case_text: is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court. Further, in Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as " administrative in character ". His Honour nonetheless followed Bizuneh [2003] FCAFC 42 ; 128 FCR 353 as he regarded himself as being bound by the decision. At [40], his Honour said: It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts . Had the reasoning in Letts been followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal. I too am bound by the reasoning in Bizuneh [2003] FCAFC 42 ; 128 FCR 353. If a direction by a Judge to a Registrar is an administrative decision and not a judicial decision, it follows that the decision by a Registrar taken on his or her own initiative pursuant to O 46 r 7A(1) is a fortiori a decision of an administrative character. Quite apart from the fact that the reasoning in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 is binding upon me, I would have thought that a decision of the latter kind made by a Registrar on his or her own initiative is clearly a decision of an administrative character. For these reasons, I am of the opinion that the Registrar's decision was a decision of an administrative character and is thus susceptible to judicial review under the ADJR Act. In O 1 r 4 of the Federal Court Rules , Registrar is defined, for the purposes of those Rules, as: ... the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place.


case_outcome: cited

case_title: Gunter v Doogan [1999] FCA 1648

case_text: body of authority has developed notwithstanding the fact that an earlier Full Court assumed, without deciding, that a direction given by a Judge to a Registrar pursuant to O 46 r 7A was a " judgment, decree or order " of the Court (see Gunter v Doogan [1999] FCA 1648 at [12] , [14], [18] and [19]).


case_text: is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court.


case_title: Letts v Commonwealth (1985) 8 FCR 585

case_text: Letts v Commonwealth (1985) 8 FCR 585 , Toohey J (when sitting as a Judge of this Court) held that a decision made by the Registrar of the High Court to seek a direction from a Justice of the High Court pursuant to O 58 r 4(3) of the High Court Rules as to whether the Registrar should decline to accept a document for filing because it was an abuse of the process of the Court or a frivolous or vexatious proceeding, was not a decision of an administrative character. At 587 of the report, Toohey J said: The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was ... part of the organisation through which the powers and jurisdiction of the court were exercised ...": see Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13 ; (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission of Western Australia v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court. Letts 8 FCR 585 was a very different case from the present. In Letts , the decision of the Registrar under challenge was a decision to refer a matter to a Justice of the High Court viz whether the Justice should direct the Registrar not to accept a document. The present case involves a decision made by the Deputy District Registrar not to accept the proposed Notice of Appeal. There was no attempt to involve a Judge of this Court in the relevant decision-making in the present case. Furthermore, Letts 8 FCR 585 concerned an application in this Court under the ADJR Act for judicial review of a decision of the Registrar of the High Court—a very different subject matter from the subject matter of the present case. In Letts 8 FCR 585 at 587 588, Toohey J said: If I was of the opinion that the action of the Registrar constituted an administrative decision made under an enactment and thus susceptible of review under the Judicial Review Act, I would nevertheless refuse to grant the application for review. Adequate provision is made by the High Court Rules for a justice of that Court to determine whether or not the Registrar shall issue the process in question. In those circumstances it would be quite inappropriate for a judge of this Court to determine what is in essence that very matter. The judicial review in this Court of a decision by a Registrar of this Court to refuse to accept a document for filing is a very different thing from the judicial review in this Court of a decision of the Registrar of the High Court to seek a direction from a Justice of that Court. Further, in Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as " administrative in character ". His Honour nonetheless followed Bizuneh [2003] FCAFC 42 ; 128 FCR 353 as he regarded himself as being bound by the decision. At [40], his Honour said: It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts . Had the reasoning in Letts been followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal.


case_outcome: applied

case_text: is a great deal to be said for the arguments advanced by Counsel for the first respondent in support of the proposition that the Registrar's decision was plainly correct. But the first respondent does not need to go that far. The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing " on its face " is " an abuse of the process of the Court or is frivolous or vexatious " (the words are " if the document appears to the Registrar ... to be ...") (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision. In the present case, there is no evidence upon which I could, let alone should, make a finding that the second respondent did not actually and honestly form the opinion which she expressed in her letter to the applicant dated 7 July 2009. The terms of the proposed Notice of Appeal itself provide a reasonable basis for the formation of that opinion. It may be that the expression on its face when used in O 46 r 7A allows the Registrar to consider other documents in addition to the document which is submitted for filing, if it is necessary to do so in order to make sense of that document. In the present case, there is no evidence to suggest that the second respondent did more than look at the proposed Notice of Appeal. In those circumstances, I do not need to determine the wider question. It was submitted on behalf of the first respondent that I have power to review the Registrar's decision pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth) ( the Act ). Section 35A(1) of the Act provides that certain powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar. Those powers are set out in subpars (a) to (h) of s 35A(1). Section 35A(5) and s 35A(6) are in the following terms: 35A Powers of Registrars ... (5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. (6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised. The power to reject a document presented for filing given to the Registrar under O 46 r 7A(1) is not a power of the Court within the meaning of that expression in s 35A(1) of the Act. It is a power given to the Registrar directly by the Federal Court Rules . Section 35A is intended to deal with powers of the Court other than powers already specifically given to the Registrar under the Rules. Furthermore, even if it were such a power, it does not fall within the specific powers referred to in s 35A(1)(a) to (h) of the Act. Finally, in this case, the second respondent did not act as she did pursuant to a direction from a Judge. For s 35A(1) to be engaged, there must first be a direction given by the Court or a Judge. For these reasons, the Registrar's decision was not a decision made in the exercise of a power of the kind referred to in s 35A(1) of the Act. For that reason, the Registrar's decision cannot be reviewed under that section because, under subs (5) and (6) of s 35A of the Act, only an exercise of power pursuant to s 35A is reviewable under those subsections. For these reasons, I reject the argument of the first respondent that I can review the Registrar's decision pursuant to s 35A(6) of the Act. The rejection of the first respondent's s 35A argument necessarily carries with it the rejection of the further argument put by the first respondent that, because the decision can be reviewed under s 35A(6) of the Act, I should refuse relief to the applicant under the ADJR Act on discretionary grounds, that is to say, I should refuse relief because he has a perfectly adequate alternative avenue available to him whereby he can redress the wrong about which he complains.


case_text: in Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as " administrative in character ". His Honour nonetheless followed Bizuneh [2003] FCAFC 42 ; 128 FCR 353 as he regarded himself as being bound by the decision. At [40], his Honour said: It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts . Had the reasoning in Letts been followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal. In Paramasivam [2005] FCA 369 at [43] ff, Sackville J considered whether the proceedings brought by the applicant in the case before him should be summarily dismissed. At [46] [47], his Honour said: FCR, O 46 r 7A, confers on the Registrar certain powers if he or she forms a particular opinion. The requisite opinion is that a document presented to a Registry on its face is an abuse of the Court's process or is frivolous or vexatious. If the Registrar forms that opinion, he or she may, without more, refuse to accept or issue the document. Alternatively, the Registrar may seek the direction of a Judge. Although r 7A does not expressly say so, it is clearly intended that the Registrar must act in conformity with the Judge's direction. The Registrar's power to seek the direction of a Judge is thus conditional on the Registrar forming the opinion that the relevant document on its face is an abuse of the process of the Court or is frivolous or vexatious. It would seem to follow that if an applicant can establish that a Registrar who sought the direction of a Judge in relation to a document presented to the Registry: • did not form the requisite opinion; or although forming an opinion that the document was an abuse of process, did so after taking into account matters other than the contents of the document itself, it is at least arguable that the Registrar's decision to seek the direction is amenable to judicial review under the ADJR Act . In the first case, the Registrar's decision would not seem to have been authorised by the relevant enactment (that is, the FCR ) and thus the applicant could invoke s 5(1)(d) of the ADJR Act (providing a ground of review where the decision was not authorised by the enactment). In the second case an irrelevant consideration would have been taken into account and thus the applicant could invoke s 5(1)(e) of the ADJR Act (see s 5(2)(a)). (Original emphasis) In Paramasivam [2005] FCA 369 , Sackville J noted that, at the same time as the Registrar sent the memorandum to the Duty Judge requesting a direction pursuant to O 46 r 7A, the Registrar sent a further memorandum which set out some of the applicant's litigious history. Sackville J took the view that the existence of this accompanying memorandum which set out some of the applicant's litigious history was a sufficient basis to allow the proceedings to go to trial because it may have supported an ultimate contention on the part of the applicant that the Registrar had taken into account an irrelevant consideration, namely, that the applicant's litigious history was a matter to which regard might be had in forming the requisite opinion under O 46 r 7A. In the course of his Reasons for Judgment in Paramasivam [2005] FCA 369 , Sackville J discussed the meaning of the expression on its face when used in O 46 r 7A. At [45], his Honour said: The expression 'on the face', according to Butterworths Australian Legal Dictionary refers to 'the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation'. There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person's litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document 'on its face'. In the present case, there is no evidence to suggest that the second respondent formed the opinion which she did by reference to anything other than the proposed Notice of Appeal. Indeed, Counsel for the first respondent made detailed submissions designed to demonstrate that the proposed Notice of Appeal was, on its face, clearly an abuse of the process of the Court. Those submissions were based solely on the terms of the proposed Notice of Appeal. She submitted that the grounds of appeal were largely incomprehensible. Counsel also submitted that the pejorative terms " duress "; " suffering natural justice "; " apprehended bias "; " undue influence "; and " favouritism " were all bandied about in the proposed Notice of Appeal without any proper foundation. In the proposed Notice of Appeal, the applicant also sought to incorporate oral arguments made before the Federal Magistrate in an entirely impermissible way.


case_outcome: followed

case_text: The appellant argued two grounds on appeal as to why the tribunal committed a jurisdictional error. Each is related. The first is that the tribunal failed to ask whether the appellant's cessation of his political activities, and his failure to express interest in further involvement in them, was a consequence of the persecutory treatment which the tribunal found he had suffered. This ground is based on the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 7 The second ground is that the tribunal failed to consider whether the appellant had a well-founded fear of persecution, having regard to his individual circumstances, characteristics and history, because it was necessary for him to be inactive politically in China in order to avoid persecution. 8 In essence, the tribunal accepted all the appellant's claims of what had happened to him as being truthful. The trial judge found that no evidence was ever given to the tribunal corroborating any part of the appellant's original claims ( SZHBP [2007] FMCA 511 at [5] ). However, his Honour was incorrect. The tribunal found that at the hearing the appellant '... essentially repeated the claims he provided to the Department'. Those claims had been made in a statutory declaration which accompanied the appellant's claim for a protection visa. It is necessary to set out the claims in a little more detail than the summary I have already given. Since the tribunal accepted them, I have treated the claims as facts found by it. 9 The appellant was a self-employed truck driver engaged in transportation jobs in China. He had given one of his friends a job of transporting some building materials. In the course of executing that job the friend's small truck fell into a ravine when he was overtaken illegally by another truck. The appellant's friend survived the accident but was paralysed permanently. The friend was married with a small child and aged parents. Following the accident the friend was no longer able to support his family. The driver at fault did not have a driver's licence but his father was a senior and powerful government official in one of the Chinese provinces. The official used his position in government to protect his son from punishment and from having any obligation to pay compensation to the appellant's friend. 10 The appellant said that he could not keep silent about this state of affairs because he felt a sense of responsibility, having transferred the job to his friend. Between July to October 2003, the appellant engaged in a number of activities to seek redress for his friend. First, the appellant approached lawyers for legal assistance, but none wished to help him bring a case against a prominent government official's family. Secondly, the appellant contacted the local court seeking to sue the driver at fault together with his father. But the court refused to accept the application on the basis that the appellant was not qualified to bring it. The third action the appellant took was to gather a petition with some self-employed drivers, including his friend's relatives and friends. He sent the petition to the local, and then provincial, governments. The governmental response to the petition was to say that the public security bureau (PSB) had already made a fair decision not to take any action against the driver at fault. 21 The Minister argued that the tribunal correctly addressed the fundamental question: namely, whether the appellant had a well founded fear of persecution for a Convention reason. He said that the principle in Appellant S395 216 CLR 473 was that the tribunal's function was to make that fact-specific inquiry in respect of the appellant's articulated claims, relying on Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 39 [162] per Hayne and Heydon JJ; see also 3-4 [8]-[11] per Gleeson CJ, 8-10 [27]-[31] per McHugh J, 16 [55] per Kirby J. He argued that once the tribunal addressed that inquiry it did not need to go further. 22 The Minister also argued that the tribunal's reasons exhaustively considered the appellant's actual claims. He said that the tribunal was not required to consider whether the persecutory conduct it found may have induced the appellant to drop his protest or to give up a wish to involve himself in political activity. Rather, the Minister submitted, the tribunal properly addressed all the claims which the appellant had actually made. 25 In Appellant [2003] HCA 71 ; S395 216 CLR 473, the tribunal concluded that because the appellants had lived together in Bangladesh for over 4 years without experiencing any more than minor problems with anyone outside their own families, they had conducted themselves in a discrete manner. It found that there was no reason that they would not continue to do so if they were returned to Bangladesh. Accordingly, the tribunal concluded that the persecutory behaviour of Bangladeshi society towards homosexuals did not give rise to a well-founded fear of persecution because the applicants in that case would live there discretely. 26 The majority of the High Court held that this approach constituted a jurisdictional error. McHugh and Kirby JJ noted there that the applicants had not raised any issue of modifying their behaviour because they feared persecution. However, their Honours said ( Appellant S395 216 CLR at 489 [39]): ' ... it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did. If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution.' (Emphasis added.) Their Honours answered affirmatively the hypothesis they posed, concluding that the tribunal had erred in law. They said ( Appellant S395 216 CLR at 490-491 [43]): 'The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.' (Their Honours' emphasis.) 27 I am of opinion that the tribunal's reasons disclose a jurisdictional error. The tribunal was required by s 425(1) of the Act to identify 'the issues arising in relation to the decision under review'. The Act assumes that issues can be identified as arising in relation to the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [33] - [34] , 601 [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The tribunal failed to enquire whether the appellant's lack of political involvement and interest after his release from detention in 2003 occurred as a consequence of the persecutory conduct he had suffered. (cf: Appellant S395 216 CLR at 493 [51] per McHugh and Kirby JJ). 28 The tribunal determined the issue of whether the appellant had a well-founded fear of persecution if he returned to China on the basis that he no longer wished to express political opinion. But in doing so it did not address why he no longer wished to exercise this fundamental right. Nor did it address whether the appellant's current position had been affected by the past conduct of the Chinese authorities towards him. Just as McHugh and Kirby JJ had held in Appellant S395 216 CLR at 489 [39], despite the fact that the appellant here did not raise explicitly any issue that he had modified his behaviour because of his fear of persecution, I am of opinion that it is highly likely that he did so. 29 The tribunal's findings of the harm which the appellant had suffered were that he had been jailed, tortured, made to sign a confession and he had then spent the next six months being harassed by the authorities until he had to flee here. The harassment continued to occur even when he had ceased expressing his opinions. The tribunal did not ask what effect that harm and the threat of its repetition in the future had on the appellant. In particular it did not consider why he had lost interest in expressing his political opinions. It is difficult to think that a person who had organised a sustained public campaign to achieve justice for his paralysed friend had lost all interest in the pursuit of that end independently of any connection to his arrest on the day of the final protest and his subjection to persecutory conduct for the next nine months. 30 The tribunal did not address whether the modification in the appellant's desire to pursue his political activity of seeking justice for his friend had been influenced by the actual harm that he had suffered and the threat of its continuation. Even in jail, for a time, he resisted making a confession until, as the tribunal found, he could no longer bear his mistreatment. That is not insignificant in the scheme of a proper consideration of whether his fear was well-founded. As McHugh and Kirby JJ said in Appellant S395 216 CLR at 489 [40]: '... persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors.' 31 Given that the tribunal had accepted the appellant's claims of mistreatment by the authorities directly caused by his political activity, the tribunal had to ask itself the question why, after experiencing that persecutory conduct, had he ceased to pursue or be interested in further political activity. Here, the tribunal should have asked the question why the appellant no longer wished to raise the political opinion which he had previously expressed. Gummow and Hayne JJ said in Appellant S395 216 CLR at 503 [88] that the tribunal there, as here, did not ask why the appellant would live 'discreetly'. Gummow and Hayne JJ said of the tribunal: 'It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.' 32 Similarly here, the real question for the tribunal was what caused the appellant's change of heart. As McHugh and Kirby JJ had said, it is fallacious to assume that a person's conduct is uninfluenced by the conduct of the persecutor and that the only relevant persecutory conduct is actual harm that will be inflicted in the future. They emphasised that the threat of harm is relevant to the consideration of a claim such as the present ( Appellant S395 216 CLR at 490 [43]). 33 The tribunal should have addressed whether the appellant had changed or modified his interest in seeking justice for his friend or protesting against the government's conduct because of the persecutory consequences which the tribunal had found the appellant had actually suffered. This was relevant to whether the threat of further persecution gave rise to a well-founded fear in the appellant that he would be persecuted for reasons of political opinion on his return to China if he felt himself free to or did express the opinions he had previously expressed. 34 The tribunal simply assumed that the appellant's apparent disinterest in continuing to express the opinion which led to his arrest and mistreatment would mean he would not be at risk of further harm for a Convention reason. In ordinary aspects of human life, where people suffer a severe consequence for particular conduct, they do not usually repeat the conduct. One of the matters which courts take into account in sentencing offenders is deterrence; that is, the effects which the sentence or punishment inflicted is likely to have on the offender's propensity to re-offend and on others who, seeing or learning of the sentence, may assess their chance of suffering a similar fate as condign punishment. The aphorism, 'once bitten twice shy' has an obvious application to an experience of the kind the tribunal found the appellant to have had. 38 In Appellant S395 216 CLR at 491-492 [48] McHugh and Kirby JJ described Win [2001] FCA 132 as recognising that it was no answer to a claim for refugee status that the applicant took steps to hide political opinions and activities where the applicant claimed he or she would be persecuted for those opinions and activities. 42 But as McHugh and Kirby JJ emphasised in Appellant S395 216 CLR at 490-491 [43], to determine the issue of real chance without determining whether the applicant's modified conduct was influenced by the threat of harm '... is to fail to consider that issue properly'. 44 But here, the facts which the appellant claimed had occurred to him required the tribunal to consider what would occur in the future if he were to return to China. The tribunal erred because it limited its consideration of this question too narrowly. It failed to ask itself whether its findings as to what had happened to the appellant in China indicated that his lack of political activity, after he eventually signed his confession, was because he feared that expressing his opinions would subject him to further persecution. The tribunal's failure to enquire into this question was a constructive failure to exercise its jurisdiction: Appellant S395 216 CLR at 493-494 [53] [54] per McHugh and Kirby JJ, 503 [88] per Gummow and Hayne JJ. 45 Gummow and Hayne JJ said, in Appellant S395 216 CLR at 503 [88], that the tribunal there had been diverted from addressing the fundamental question of whether there was a well-founded fear of persecution because it had only considered whether the applicants were likely to live as a homosexual couple in a way that would not attract adverse attention. They held that the tribunal should have asked the fundamental question whether the applicants would live 'discreetly' '... because that was the way in which they would hope to avoid persecution'. They held that the tribunal there either did not apply correctly the law to the facts it found or its decision involved an incorrect interpretation of the law: Appellant S395 216 CLR at 503 [89]. Here, the fundamental question was whether the appellant had a well-founded fear of persecution in circumstances where the tribunal had found as a fact that he had been severely mistreated for Convention reasons. The tribunal needed to address, in light of its finding, whether he would have feared in the future to express his political opinions, or abstained from doing so, were he returned to China because in that way he would hope to avoid persecution. 46 As I have found, the original claim for a protection visa raised such a claim sufficiently for the purpose of requiring the tribunal to consider it. The appellant's disinterest in political expression after 2003 is highly likely to have arisen because of his well-founded fear of expressing any further political opinion based on his persecution in 2003, which the tribunal found he had suffered for having expressed it. 47 The tribunal was obliged to consider the appellant's claim for a protection visa by asking whether the appellant's disinterest in expressing his political opinion, since being forced to sign his confession in late 2003, was a way in which he hoped to avoid persecution. The tribunal committed a jurisdictional error by failing to do so.


case_outcome: distinguished

case_text: The Minister argued that the tribunal had found that the Chinese authorities were only interested in individuals who were politically active or suspected of being so. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that a determination whether there was a real chance that something would occur required an estimation of the likelihood that one or more events would give rise to the occurrence of that thing. They said that in many, if not most cases, determining what was likely to occur in the future would require findings as to what had occurred in the past because what had occurred in the past was likely to be the most reliable guide as to what would happen in the future. And, they said that without making findings about the policies of the Chinese government's authorities, in that case, and the past relationship of Mr Guo with those authorities, '... the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC'. 24 Of course, in Guo 191 CLR 557 at 568-569 the tribunal had found that a considerable number of the applicant's claims were not credible and only accepted one of them, on the basis of which it made its assessments. There the tribunal found that Mr Guo had not had any political profile attributed to him by the Chinese authorities, and accordingly he had no well-founded fear of persecution for a Convention reason ( Guo 191 CLR at 569). In the present case, the tribunal made clear findings about what happened to the appellant, his actual political profile, and the conduct and the policies of the Chinese authorities.


case_text: The Minister then argued that the appellant never put a claim to the tribunal that he wished to be active in the future but feared to do so. He argued that the tribunal was bound to consider only the claims raised by the appellant in the material before it. He said that a claim had to be a substantial, clearly articulated argument relying upon established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 17-22 [55] - [68] , especially at 22 [68] per Black CJ, French and Selway JJ. The Minister argued that the tribunal was not bound to consider an hypothesis that had not been raised by an applicant for review, citing Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 at 593 [46] - [47] where Weinberg, Jacobson and Lander JJ applied Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at 457 [31] - [32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. The circumstances in SZANS 141 FCR at 593 [43]-[45] involved a situation in which the Full Court observed that it was difficult to see how the applicant there had raised before the tribunal the subjective fear of persecution on which he sought to rely in challenging the decision to refuse him a protection visa.


case_text: The Minister argued that in order to establish a jurisdictional error by the tribunal it was necessary for the appellant to have expressly raised a claim that if returned to China he would continue to express his political opinion. He argued that because the appellant had not made this claim before the tribunal, he was precluded from doing so here. The Minister relied on NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 at [19] - [20] per Madgwick J, with whom Merkel and Conti JJ agreed. He argued that there had to be some evidence to establish that the appellant would seek to exercise his right to express political opinion if he were returned to China. Madgwick J identified the denial of a person's freedom to express his or her opinion, which the person aspires to express, as a serious affront to his or her human dignity were the person returned to his or her homeland, based on the test that he had earlier formulated in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] . However, in NAEU [2002] FCAFC 259 there was no evidence to suggest that the applicant for a protection visa would wish to assert his opposition to the conduct he claimed to be offensive were he returned to Sri Lanka, nor that his conscience would seriously be affronted if he felt unable to do so ( NAEU [2002] FCAFC 259 at [20] ).


case_outcome: discussed

case_text: The Minister argued that the tribunal's approach was consistent with that held to be correct in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 438-439 [75] . There Young J, (with whom Gyles and Stone JJ agreed) said that the factual inquiry which the tribunal had to undertake was to be done by reference to an applicant's individual circumstances. However, for the reasons that I have given, that is the error which the tribunal made in this case. It failed to look at the circumstances of the appellant's claim concerning his treatment in China, which it found had occurred. After making that finding, the tribunal needed to consider whether the appellant had a well-founded fear of persecution by reason of his political opinions and whether he would fear to express them, were he returned to China.


case_outcome: referred to

case_text: The Minister argued that in order to establish a jurisdictional error by the tribunal it was necessary for the appellant to have expressly raised a claim that if returned to China he would continue to express his political opinion. He argued that because the appellant had not made this claim before the tribunal, he was precluded from doing so here. The Minister relied on NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 at [19] - [20] per Madgwick J, with whom Merkel and Conti JJ agreed. He argued that there had to be some evidence to establish that the appellant would seek to exercise his right to express political opinion if he were returned to China. Madgwick J identified the denial of a person's freedom to express his or her opinion, which the person aspires to express, as a serious affront to his or her human dignity were the person returned to his or her homeland, based on the test that he had earlier formulated in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] . However, in NAEU [2002] FCAFC 259 there was no evidence to suggest that the applicant for a protection visa would wish to assert his opposition to the conduct he claimed to be offensive were he returned to Sri Lanka, nor that his conscience would seriously be affronted if he felt unable to do so ( NAEU [2002] FCAFC 259 at [20] ). 38 In Appellant S395 216 CLR at 491-492 [48] McHugh and Kirby JJ described Win [2001] FCA 132 as recognising that it was no answer to a claim for refugee status that the applicant took steps to hide political opinions and activities where the applicant claimed he or she would be persecuted for those opinions and activities.


case_text: Lelleton nonetheless contends that he satisfied the requirements of s 54(1)(a) of the Act by posting the Statement of Affairs to the Registrar in Bankruptcy. He relied on the decision of Kenny J in Trihakis v Official Receiver (Vic) [1999] FCA 1426. Her Honour there held that a Statement of Affairs could be filed by posting a completed original statement to the Registrar. In that case a declaration of the kind presently sought was granted in circumstances in which her Honour was satisfied that a Statement of Affairs had been posted but, for some undisclosed reason, could not be found on the Registrar's file. I am satisfied, on the balance of probabilities, that Mr Lelleton posted his Statement of Affairs to the Registrar as he claims, on or about 19 April 1995. I am so satisfied for a number of reasons. Mr Lelleton has sworn that he posted the document. He retained a copy of it. The copied form appears in a format that was in use in 1995 but is not presently in use. It is dated April 1995. It is inherently unlikely that Mr Lelleton would have attempted to reconstruct such a form so long after the event. It is also inherently unlikely that, having gone to the trouble of completing a long form in a timely way, he would not have attempted to comply with the obligation which Mr White had brought to his attention by posting it from Sydney to the Registrar. At all relevant times s 149(4) of the Act provided: "(4) If the bankrupt becomes a bankrupt after the commencement of s 27 of the Bankruptcy Amendment Act 1991 , the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs." It is to be noted that the three year period runs from the date on which the Statement of Affairs was filed. It does not run from the date on which the Trustee is provided with a copy of the Statement. Mr Lelleton's failure to provide a copy of the Statement to Mr White in 1995 can, therefore, have no bearing on the determination of the date of his discharge from bankruptcy. The relevant date is the date of filing. In Trihakis , Kenny J fixed the date of filing as a day that was three days after the Statement of Affairs was signed in order to allow for any delay in posting and delivery. Given that the Statement in the present proceeding was despatched from Sydney on 19 April 1995, I consider that an allowance of two business days should be made such that the date of filing should be fixed, not as 19 April 1995 (the date of signing) but 21 April 1995. Discharge, by operation of s 149(4) of the Act would, therefore, have occurred on 21 April 1998. I note that Mr White's letter to Mr Lelleton is dated 7 April 1995. If an equivalent allowance of two days is made for it to have been received by Mr Lelleton, his Statement of Affairs was filed, as required by s 54(1)(a) of the Act, within 14 days from the date on which he was notified of his bankruptcy. Declarations, consistent with these findings, will be made. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 October 2009 Counsel for the Applicant: Mr L Watts Solicitor for the Applicant: Mr R Silverstein Date of Hearing: 12 October 2009 Date of Judgment: 12 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1165.html


case_title: Sofia and Anor v Pattison and Anor [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997)

case_text: Sofia and Anor v Pattison and Anor , [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997), his Honour said: "Whether the word "file" in s 54(1) is intended to be a reference to the act of the bankrupt or the act of the Registrar is unclear. But, having regard to the context in which the word is used it should be regarded as a reference to the act of the bankrupt. In the first place, the obligation that is imposed by s 54(1) is an obligation that is imposed on the bankrupt. In the second place the obligation is to file a document at a particular place namely at a Registry. This suggests that the statement will be filed when it is left with an officer at the Registry rather than when it has been placed on a file that is maintained at the Registry. Thus the section will be complied with whether or not the statement is subsequently placed on a file by the officer who received it." This decision provides some assistance to Mr Lelleton. It is authority for the proposition that it cannot be concluded that a statement has not been filed for the purposes of s 54(1) simply because the document does not appear on a file maintained by the Registrar. Mr Lelleton did not, however, hand deliver his Statement to the Registry. He posted it and is unable to explain why it does not appear on file. There are a number of possibilities, the most obvious ones being that it went astray in the mail or, having been delivered to the Registry it was, for some unknown reason, not placed on file.


case_text: I accept a submission by counsel for the ACCC that the conduct of the defendant during the examinations on 28 February 2006 and 20 March 2006 was that of denial and laying of a false trail rather than that of minimisation and evasion: cf Australian Competition and Consumer Commission v GIA Pty Ltd (2002) ATPR 41-902 at 45,419 [19] per Heerey J. 26 There are no such other offences. 27 The offences occurred on both 28 February 2006 and 20 March 2006 and to that extent each offence formed part of a course of conduct, at least within the boundaries of the defendant's giving of evidence before the member of the ACCC.


case_text: I find it convenient to set out here paras 18 21 of the submissions of counsel for the ACCC: 18. In Siganto v The Queen [1998] HCA 74 ; (1998) 194 CLR 656 the High Court said at 663[-664]: A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. 19. In Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ, after referring to this passage, said at 343: ... the rationale for that rule [that a plea of guilty should be taken into account in mitigation], so far as it depends on factors other than remorse and acceptance of responsibility, [should] be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. 20. Their Honours went on to say (at 346) that a significant consideration on the issue of the extent to which a plea of guilty is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice is whether it was entered at the first available opportunity. 21. Although there appears to be a divergence of opinion in the High Court with respect to a "two stage" approach to sentencing as opposed to an "instinctive synthesis" (as discussed by Kirby J in Cameron v The Queen at 361[ff]) it is submitted that it is permissible for a sentencing judge to identify the measure of discount allowed for a plea of guilty.


case_text: Section 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act ) lists matters that the court must take into account when passing sentence, to the extent that they are relevant and known to the court. However, the list is not exhaustive, and, in particular, a court must consider general deterrence although it is not listed in s 16A(2): see R v Paull (1990) 20 NSWLR 427 at 434C E; Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 377F 378G.


case_title: R v Paull (1990) 20 NSWLR 427


case_title: Siganto v The Queen [1998] HCA 74 ; (1998) 194 CLR 656


case_outcome: considered

case_text: His Honour was clearly correct to say that findings of credit are matters for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417. Findings of fact based on an assessment of credit that is itself open on the material or has some rational basis are not reviewable by the court: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-9.


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405


case_title: ACCC v Signature Security Group Pty Ltd (2003) ATPR 41-908

case_text: The test whether an undertaking given under s 87B has been breached is objective in the sense that intent of the party who breaches the undertaking is not relevant: see ACCC v Signature Security Group Pty Ltd (2003) 25 ATPR 41-908 at [41]. 5 The ACCC submits that StoresOnline has breached certain terms of the undertaking it gave to the ACCC on 24 April 2006. The present application is said by the ACCC to be urgent because StoresOnline is likely to continue to breach the undertaking when its representatives arrive in Australia next Monday 22 October 2007 to give further presentations relating to the products it offers for sale. It argues that the power of the Court to grant interlocutory relief is grounded in s 23 of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"), which gives the Court " power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate ". It says that the jurisdiction of the Court to entertain the matter is not limited by the TPA. Finally, it submits that the balance of convenience falls in favour of the Court exercising its power to grant the relief, and thereby protects what it claims is the " very strong public interest " in ensuring StoresOnline complies with the terms of its undertaking.


case_text: In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29 (" Patrick Stevedores "), Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said: 'Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) ... to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction .' (Emphasis added.) 9 An Act conferring jurisdiction upon the Federal Court may limit the scope of the Court's power under s 23 of the FCA Act by providing an exhaustive statement of the orders which the Court may make in relation to breaches of the conferring Act. The Act which conferred jurisdiction on the Federal Court in Patrick Stevedores was the Workplace Relations Act 1996 (Cth). No " exhaustive code " limiting the range of remedies which the Federal Court could grant was found in that Act by their Honours. 10 In the present case, s 87B(4) of the TPA gives the Court jurisdiction to make any order it deems appropriate in circumstances where a respondent has breached an undertaking given to the ACCC under s 87B(1). The ACCC has approached the Court for orders compelling compliance with the undertaking. More specifically, the ACCC seeks injunctions to restrain StoresOnline from committing further breaches. There is nothing in the language of s 87B which limits the jurisdiction of the Court to hear the ACCC's application and, if appropriate on the evidence, make the orders it sees fit. 11 StoresOnline disagrees with the proposition that the TPA does not exclusively set out the powers of this Court to make injunctions in respect of relief sought under the TPA. It refers to s 80 of the TPA, which set out circumstances in which injunctions may be granted for contravention or possible contravention of specified provisions in the TPA, and submits that there can be no other source of power for this Court to grant injunctions as relief in applications made under the TPA.


case_text: StoresOnline submits that it has complied with most of the terms of the undertaking it gave to the ACCC, and that any breaches were minor and should not persuade the Court to exercise its discretion to grant the relief sought. It says that it has taken steps to ensure there are no further breaches. In addition, StoresOnline says that the Court does not have jurisdiction to grant the relief, citing Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 (" Thomson ") and arguing that s 80 of the TPA is an exhaustive statement of the circumstances in which injunctive relief sought under the TPA may be granted, to the exclusion of s 23 of the FCA Act . StoresOnline also submits that the balance of convenience does not favour the ACCC because there has been no material harm or prejudice to the ACCC or its purchasers; reliance on the public interest is not decisive; and the breadth of the ACCC's Amended Application travels beyond the scope and duration of some of the terms of the original undertaking. 7 Three issues therefore arise. The first concerns the jurisdiction of the Court to entertain this application and, if it sees fit, its power to grant the relief sought. The second is whether the evidence establishes breaches by StoresOnline of the undertaking necessary to invoke the power of the Court to make orders under s 87B(4) of the TPA. The final issue is whether the balance of convenience weighs in favour of granting or refusing the relief sought. 12 StoresOnline relies on Thomson as authority for the proposition that the Federal Court cannot grant injunctive relief in respect of matters under the TPA unless it does so pursuant to s 80 of the TPA, therefore rendering the ACCC's application for orders beyond the jurisdiction of this Court. It refers to the reasons of Gibbs CJ, Stephen, Mason and Wilson JJ, where there Honours comment at 162 on s 80 (as it then stood): '... s. 80 proceeds upon the footing that it constitutes the Federal Court's exclusive charter to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act . In various sub-sections of s. 80 references are made to injunctions granted "under" the section or a particular sub-section and to applications for injunctions "granted" under the section or a sub-section see sub-ss. (1A), (4) (a) and (b), (5) (a) and (b) and (6). Section 80 makes special provision in several respects for the grant of injunctions under the section see sub-ss. (4), (5) and (6). It is scarcely to be supposed that the Parliament intended to draw a distinction in these respects between two classes of injunctions, one class of injunctions granted under s. 80 and another class granted under ss. 22 or 23 of the Federal Court of Australia Act . The inference is irresistible that Parliament looked upon s. 80 as a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act .' (Emphasis added.) 13 There are several reasons why the observations of their Honours do not mandate that this Court dismiss the present application as beyond jurisdiction. The first is that, when Thomson was decided in 1981, the TPA did not include s 87B which was later inserted by s 13 of the Trade Practices Legislation Amendment Act 1992 (Cth). Counsel for StoresOnline invited me to infer that the insertion by Parliament of s 87B must have been done with the High Court's decision in Thomson in mind and as a guiding principle. This suggested inference is not supported by the language of the TPA itself or any extrinsic material to which I have been referred. The preferable approach, in my view, proceeds on the basis that Parliament introduced s 87B into the TPA to enhance enforcement by the ACCC by increasing the scope and flexibility of the powers of the Court to provide effective means of dealing with breaches or apprehended breaches of the TPA. The fact that Parliament granted power to the Court in s 87B(4) points to the conclusion that it did not intend the powers in relation to s 80 to be the exclusive expression of the Court's ability to grant relief of an injunctive nature. It is not correct, in my view, to regard s 87B as limited in its operation to the scope of the powers conferred by s 80. 14 The second difficulty for OnlineStores is that s 87B of the TPA regulates the particular circumstances in which an undertaking is given directly to the ACCC rather than to the Court. The Court is not involved in that process, and the undertaking is a binding agreement which arises in the context of a statutory regime. The power under s 87B is designed to give effect to and reinforce the undertaking where there has been non-compliance. The Court is given power for the purposes of more effective enforcement if the undertaking is breached. The ordinary and natural meaning of s 87B(4) is to give the Court power to better enforce undertakings by converting them into orders of the Court, and to make other orders in its discretion, if and when it becomes appropriate. 15 Section 80 is a provision invoked when there has been contravention or possible contravention of specified provisions in the TPA. Section 87B is not one of those provisions. The limitations imposed by s 80 on the ability of the Court to make " any other order ... [it] considers appropriate " under s 87B(4)(d) must, on the reasoning advanced by StoresOnline, be found to be implicit in s 80. In my view, there is no basis to imply such a limitation. Section 87B is directed to investing the Court with powers. To limit the Court's ability to grant injunctions at the request of the ACCC where undertakings given under s 87B have been breached is a non-beneficial and inappropriate interpretation of s 87B.


case_text: Finally, I reject the submission by StoresOnline that it should have an undertaking as to damages from the ACCC. The giving of such an undertaking is not a condition of the granting of injunctions: see Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 at 388 (per Davies J). In any event, having refused to grant the blanket injunctions sought by the ACCC in paragraph [19] of its Amended Application, no significant damage should accrue to StoresOnline as it is still entitled to conduct its presentations in Australia, provided it does so within the ambit of the undertaking and the injunctions granted in these reasons. 27 As to costs, I consider that the respondents should pay the costs of the applicant in this application. 28 In giving effect to these reasons, I am of the view that it is appropriate to make orders in the form sought by the ACCC in paragraph [20] of its Amended Application, until further order, with the respondents to pay the applicant's costs. However, given the unusual circumstances surrounding this application, I direct the parties to agree Short Minutes of Order giving effect to these reasons, and to provide them to my associate no later than 5.00 pm on Friday 26 October 2007. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 October 2007 Counsel for the Applicant: Mr S. White SC and Mr T. Brennan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr L. Foster SC and Mr E Hyde Solicitor for the Respondent: Deacons Date of Hearing: 16 October 2007 Date of Judgment: 19 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1597.html


case_text: Lastly, he brought to my attention the provision in the agreement which deems the ordinary shareholder to have warranted to Bendigo Bank that their ordinary shares are fully paid and free from encumbrances. The purpose of the clause was adverted to by Lindgren J in Re APN News & Media Limited (2007) 62 ACSR 400 at [59]-[60]: 59 In substance, the purpose of the deemed warranty is to prevent a shareholder whose shares are subject to encumbrances from receiving the same scheme consideration as that to be received by those whose shares are free from encumbrances, without any obligation, in effect, to refund to INMAL the amount required to discharge the encumbrance. It is not practicable for amounts secured by encumbrance to be deducted from the scheme consideration payable to the relevant scheme participants on the implementation date. 60 The warranty will be deemed to have been given, not only by those offeree shareholders who vote to agree to the scheme, and who, therefore, can be seen to be consenting to give it, but also those who do not vote at all or who vote against the scheme. However, I do not think that this matters. What is important, in my view, is that the deemed warranty is no more than a device directed to ensuring that a scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty is the amount required to discharge the encumbrance. 33 All three matters raised by Mr Bathurst QC were addressed by Lindgren J in this Court in Re APN News and Media Limited 62 ACSR 400. In all three instances, his Honour found that similar clauses in similar transactions were no bar to the implementation of the proposed transactions. I respectfully agree with his Honour's reasons. 34 I am further satisfied that the directors have unanimously recommended the schemes of arrangement to all three classes of members of the plaintiff and that in doing so they have not acted otherwise than in accordance with their duties. I am satisfied that an appropriate independent expert's report was obtained and that the opinion expressed is that held by the author. 35 I am also satisfied that the plaintiff put in place a due diligence committee which has rigorously examined the proposed merger.


case_text: On the hearing of this application today, Mr Bathurst QC, who led for the plaintiff, brought to my attention three particular aspects of the proposed schemes of arrangement. First, he drew my attention to the exclusivity transaction and the "no shop/no talk" provision of the proposed merger. He also drew my attention to the fiduciary carve-out provision within the merger implementation agreement. The "no shop/no talk" provision is an unremarkable term commercially. It satisfies the criteria Santow J adduced in Re Arthur Yates & Co Ltd (2001) 36 ACSR 758. In my opinion, it is not a term which would make the proposed scheme of arrangement such that it ought not be submitted to its members. 31 Secondly, he brought to my attention the terms of the agreement relating to a break fee. In relation to the break fee, he emphasised that there was a break fee payable by both parties to the transaction. Both the plaintiff and the Bendigo Bank must pay a break fee in the sum of $15 million if the transaction does not go ahead for any of the reasons given in the proposed scheme. The break fee is less than 1% of the plaintiff's market capitalisation of $1.6 billion which is within the Australian Takeovers Panel's Guidance Notes: Guidance Note 7: Lock-up Devices (2 nd issue, 2005). In any event, the break fee is not payable in circumstances where the members vote not to implement the scheme. In those circumstances, the break fee is not a disincentive to the shareholders in their consideration of the proposed merger.


case_title: Re Bank of Adelaide (1979) 22 SASR 481

case_text: I am satisfied that that criteria has been established. The plaintiff is a Part 5.1 body as defined in s 9 of the Corporations Act . A scheme of arrangement of the kind proposed is a compromise or arrangement within the meaning of s 411: Re Bank of Adelaide (1979) 22 SASR 481. Subject therefore to the other subsections of ss 411 and 412 , the plaintiff is entitled to seek the exercise of the Court's discretion and make the orders. 15 Two preconditions for the exercise of the power in s 411 are provided for in s 411(2). First, pursuant to s 411(2)(a) , the Court is not entitled to make an order under s 411(1) unless 14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC. I am satisfied on the evidence that 14 days notice of the application has been given to ASIC. 16 Secondly, s 411(2)(b) of the Corporations Act prevents the Court from making an order unless satisfied that ASIC has had a reasonable opportunity to examine the terms of the proposed compromise or arrangement and to make submissions to the Court in relation to the proposed compromise or arrangement, and the draft Explanatory Statement.


case_text: The criteria referred to by Emmett J in Re Central Pacific Minerals N.L. [2002] FCA 239 and approved by Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 have been met. The plaintiff has conformed with Santow J's test in Re NRMA Insurance Ltd (2003) 33 ACSR 523.


case_title: Re CSR Ltd 45 ACSR 34

case_text: The criteria referred to by Emmett J in Re Central Pacific Minerals N.L. [2002] FCA 239 and approved by Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 have been met. The plaintiff has conformed with Santow J's test in Re NRMA Insurance Ltd (2003) 33 ACSR 523. 41 I am satisfied, as Conti J was in Re CSR Ltd 45 ACSR 34, that the marginally different treatment of the ineligible foreign shareholders does not raise an issue as to the proper formation of classes of members affected by the scheme. 42 For those reasons, it would be appropriate to make the orders sought on the application and to appoint a further date for the consideration as to whether the Court should, if the members have so resolved, approve the schemes of arrangement. 43 For those reasons, I make the orders in the short minutes of order this day initialled by me. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 15 October 2007 Counsel for the Plaintiff: Mr T F Bathurst QC with Mr A J Payne Solicitor for the Plaintiff: Johnson Winter & Slattery Date of Hearing: 5 October 2007 Date of Judgment: 5 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1582.html


case_title: Re NRMA Insurance Ltd (2003) 33 ACSR 523


case_text: then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] .


case_text: second argument was that the Board had denied CAP procedural fairness by acting on the untested assertions of Midnight Seas. Reliance was placed upon a dictum of Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 367. I am by no means certain that the view of Deane J represents the current state of Australian administrative law. However, there is no need to decide that issue. The reasonableness, proportionality or arbitrary nature of the Board's decision is to be assessed in the context of its interim nature and the very limited co-operation provided to it by CAP. So viewed, the alleged want of procedural fairness is illusive. (d) The contempt issue I turn then to Sam's complaint. His concern is that the continuing investigation by the Board into the affairs of CAP has the capacity to prejudice his defence of the criminal proceedings against him. Those criminal proceedings are before the New South Wales Local Court. The charges arise solely under the Crimes Act 1900 (NSW). When hearing and disposing of those proceedings, the magistrate will not be exercising the judicial power of the Commonwealth. Further, the prosecutor is not a federal officer or a federal agency but is, instead, a detective in the New South Wales Police Force.


case_text: follows that these paragraphs are not supported by reg 168(2). Even if that were not so, however, the subparagraphs are ambiguous in that they leave the recipient unsure whether production of copies already existing is called for or whether copies of originals are to be made. The notice is, therefore, also bad for uncertainty: cf. Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 per Gibbs CJ; Fieldhouse at 193 per Lockhart J, 204 per Burchett J and 210 per Hill J. FAILURE TO SPECIFY MATTER


case_text: are a number of instances, of course, where this Court and the High Court in its original jurisdiction have assumed a jurisdiction in relation to criminal proceedings then pending before a State court: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ; Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48. However, in each of those cases the proceedings pending in the State court involved the alleged commission of a crime against a law of the Commonwealth. In Hammond, Mr Hammond had been charged with conspiracy in relation to the substitution of kangaroo meat for beef in the export market, apparently an offence against s 86(1)(a) of the Crimes Act 1914 (Cth). Not only that, but the prosecuting body was the Commonwealth as were, effectively, the commissioners conducting the Royal Commission. In De Vonk , the applicant was charged with conspiring to defraud the Commonwealth as was Mr Watson in Watson . In each case, the question of whether a contempt was being committed was part of a matter arising under a law made by the Parliament or in which the Commonwealth was a party. Federal jurisdiction was, therefore, clear. There is no evidence to suggest that the Board is deliberately interfering with the proceedings before the Local Court. It is likely, if that were to be suggested, that the provisions of the Act would not authorise such behaviour: De Vonk at 588. However, as De Vonk shows, unintentional action may yet have the capacity to prejudice the administration of justice. It is necessary therefore to attend to the relationship between the Board's proceedings and those in the Local Court. The following factors are relevant: (a) An important question in the criminal proceedings is whether CAP had any entitlement to receive the Midnight Seas cheque. If it did, then it is difficult to see how Sam could have fraudulently misappropriated it. (b) Whether CAP was entitled to receive the cheque, and if so, on what basis, is a significant aspect of the Board's inquiry. (c) CAP denies Midnight Seas' claim that it was not entitled to the proceeds of the cheque. Any explanation of CAP's position can, indeed should, be conveyed to Midnight Seas as the complainant for its comment. The Board's function of inquiry requires as much. Any information provided to Midnight Seas in that way will not be immune from release by Midnight Seas for the secrecy provisions of Part II of the Act do not operate upon Midnight Seas. (d) If, and when, the Board comes to decide how it should proceed in relation to CAP's registration, then the Board will be required to give reasons for that decision. It is very likely that any such reasons will include the Board's conclusions on the questions of whether CAP was entitled to deposit the cheque together with an assessment of the circumstances leading to that conclusion. (e) That assessment will involve, most likely, a consideration of CAP's relationship with Midnight Seas, a matter also centrally relevant in the criminal proceedings. Because of the secrecy provisions in the Act I do not think that the conduct by the Board of its investigation poses, in itself, a real risk to the integrity of the criminal proceedings. However, part of that investigation will require the Board to obtain Midnight Seas' response to CAP's account of how the cheque came to be deposited into its trust account. That raises, to my mind, a risk that the prosecutor (through Midnight Seas) will come to know, in advance, of CAP's explanation of how it obtained the cheque. That has the capacity to interfere with Sam's defence of the proceedings against him. Independently of that conclusion, the delivery by the Board of its reasons, if it should decide to suspend or cancel CAP's registration, is likely to reveal in advance of Sam's trial CAP's explanation of how it obtained the cheques.


case_text: course that argument leaves unscathed the Board's conclusion on the first point that is, that CAP had acted contrary to express instructions. It follows, therefore, that the Board's power to suspend CAP arose independently of the error I have identified. However, whilst that may be so, the Board's view of the status of the cheque was obviously relevant to the extent of any suspension it imposed. That being so, it was the commission of an error of law which effected the discharge by the Board of its powers. It was, therefore, a jurisdictional error in the sense discussed in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron & McHugh JJ. There are, so it seems to me, no discretionary reasons not to quash the Board's suspension. On 30 March 2009, the Board also suspended David's registration as a tax agent. A number of complaints were made about that step. For present purposes, however, it is clear that David's suspension followed on from CAP's suspension. Since I have concluded that CAP's suspension should be set aside it follows that David's must be set aside as well. (c) The natural justice issue Since I have concluded that the second suspension notice should be set aside, it is not necessary strictly to deal with CAP's arguments about natural justice. Had it been, I would have rejected them. The first argument was that the Board was obliged to permit CAP to cross-examine the complainant. Procedural fairness may so require in appropriate, if somewhat rare, circumstances. Here, however, the circumstances included the interim nature of the Board's act of suspension and the relatively short duration of the suspension.


case_text: applicants submitted that the view that s 251G did not prescribe a topic which permitted the production of information was supported by three authorities: Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53 ; (1976) 134 CLR 475 ; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 ; O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1. The notice was addressed to Armstrong Scalisi Holdings Pty Ltd. The applicants contended that a notice could not be addressed to a corporation but only to its proper officer. In truth, there were two submissions here; one, a submission that a notice could not be served upon a corporation; the other, that if it was, it had to be addressed to the corporation's proper officer. These arguments are, so it seems to me, quite without substance. It has been accepted that a corporation cannot be required physically to attend and give evidence for the very good reason that it is an abstraction lacking physical form: Smorgon v Australian and New Zealand Banking Group [1976] HCA 53 ; (1976) 134 CLR 475 at 481-482 per Stephen J. However, that physical constraint has no impact on the ability of a corporation to answer questions. It is for that reason well established that a corporation may be required to provide information. Indeed, Lockhart J described the contrary argument as "fallacious" in Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 198, an observation with which I respectfully agree. Burchett and Hill JJ also rejected the argument (at 203 and 218 respectively). The power in reg 168(2) to require production of books and documents is a power to produce books and documents in the custody of the person receiving the notice. It does not extend to require a party to bring documents into existence: Fieldhouse at 194-195 per Lockhart J, 204 per Burchett J and 209 per Hill J. It follows that the notice could not lawfully require the production by CAP of copies of original documents held by it. Of course, it is possible that the notice did not on its proper construction seek the creation of documents but instead the production of any copy documents which were in fact held. Lockhart J canvassed this possibility in Fieldhouse at 194-195. In this case, I do not think that the natural and ordinary meaning of subparagraphs (a), (c), (d) and (g) is that they require production of copies already in existence. It follows that these paragraphs are not supported by reg 168(2). Even if that were not so, however, the subparagraphs are ambiguous in that they leave the recipient unsure whether production of copies already existing is called for or whether copies of originals are to be made. The notice is, therefore, also bad for uncertainty: cf. Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 per Gibbs CJ; Fieldhouse at 193 per Lockhart J, 204 per Burchett J and 210 per Hill J. FAILURE TO SPECIFY MATTER It has been held that a notice under s 264 which is bad in part may be severed. So much was held by Burchett J in Fieldhouse at 204 and by Hill J at 210. Lockhart J clearly assumed such a power to exist. However, on the facts in Fieldhouse , both Lockhart and Burchett JJ thought that severance was not practical because the provision of the copies was central to the notice so that parts of it no longer made sense if the paragraphs dealing with copies were excised. Hill J, on the other hand, did not share this concern. I do not think that the notice in this case suffers from that problem. Paragraphs (a), (c), (d) and (g) can be severed from the notice without the balance of it losing coherence. It should be noted in passing that the form of reg 168(2) may well present difficulties of application in the case of electronically held records, but it is not, presently, necessary to address the issues thereby arising. Interference with course of criminal jurisdiction Sam also challenged the notice on the general ground of its capacity to interfere with the criminal proceedings facing him. It is, I think, important to bring out into the open a suppressed premise upon which that argument rested. It was that the notice presently requires CAP to do something. In fact, the time for compliance with the notice expired on 9 February 2009 and it is no longer capable of being complied with. There is presently no legal obligation upon CAP to provide the information sought in the notice. It would not be possible to obtain a court order to compel CAP to provide the information. In a real sense, the notice is spent. The possible relevance of the notice seems therefore only to be twofold: (a) Although it is no longer capable of being complied with, the non-compliance may have been a criminal offence. If the information which was originally required by the notice were now volunteered by CAP it might be relevant to any penalty which was imposed upon it. A related concern, I would think, is the capacity of the continuing failure to provide the information to constitute professional misconduct. Voluntary production may well be likely reduce the seriousness of these matters. The Board itself made this point in its letter of 6 March 2009 which in terms said: As the Board has not withdrawn its Notice to give evidence to the Board dated 16 January 2009, you are required to comply. Failure to do so may result in prosecution under regulation 168 of the Income Tax Assessment Act 1936 . Any conviction may reflect poorly on your good fame, integrity, character and fitness and propriety. (b) It is possible that CAP may be prosecuted for a failure to comply with the notice. Despite these rather indirect incentives to provide the information to the Board, there was no evidence before me that CAP was proposing now to do so. David's evidence on this issue was: I wanted the Notice issue determined as I do not want to be prosecuted for failure to comply. I do not want to be issued with further notices that I believe are beyond what the Board is entitled to serve. Sam gave no evidence on this issue at all. There is, therefore, no evidence that CAP is intending voluntarily to produce the information previously sought in the notice. It is not the case that CAP is under a present obligation to provide the information sought. In that circumstance, the notice appears to present no real risk to the conduct of the criminal proceedings against Sam. Absent a real risk to the administration of justice in those proceedings, the notice should not be set aside on the basis that it constitutes a contempt: BLF at 56 per Gibbs CJ. Conclusion


case_text: an inferior statutory court the Local Court does not have any inherent jurisdiction. It does, however, have a narrower implied jurisdiction which arises upon the principle that a grant of power carries with it everything necessary for its exercise: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16-17 per Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed). In New South Wales much ink has been spilled on the question of whether that implied power extends to the making of non-publication orders which are rooted in notions of contempt: cf. John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 ; (2004) 61 NSWLR 344 at 356-366 [38] - [99] per Spigelman CJ.


case_text: are a number of instances, of course, where this Court and the High Court in its original jurisdiction have assumed a jurisdiction in relation to criminal proceedings then pending before a State court: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ; Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48. However, in each of those cases the proceedings pending in the State court involved the alleged commission of a crime against a law of the Commonwealth. In Hammond, Mr Hammond had been charged with conspiracy in relation to the substitution of kangaroo meat for beef in the export market, apparently an offence against s 86(1)(a) of the Crimes Act 1914 (Cth). Not only that, but the prosecuting body was the Commonwealth as were, effectively, the commissioners conducting the Royal Commission. In De Vonk , the applicant was charged with conspiring to defraud the Commonwealth as was Mr Watson in Watson . In each case, the question of whether a contempt was being committed was part of a matter arising under a law made by the Parliament or in which the Commonwealth was a party. Federal jurisdiction was, therefore, clear. Granted then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] . Against that it may be said that the Board's function of protecting the public is being thwarted. This is, in a sense, true. No doubt matters of public interest inform the breadth of injunctive relief which may be granted: see Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 198-199 per Gibbs CJ (with whom Mason and Murphy JJ relevantly agreed) and 208 per Deane J. In that case the public significance of the investigation being performed by the Royal Commission made it appropriate only to prevent examination of the plaintiff and not any other witness. No doubt too, there is a public interest served by protecting the populace at large from unscrupulous tax agents, an interest to which the powers in s 252K seem naturally inclined. However, there is a countervailing public interest in ensuring the proper operation of the criminal justice system. In this case the former does not warrant a narrowing of the injunctive relief I am otherwise minded to grant. The effect of my orders will be that the Board will be entitled to continue its inquiries so long as it does not divulge any of its results to other persons during the pendency of the criminal proceedings. It will also be restrained during the same period from concluding whether the registration of CAP should be suspended or cancelled as a result of the matters arising out of the Midnight Seas' complaint. For practical reasons, these conclusions must apply mutatis mutandis to David. (e) Challenges to the notice for information I have already noted that CAP's initial responses to the Board were largely not to the Board's satisfaction and that it had, consequently, issued a notice to CAP on 16 January 2009 formally requiring CAP to furnish it with information. That information was required by the Board to be provided initially by 2 February 2009 but this was subsequently extended to the close of business on 9 February 2009. Some of the information sought in the notice was provided to the Board on 4 February 2009 but in respect of the balance a further extension was sought. That extension was not forthcoming and, assuming the notice to be valid, CAP had failed to comply with it by 10 February 2009. That failure may well have constituted an offence against reg 168 of the Income Tax Regulations 1936 .


case_text: submits that this second suspension should be set aside because it is, in effect, an act of double punishment. In my opinion, this contention should be rejected. I would accept that, generally speaking, an administrative power of suspension such as that conferred by s 251K(2)(b) may not be used more than once in relation to a single episode of conduct. This is so because it is appropriate if the text permits to interpret such powers in a way which is consistent with notions of good administration and finality: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [64] per Nettle JA (with whom Warren CJ and Chernov JA agreed). Here, there is nothing in the text of s 251K(2)(b) which would suggest that, in an ordinary case, it can be used to inflict a sanction repeatedly for the same conduct. This is not to accept any application in disciplinary matters of principles of issue estoppel, a course barred by established authority: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635 per Gleeson CJ, Meagher and Handley JJA. Rather, it is simply to give effect to the meaning of the words in s 251K(2)(b).


case_text: an inferior statutory court the Local Court does not have any inherent jurisdiction. It does, however, have a narrower implied jurisdiction which arises upon the principle that a grant of power carries with it everything necessary for its exercise: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16-17 per Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed). In New South Wales much ink has been spilled on the question of whether that implied power extends to the making of non-publication orders which are rooted in notions of contempt: cf. John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 ; (2004) 61 NSWLR 344 at 356-366 [38] - [99] per Spigelman CJ. For present purposes, what is relevant is the general acceptance that the inherent jurisdiction of the Supreme Court of a State extends to the protection of the jurisdiction of courts involved in the administration of justice in the State: John Fairfax Publications at 354 [27] per Spigelman CJ. That emerges from the Supreme Court's ultimate supervisory jurisdiction over the administration of justice. By contrast, this Court does not have a general supervisory jurisdiction over the administration of justice in New South Wales (or any other State). Thus, the mere fact that the Board's processes might constitute contempt of the Local Court is not, without more, sufficient to attract this Court's jurisdiction.


case_text: submits that this second suspension should be set aside because it is, in effect, an act of double punishment. In my opinion, this contention should be rejected. I would accept that, generally speaking, an administrative power of suspension such as that conferred by s 251K(2)(b) may not be used more than once in relation to a single episode of conduct. This is so because it is appropriate if the text permits to interpret such powers in a way which is consistent with notions of good administration and finality: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [64] per Nettle JA (with whom Warren CJ and Chernov JA agreed). Here, there is nothing in the text of s 251K(2)(b) which would suggest that, in an ordinary case, it can be used to inflict a sanction repeatedly for the same conduct. This is not to accept any application in disciplinary matters of principles of issue estoppel, a course barred by established authority: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635 per Gleeson CJ, Meagher and Handley JJA. Rather, it is simply to give effect to the meaning of the words in s 251K(2)(b). However, accepting that to be so does not assist CAP. I would not regard that principle of interpretation as preventing such an administrative power of suspension from being used on an interim basis or in a preliminary or provisional way. Where a determination is expressed to be preliminary or interim the principle upon which the submission proceeds does not apply. In such a case, there has been no 'final' determination. In Kabourakis Nettle JA, at [50], set forth a passage from the reasons for judgement of Vaisey J in Re 56 Denton Road Twickenham [1953] 1 Ch 51 at 56-57 which was in these terms: ... where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affect be altered or withdrawn by that body. (Emphasis added.)


case_title: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73


case_text: the provisions of the second limb of s 266 permit the making of a regulation which is "necessary or convenient to be prescribed for giving effect to this Act". The power conferred by s 266 involves a well known statutory formula which authorises regulations to be made strictly ancillary to the Act but no so as to extend its scope or general application: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 328 per French J citing Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 253-254. As those authorities show, the criteria of necessity and convenience are not subjective. That means that the question of whether any particular regulation is authorised turns upon the Court's assessment of the regulation's necessity or convenience. Is the garnering by the Board of information necessary or convenient for the purpose of permitting the Board to carry out its duties and functions? In my opinion, it is convenient so that the answer to this question must be yes. It follows that the regulation is also supportable under the second limb of s 266. WRONG ADDRESSEE