's analysis of that decision. At the time Muin was decided, the provisions of the Act (other than s 418) were in quite different terms from the provisions of the Act as they stand today. It is sufficient for me to say that a mere breach of s 418(3) of the Act by the Secretary will not vitiate the Tribunal's decision. That is not to say that a breach of the section may not in some other way result in the Tribunal committing jurisdictional error. In this case, the Tribunal gave the appellant the opportunity to remedy any deficiency (assuming for the moment that there was a deficiency) in the information before it, and it was within the appellant's power to do that. He did not take that opportunity. In any event, the important document in the Department's file which was not before the Tribunal was the appellant's statement, and the essence of the information in that statement was fairly reproduced in the record of decision which was before the Tribunal. That was the finding of the Magistrate and I see no reason to interfere with that finding. In the circumstances of this case, if there was a breach of s 418(3) of the Act , it did not lead to jurisdictional error on the part of the Tribunal.


case_text: In my view I do have power to make the order sought by WCNI. The power is to be found in s 43 of the Federal Court of Australia Act 1976 (Cth). In DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251 at [14] , Allsop J said that s 43 is a broad and ample power, which is not to be read down otherwise than by judicial principle conformable with its amplitude. His Honour's remarks were made in a different context, but I consider that they are applicable to the present application. 9 It seems to me that what is necessary for the exercise of the power is to find some connection between the Supreme Court proceeding and the proceeding in this Court, in order to justify the order for payment of the supporting creditor's costs, including the costs of commencing in the Supreme Court, out of the process of the winding-up. 10 The course which has been followed by WCNI, in coming to this Court as the supporting creditor, is the cheapest and most expedient course which could have been followed. In my view this step has rationalised the processes before this Court and has, indeed, rationalised both sets of proceedings, in a way which produces the most convenient and expeditious result in terms of costs incurred in the Court's processes. 12 In my view the order which is sought, therefore, falls within the broad power to which Allsop J referred in considering the amplitude of s 43 of the Federal Court Act . It follows that I propose to accede to the application made to me by Mr Davis of counsel for WCNI. 13 Mr Davis's instructing solicitor is in Court and he has informed me that when the Supreme Court proceedings are returnable on 6 March, an order will be sought that the proceedings be dismissed, with no order as to costs. Plainly, the Supreme Court could not now entertain the application to wind-up the company, because I will make a winding-up order this afternoon and in light of the course proposed today, the obvious approach in the Supreme Court is that there be no order as to costs sought in that matter. Mr Davis's instructing solicitor has undertaken to the Court to seek those orders in the Supreme Court on 6 March 2008. 14 Accordingly, the orders that I will make this afternoon are as set out in [1] to [3] of the originating process filed by the Deputy Commissioner of Taxation on 24 January 2008. I will also order that the costs of WCNI, as supporting creditor, be paid out of the assets of the defendant, and in particular that those costs include the costs of WCNI of and incidental to proceedings No. 1199 of 2008 in the Supreme Court of New South Wales, Equity Division. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 10 March 2008 Solicitor for the Plaintiff: Church & Grace The Defendant did not appear. Counsel for the Supporting Creditor: Mr A Davis Solicitor for the Supporting Creditor: Jones King Lawyers Date of Hearing: 29 February 2008 Date of Judgment: 29 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/202.html


case_text: In proceeding V 74 of 1999, Mr Spalla contested the appointment of Messrs Beck and Home as receivers and managers of the property of Irlmond and APS. Finkelstein J held that their appointment was lawful: see Spalla v St George Wholesale Finance Pty Ltd [1999] FCA 513 (" Spalla (No 1) "). In his reasons, his Honour addressed the question of whether Irlmond and APS were insolvent at the time receivers were appointed. Mr Spalla contended that the companies were not insolvent at that time. His Honour held, however, that "the fact that the companies were insolvent is an inescapable conclusion from the evidence": see Spalla (No 1) at [140]. 8 Mr Spalla appealed against the decision of Finkelstein J to the Full Court. The Full Court, which was constituted by Heerey, Sundberg and Weinberg JJ, upheld his Honour's decision: see Spalla v St George Wholesale Finance Pty Ltd [1999] FCA 1566 (" Spalla (No 2) "). The Full Court held, amongst other things, that the primary judge was correct to find that Irlmond and APS were insolvent at the time receivers were appointed: see Spalla (No 2) at [61]-[70]. 9 In proceeding V 7877 of 1999, St George Wholesale Finance unsuccessfully petitioned for a sequestration order against Mr Spalla based on an alleged failure to comply with a bankruptcy notice. The notice claimed that Mr Spalla owed a debt pursuant to the judgment obtained in proceeding V 74 of 1999 before Finkelstein J. Mr Spalla contested the sum specified. In St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094 at [40] - [41] , Heerey J concluded that "St George is not sure itself what is really owing under the judgment" and that "this proceeding amounts to an abuse of the procedures provided by the Act". 27 The primary proceeding began on 17 October 2002, when Still & Co filed the original application and statement of claim on behalf of the then applicants. Those applicants were Mr Spalla and his wife, Stella, Mr Still, and Anstella Nominees Pty Ltd ("Anstella") as the holder of all shares in Irlmond and APS. Irlmond was not one of the original parties to the primary proceeding. The original respondents included St George Motor Finance, St George Wholesale Finance, Messrs Beck and Home, and Deloittes. By their original statement of claim, the applicants alleged that the respondents had given false evidence in the proceeding before Finkelstein J and raised various claims relating to the receivership of Irlmond and APS. The applicants also claimed that the respondents had conspired wrongly to subject Mr Spalla and Mr Still to criminal conspiracy charges. 28 Prior to May 2003, Mr Rambaldi retained the firm of Darrer Muir Fleiter to advise him with respect to the primary proceeding and, in particular, as to Irlmond's prospects if it were to join in the proceeding. On 22 November 2002, Mr Rambaldi sought quotations for insurance litigation funding. In a facsimile dated 3 February 2003, Mr Rambaldi's solicitors subsequently wrote to Mr Spalla's solicitors stating that, as liquidator of Irlmond, Mr Rambaldi was not in a position to join in the primary proceeding, or institute his own proceeding, until he had entered into an acceptable funding arrangement, although Mr Rambaldi had "his own legal advice that various claims against the Respondents, or a combination of them are likely to be successful". 29 Throughout February and March 2003, Mr Rambaldi, assisted by Mr Vasudevan negotiated with IMF (Australia) Ltd ("IMF"), represented by Mr Clive Bowman, to secure litigation funding and, in particular, concerning the terms of a litigation funding agreement, which Mr Rambaldi required before agreeing to Irlmond becoming an applicant in the primary proceeding. The contemporaneous correspondence shows that control of the litigation was an important issue. By a letter dated 6 March 2003, IMF specifically noted that it wanted to avoid "Spalla attempting to block, or interfere with, a settlement which Irlmond wishes to pursue". It reiterated this concern in an email of 29 April 2003. Ultimately, a funding agreement was reached with Insolvency Litigation Fund Pty Ltd ("ILF"), a wholly owned subsidiary of IMF. Before concluding the funding agreement, Mr Spalla retained the services of Mr Borden to act on his behalf in place of Still & Co. 32 At the hearing of the motion on 8 May 2003, Finkelstein J allowed Mr Iain Jones, as counsel for two of the St George parties in their capacity as creditors of Irlmond, to appear and make submissions. Mr Jones argued that the agreement, as then drafted, improperly limited the liquidator's discretion to settle claims on behalf of Irlmond. Mr Jones noted that clauses 13 and 14 of the proposed funding agreement allowed the Spalla Interests to object to the liquidator accepting a settlement offer made only to Irlmond and, in the event of such an objection, delegated to an arbitrator the decision whether to accept such an offer. Mr Jones claimed that this arrangement was an unlawful restraint on the liquidator's discretion. His Honour said that it appeared that Mr Jones was correct on this point. Mr Jones also argued that the proposed funding agreement which allowed ILF to withdraw at any time on seven days' notice but still take part in a distribution of any recovery gave ILF a potential windfall if it withdrew shortly after executing the agreement. 33 After the hearing of 8 May 2006, the parties to the proposed funding agreement negotiated further, in order to amend it so as to meet the concerns expressed by Finkelstein J. In particular, as part of these further negotiations, the parties considered the issue of control over any settlement offer to Irlmond and the issue of ILF getting a 'windfall' if it withdrew its indemnity shortly after executing the agreement. They prepared a new draft funding agreement. On 12 May 2003, Mr Rambaldi filed this new draft in the Court, together with counsel's supplementary submission in support of the new agreement. 34 This supplementary submission stated that the amendments to the proposed funding agreement "address the criticisms made by Mr Jones". It continued: "The effect of the amendments is to: (a) remove any restriction on the power of the liquidator to accept a settlement offer made to the company. No limitations are imposed upon the liquidator at all in this regard; (b) in the event that ILF terminates its indemnity pursuant to clause 6.2, to restrict the entitlement of ILF to the "Recovery" to simply a reimbursement of monies it has paid pursuant to clause 6.2." 35 The new agreement deleted the former clauses 13 and 14 from the earlier draft. Clause 9, relating to control of the proceedings, was unchanged except "clause 14" was substituted for the words "clause 13" in clause 9.3. A new clause 13 dealt with "Recoveries". A new clause 14 relevantly read: "14. DISPUTE RESOLUTION PROCEDURE 14.1 If at any time, a dispute or difference arises in connection with this Agreement and that dispute or difference has not been able to be resolved by negotiations between the parties then a party may provide the other parties with a written notice addressed to the other parties outlining the dispute or difference, and if capable of remedy, requiring remedy on the expiry of 3 Business Days from receipt of the written notice. 14.2 If the dispute or difference communicated to the other parties by written notice is not remedied or is not capable of remedy, then the parties agree to submit to mediation prior to the institution of Court proceedings utilising the following procedure:- (a) The parties shall jointly appoint a mediator. If the parties cannot agree on a mediator within 2 Business Days of receipt of the written notice by the other parties, the parties agree that any one or more of the parties may request the President for the time being of the Law Institute of Victoria to nominate a mediator. (b) The costs and expenses plus any GST payable to the mediator and the costs and expenses of the mediation shall be paid by Anstella. (c) If a settlement is reached at the mediation, written terms of settlement shall be entered into immediately upon conclusion of the mediation and shall, unless Court approval of the terms of settlement is required, override the terms and conditions of this Agreement. ..."


case_text: Mr Spalla appealed against the decision of Finkelstein J to the Full Court. The Full Court, which was constituted by Heerey, Sundberg and Weinberg JJ, upheld his Honour's decision: see Spalla v St George Wholesale Finance Pty Ltd [1999] FCA 1566 (" Spalla (No 2) "). The Full Court held, amongst other things, that the primary judge was correct to find that Irlmond and APS were insolvent at the time receivers were appointed: see Spalla (No 2) at [61]-[70].


case_text: In proceeding V 7877 of 1999, St George Wholesale Finance unsuccessfully petitioned for a sequestration order against Mr Spalla based on an alleged failure to comply with a bankruptcy notice. The notice claimed that Mr Spalla owed a debt pursuant to the judgment obtained in proceeding V 74 of 1999 before Finkelstein J. Mr Spalla contested the sum specified. In St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094 at [40] - [41] , Heerey J concluded that "St George is not sure itself what is really owing under the judgment" and that "this proceeding amounts to an abuse of the procedures provided by the Act".