case_text: Co-Existence Agreement cast obligations upon the traditional owners to commence determination applications under the Act in respect of any or all parts of the ILUA area, according to the terms and conditions of the Co-Existence Agreement. Such an application is regarded as a conforming application for the purposes of that agreement. Prior to the parties entering into the Co-Existence Agreement, a claim group on behalf of the Wik and Wik Way Peoples commenced a native title determination before the National Native Title Tribunal on 24 March 1994 and proceedings QG6001 of 1998 were commenced in this Court by which a determination of native title rights and interests was sought. Determination application QUD6001 of 1998 came to be described as the main application. Three determinations of the subsistence of native title rights and interests have been made by the Court in relation to the land and waters the subject of the claim in the main application. The first determination was made by Justice Drummond on 3 October 2000 in respect of what was described as Part A of the determination application. Part A of the application was confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples ( Wik Peoples v State of Queensland [2000] FCA 1443). Part B of the application comprised the balance of the lands and waters of the claim area, which contained lands held under pastoral and mining titles. The parties to the main application negotiated, through mediation processes, a resolution of the Part B claim and on 13 October 2004, Justice Cooper made two determinations of the native title rights and interests of the Wik and Wik Way Peoples in respect of those lands and waters ( Wik Peoples v State of Queensland [2004] FCA 1306).


case_outcome: cited

case_title: Wik Peoples v State of Queensland [2004] FCA 1306


case_text: made under s 87 of the Act take effect not only inter-parties in the resolution of the claims made in the proceedings but represent an independent judicial determination, in the exercise of the judicial power of the Commonwealth, that may be asserted, as a matter of law, against anyone. Although the Act by s 223(1)(c) in part defines native title or native title rights and interests by reference to the rights and interests recognised by the common law of Australia, a determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs, not the Act ( Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [75] and [76] per Gleeson CJ, Gummow and Hayne JJ). A number of considerations are to be taken into account in determining whether the proposed orders appear appropriate to the Court. First, the Act recognises and encourages the resolution of applications by mediation, negotiation and ultimately agreement without the need for a hearing and the assessment of evidence and fact-finding by the Court necessary in the course of a resolving a controversy. Second, the Court will be concerned to understand and place emphasis upon whether the agreement is freely made on an informed basis by all parties and whether the parties are represented by experienced independent lawyers. In the case of a State party representing the public interest, the Court will consider whether appropriate consideration has been given to the issues raised by the proposed consent determination. Third, so far as the State is concerned, the Court recognises that a State has access to its own archival material and generally has had a long period of engagement with Aboriginal communities and is therefore likely to be familiar with the historical arrangements within those communities. Fourth, although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are "rooted in reality" (" Native Title A Constitutional Shift? ", University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009). In that sense, the Court ought to be satisfied that the proposed orders are prima facie appropriate in order to satisfy the test under s 87(2) of the Act. Section 94A of the Act requires that an order for a determination of native title must set out details of the matters mentioned in s 225 of the Act which must be read together with s 223 of the Act. These sections give meaning to the terms "determination of native title" and "native title" and "native title rights and interests". In Members of the Yorta Yorta Aboriginal Community v State of Victoria (supra) at [76], Gleeson CJ, Gummow and Hayne JJ treated the statutory elements contained in s 223 as central. The mandatory requirements for a determination of native title are these. The native title rights and interests must be communal, group or individual. They must be rights and interests in relation to land or waters. They must be possessed under the traditional laws acknowledged and the traditional customs observed by Aboriginal peoples; Aboriginal people by their law and customs must have a connection with the land or waters; and the native title rights and interests must be recognised by the common law of Australia. I am satisfied that the anthropological material demonstrates that the Wik and Wik Way Peoples are descended from a society of Aboriginal people who were in occupation of the land and waters of the Determination Area at sovereignty and who formed a society united by their acknowledgement and observance of a normative body of traditional laws, customs and beliefs. Through their continued acknowledgement and observance of these normative laws and customs, the Wik and Wik Way Peoples have, since sovereignty, maintained a connection with the Determination Area. I am satisfied that the content of those native title rights and interests which derive from the practice of traditional laws and customs have been identified and established through the anthropological material. The agreement provides for consent orders entirely consistent with the anthropological material. I am satisfied the proposed orders address each of the elements of s 225 of the Act. Thus, I am satisfied that the orders appear appropriate in accordance with s 87 of the Act.


case_outcome: referred to

case_title: Jess v Scott (1986) 12 FCR 187

case_text: applicant sought to file a notice of appeal nearly three weeks after the time prescribed by the rules of court. He is required to establish special reasons for the extension within the principle stated by this Court in Jess v Scott (1986) 12 FCR 187 at 195. The applicant explained the reasons for the delay. He filed an affidavit and sought to supplement his explanations in court this afternoon. He told me that he had no money to pay legal fees and that he needed the assistance of a friend to prepare his notice of appeal. The exercise of the discretion to extend time is to take into account not only the reason for the delay but the question of whether the proposed appeal has sufficient prospects of success to warrant an extension of time.


case_text: On or about 3 April 2006 the appellant wrote to the Tribunal requesting written reasons for the decision of Senior Member McCabe given 27 October 2005. Written reasons for decision were made available on 13 April 2006. REASONS OF THE TRIBUNAL 4 Senior Member McCabe indicated in par 6 of his Reasons for Decision that the principles which should be applied in respect of an application for reinstatement pursuant to s 42A(8) and (9) are those suggested by Manoli v Secretary to the Department of Social Security (1994) 35 ALD 133. In summary, the Tribunal must consider: • the conduct of the appellant • any prejudice (most obviously prejudice to the respondent) • the merits of the substantive case and • in considering these matters, the overriding obligation to do what is fair in the circumstances. 5 Applying that approach, the Tribunal: 1. Did not accept that the appellant and Thiel Partners had not received notice of the hearing listed for 2 September 2005. 2. Did not accept that the appellant had a good excuse for failing to attend the original hearing on 2 September 2005 at which the case was dismissed. 3. Found that the interests of the respondent were not prejudiced by the delay attending the review, however some prejudice to the interests of the respondent could accrue if the appellant's claim was not prosecuted expeditiously. 4. Found that the appellant's interests would be prejudiced if the Tribunal did not allow reinstatement because it would be unable to continue its challenge to the decision under review. 5. Was of the view that the merits of the case had not been substantiated beyond an assertion by the appellant that it had good prospects of success. 6. Found that the failure of counsel appearing for the appellant at the hearing to explain the discrepancy between the contentions in the outline and the facts as they emerged at the hearing 'must count against the appellant' and that the appellant was treating the Tribunal with 'indifference'. 7. Found that 'the excuse [the appellant] offered for its earlier failure to attend turned out to be untrue'. 8. Was not minded to grant an adjournment to allow the appellant to provide material given the delays that had already occurred. 6 In conclusion, the Tribunal held at par 12: 'The original application was dismissed after the appellant or its representative failed to attend a directions hearing. Its reinstatement application did not address one of the important issues before the Tribunal at the hearing (the merits of the case) and the excuse it offered for its earlier failure to attend turned out to be untrue. It is fair to all the parties in all the circumstances that the application for reinstatement be refused.' APPEAL 7 A party to a proceeding before the Tribunal may appeal to the Federal Court from a decision of the Tribunal only on questions of law: s 44 AAT Act. 8 The grounds of appeal in this case are: 1. Whether the Tribunal erred in law in refusing an application by the appellant for an adjournment to place further affidavit material before the Tribunal and therefore denying the appellant opportunity to properly prosecute the application for reinstatement: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 2. Whether the Tribunal erred in law in respect of the order made 27 October 2005, and the dismissal of the appellant's application to reinstate the application for review: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 3. Whether the Tribunal erred in law in respect to the orders made 27 October 2005, in that the Tribunal has made a decision that is unreasonable. SUBMISSIONS OF THE APPELLANT 9 The appellant submits that the crucial error of the Tribunal appears at pars 7, 8, 9, 10, 11, 12 of the Written Reasons for Oral Decision of the Tribunal. In summary the appellant submits that: • The Tribunal failed to give the appellant a reasonable opportunity to be heard in relation to the email from Mr Summerville. The appellant relied on s 39 AAT Act which provides that a Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. • The Tribunal has the power to grant an adjournment at any time and that the efficient running of the court should not prevail over the injustice of preventing the appellant from responding to an adverse inference. • The email that was presented to the appellant at the application for reinstatement was information that was adverse to the interests of the appellant, and was used by the Tribunal to make very serious findings against the appellant going to its credit and integrity. • There may be several reasonable explanations that the appellant can offer in respect of the email. • Although the Tribunal has a duty to discharge its obligations in an expeditious manner (s 33(1) AAT Act), the needs of case management do not derogate from the requirements of procedural fairness: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. • Refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting its case: Sullivan v Department of Transport (1978) 20 ALR 323. • The Tribunal wrongly denied the appellant the opportunity to fully present its case, and denied the appellant procedural fairness. • The decision of 27 October 2005 and the reasons given on 13 April 2006 in relation to reinstatement were unreasonable in that the reference to the adjournment was in relation to material supporting the merits of the case, and not in response to the email evidence that related to the conduct of the appellant. While the Tribunal must be minded to delays and prejudice caused by delay, it must not subordinate that interest to the need for procedural fairness. • The Tribunal acted in error by reaching conclusions which were not open to it, and without any reasonable or logical basis, and committed manifest Wednesbury unreasonableness. RESPONDENT'S SUBMISSIONS 10 In summary, the respondent submits that: • Procedural fairness only requires that a party be given a reasonable opportunity to present its case, not that a Tribunal ensure that a party takes the best advantage of the opportunity to which it is entitled: Sullivan v Department of Transport (1978) 20 ALR 323. • It is relevant to enquire whether the party or its legal representative should have reasonably apprehended that the issue was or might become a live issue ( Re Building Workers' Industrial Union (Aust); Ex parte Gallagher [1988] HCA 4 ; (1988) 76 ALR 353 at 357) and in this matter the appellant did not file any material with the Tribunal in support of its application for reinstatement. • It was clear that the appellant was aware of the issue of its non-appearance at the directions hearing on 2 September 2005, that this was a live issue, and that a reasonable explanation and evidence of the reasonable explanation for this non-attendance would be required to be put before the Tribunal. • The only evidence before the Tribunal at the reinstatement hearing was the email from Mr Summerville to Ms Dimitrijevski. Although, as the appellant submits, there may be several reasonable explanations that the appellant could offer in respect of the document, the appropriate time to provide any explanation was at the reinstatement hearing. • There was no denial of procedural fairness by the Tribunal. • In this case it was open on the material before it for the Tribunal to make the findings of fact that it made, and the decision of the Tribunal was not unreasonable in the Wednesbury sense and therefore no error of law was made out. ISSUES BEFORE THIS COURT 11 There are essentially two issues of law which arise in respect of the appellant's notice of appeal, namely whether the appellant has been denied procedural fairness by the Tribunal and whether the decision of the Tribunal was unreasonable in the Wednesbury sense. 12 The application by the Tribunal of the principles articulated in Manoli was not in dispute. 13 I propose to deal with each issue in turn. WAS THE APPELLANT DENIED PROCEDURAL FAIRNESS BY THE TRIBUNAL? 14 The appellant has strongly urged the Court, both in written and oral submissions, to allow the appeal on the basis that it was denied procedural fairness by the Tribunal, both in relation to the Tribunal refusing an adjournment to allow Counsel for the appellant to take instructions in relation to the email produced at the Tribunal hearing, and in relation to the decision of the Tribunal to refuse to reinstate the matter under s 42A AAT Act. 15 The appellant in this case is subject to a significant administrative penalty. It is entitled to dispute that penalty, and to receive a fair hearing in so doing. 16 There is no question that, as explained by Mason J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584, there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations. In the context of decisions for which provision is made by statute, his Honour went on at 585: 'In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...' 17 Brennan J in Kioa discussed the principles concerning a party having an opportunity to deal with matters relevant to its case as follows: (at 628) 'A person whose interests are likely to be affected by an interest of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise .... The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.... (629) Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made...' 18 These principles were affirmed recently in different contexts by the High Court in Applicant VEAL of 2002 v MIMIA [2005] HCA 72 ; (2005) 222 ALR 411 and by the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 ; (2003) 133 FCR 89. 19 In this case the reason that the appellant's substantive application before the Tribunal was dismissed under s 42A(2) AAT Act on 2 September 2005 was that the appellant did not appear at the hearing on that day. Section 42A(2) provides: '(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or (b) in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.' 20 There does not appear to be any dispute that the Tribunal was empowered to dismiss the appellant's application on 2 September 2005 in view of the appellant's non-appearance at that hearing. 21 It therefore follows that it was obvious that issues and evidence relevant to the non-appearance of the appellant on that day would have been critical at the reinstatement hearing of 27 October 2005, and that ensuring that all appropriate inquiries had been made by the appellant, and that their Counsel was properly briefed as to this issue, would be important in the conduct of that hearing. 22 As stated by Mason J in Kioa , it is important to consider the issues of procedural fairness as appropriate and adapted to the circumstances of the particular case. 23 Here, the Tribunal on 27 October 2005 had before it a case where, notwithstanding that the case was being prosecuted by the appellant: 1. Over the course of eight months, the appellant had a history of failing to attend hearings. Indeed out of four hearings listed, the appellant attended only one, and another was vacated at its request. 2. The appellant failed to comply with deadlines, including those which it had requested. 3. The notice of the hearing of the substantive matter was sent by the Tribunal to Mr Summerville, the nominated representative of the appellant, in accordance with the AAT Act. Section 68AA(1) provides, so far as relevant: 'For the purposes of this Act: (a) a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable: (i) if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation the proceeding may be sent that address ... ... (b) a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.' 4. There does not appear to be any dispute that, at the time, Mr Summerville was properly served with the relevant notice of listing by the Tribunal, or that, as a result for the purposes of s 68AA(1), the appellant was properly served with that notice. 5. It is very clear that critical issues for the appellant in the reinstatement proceedings on 27 October 2005 were the merits of the substantive application which had been dismissed on 2 September 2005, and why the appellant had not appeared at the hearing of 2 September 2005. 6. In relation to the merits of the substantive case the appellant submitted before the Senior Member at the hearing on 27 October 2005 that: • its case had 'strong merits and a good chance of success' • it intended to show that, on a proper consideration of all the facts, it was not liable for the GST in respect of which it had been assessed • it would show that it was not liable for the GST and penalties imposed by the respondent by means of substantial documentary evidence • it would show that the monies received by it in respect of which GST and penalties had been levied had been refunded in total. 7. Other than those assertions, no material was provided to substantiate the claim of the appellant that its case had 'strong merits and a good chance of success'. 8. In relation to its failure to appear at the hearing of 2 September 2005, the appellant submitted in writing before the Senior Member at the hearing of 27 October 2005 that: • the appellant, and, to the best of the appellant's knowledge, Mr Summerville, did not receive any listing for the hearing held by the Tribunal on 2 September 2005 • in the event that Mr Summerville did receive the listing for 2 September 2005, the appellant was not informed of the listing by Mr Summerville • the appellant believed that the reason that neither it nor, to the best of its belief, Mr Summerville, did not receive any listing for the hearing arose from the change of representation in the matter • as the appellant had not received a listing for the hearing, the appellant was unable to arrange for itself or a representative of itself to attend the hearing • if the appellant had received a listing of the 2 September 2005 hearing, the appellant would have attended or arranged for a representative to attend the hearing, or otherwise have informed the Tribunal. 9. However, notwithstanding these submissions, the respondent was able, seemingly without difficulty, having inquired of Mr Summerville, to produce evidence that Mr Summerville had forwarded the notice of listing of 2 September 2005 to the appellant, and had indicated that he intended send on the original notice. 24 In view of the history of this matter, that Counsel for the appellant was taken by surprise by the email was extraordinary. It was particularly astonishing in light of the facts that: • presumably, in advance of the hearing of 27 October 2005 the appellant could have asked Mr Summerville whether he had received the notice of listing, as the respondent did • although the issue of the appellant's non-attendance on 2 September 2005 was decisive in the dismissal of their application on that date, it appeared that the appellant had not taken that elementary step as its Counsel was unprepared for that evidence to be produced • the appellant for unknown reasons was prepared to make submissions that to the best of its knowledge neither it nor Mr Summerville had received the notice of listing, without apparently ascertaining from Mr Summerville whether that was the case.


case_outcome: applied

case_text: On or about 3 April 2006 the appellant wrote to the Tribunal requesting written reasons for the decision of Senior Member McCabe given 27 October 2005. Written reasons for decision were made available on 13 April 2006. REASONS OF THE TRIBUNAL 4 Senior Member McCabe indicated in par 6 of his Reasons for Decision that the principles which should be applied in respect of an application for reinstatement pursuant to s 42A(8) and (9) are those suggested by Manoli v Secretary to the Department of Social Security (1994) 35 ALD 133. In summary, the Tribunal must consider: • the conduct of the appellant • any prejudice (most obviously prejudice to the respondent) • the merits of the substantive case and • in considering these matters, the overriding obligation to do what is fair in the circumstances. 5 Applying that approach, the Tribunal: 1. Did not accept that the appellant and Thiel Partners had not received notice of the hearing listed for 2 September 2005. 2. Did not accept that the appellant had a good excuse for failing to attend the original hearing on 2 September 2005 at which the case was dismissed. 3. Found that the interests of the respondent were not prejudiced by the delay attending the review, however some prejudice to the interests of the respondent could accrue if the appellant's claim was not prosecuted expeditiously. 4. Found that the appellant's interests would be prejudiced if the Tribunal did not allow reinstatement because it would be unable to continue its challenge to the decision under review. 5. Was of the view that the merits of the case had not been substantiated beyond an assertion by the appellant that it had good prospects of success. 6. Found that the failure of counsel appearing for the appellant at the hearing to explain the discrepancy between the contentions in the outline and the facts as they emerged at the hearing 'must count against the appellant' and that the appellant was treating the Tribunal with 'indifference'. 7. Found that 'the excuse [the appellant] offered for its earlier failure to attend turned out to be untrue'. 8. Was not minded to grant an adjournment to allow the appellant to provide material given the delays that had already occurred. 6 In conclusion, the Tribunal held at par 12: 'The original application was dismissed after the appellant or its representative failed to attend a directions hearing. Its reinstatement application did not address one of the important issues before the Tribunal at the hearing (the merits of the case) and the excuse it offered for its earlier failure to attend turned out to be untrue. It is fair to all the parties in all the circumstances that the application for reinstatement be refused.' APPEAL 7 A party to a proceeding before the Tribunal may appeal to the Federal Court from a decision of the Tribunal only on questions of law: s 44 AAT Act. 8 The grounds of appeal in this case are: 1. Whether the Tribunal erred in law in refusing an application by the appellant for an adjournment to place further affidavit material before the Tribunal and therefore denying the appellant opportunity to properly prosecute the application for reinstatement: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 2. Whether the Tribunal erred in law in respect of the order made 27 October 2005, and the dismissal of the appellant's application to reinstate the application for review: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 3. Whether the Tribunal erred in law in respect to the orders made 27 October 2005, in that the Tribunal has made a decision that is unreasonable. SUBMISSIONS OF THE APPELLANT 9 The appellant submits that the crucial error of the Tribunal appears at pars 7, 8, 9, 10, 11, 12 of the Written Reasons for Oral Decision of the Tribunal. In summary the appellant submits that: • The Tribunal failed to give the appellant a reasonable opportunity to be heard in relation to the email from Mr Summerville. The appellant relied on s 39 AAT Act which provides that a Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. • The Tribunal has the power to grant an adjournment at any time and that the efficient running of the court should not prevail over the injustice of preventing the appellant from responding to an adverse inference. • The email that was presented to the appellant at the application for reinstatement was information that was adverse to the interests of the appellant, and was used by the Tribunal to make very serious findings against the appellant going to its credit and integrity. • There may be several reasonable explanations that the appellant can offer in respect of the email. • Although the Tribunal has a duty to discharge its obligations in an expeditious manner (s 33(1) AAT Act), the needs of case management do not derogate from the requirements of procedural fairness: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. • Refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting its case: Sullivan v Department of Transport (1978) 20 ALR 323. • The Tribunal wrongly denied the appellant the opportunity to fully present its case, and denied the appellant procedural fairness. • The decision of 27 October 2005 and the reasons given on 13 April 2006 in relation to reinstatement were unreasonable in that the reference to the adjournment was in relation to material supporting the merits of the case, and not in response to the email evidence that related to the conduct of the appellant. While the Tribunal must be minded to delays and prejudice caused by delay, it must not subordinate that interest to the need for procedural fairness. • The Tribunal acted in error by reaching conclusions which were not open to it, and without any reasonable or logical basis, and committed manifest Wednesbury unreasonableness. RESPONDENT'S SUBMISSIONS 10 In summary, the respondent submits that: • Procedural fairness only requires that a party be given a reasonable opportunity to present its case, not that a Tribunal ensure that a party takes the best advantage of the opportunity to which it is entitled: Sullivan v Department of Transport (1978) 20 ALR 323. • It is relevant to enquire whether the party or its legal representative should have reasonably apprehended that the issue was or might become a live issue ( Re Building Workers' Industrial Union (Aust); Ex parte Gallagher [1988] HCA 4 ; (1988) 76 ALR 353 at 357) and in this matter the appellant did not file any material with the Tribunal in support of its application for reinstatement. • It was clear that the appellant was aware of the issue of its non-appearance at the directions hearing on 2 September 2005, that this was a live issue, and that a reasonable explanation and evidence of the reasonable explanation for this non-attendance would be required to be put before the Tribunal. • The only evidence before the Tribunal at the reinstatement hearing was the email from Mr Summerville to Ms Dimitrijevski. Although, as the appellant submits, there may be several reasonable explanations that the appellant could offer in respect of the document, the appropriate time to provide any explanation was at the reinstatement hearing. • There was no denial of procedural fairness by the Tribunal. • In this case it was open on the material before it for the Tribunal to make the findings of fact that it made, and the decision of the Tribunal was not unreasonable in the Wednesbury sense and therefore no error of law was made out. ISSUES BEFORE THIS COURT 11 There are essentially two issues of law which arise in respect of the appellant's notice of appeal, namely whether the appellant has been denied procedural fairness by the Tribunal and whether the decision of the Tribunal was unreasonable in the Wednesbury sense. 12 The application by the Tribunal of the principles articulated in Manoli was not in dispute. 13 I propose to deal with each issue in turn. WAS THE APPELLANT DENIED PROCEDURAL FAIRNESS BY THE TRIBUNAL? 14 The appellant has strongly urged the Court, both in written and oral submissions, to allow the appeal on the basis that it was denied procedural fairness by the Tribunal, both in relation to the Tribunal refusing an adjournment to allow Counsel for the appellant to take instructions in relation to the email produced at the Tribunal hearing, and in relation to the decision of the Tribunal to refuse to reinstate the matter under s 42A AAT Act. 15 The appellant in this case is subject to a significant administrative penalty. It is entitled to dispute that penalty, and to receive a fair hearing in so doing. 16 There is no question that, as explained by Mason J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584, there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations. In the context of decisions for which provision is made by statute, his Honour went on at 585: 'In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...' 17 Brennan J in Kioa discussed the principles concerning a party having an opportunity to deal with matters relevant to its case as follows: (at 628) 'A person whose interests are likely to be affected by an interest of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise .... The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.... (629) Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made...' 18 These principles were affirmed recently in different contexts by the High Court in Applicant VEAL of 2002 v MIMIA [2005] HCA 72 ; (2005) 222 ALR 411 and by the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 ; (2003) 133 FCR 89. 19 In this case the reason that the appellant's substantive application before the Tribunal was dismissed under s 42A(2) AAT Act on 2 September 2005 was that the appellant did not appear at the hearing on that day. Section 42A(2) provides: '(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or (b) in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.' 20 There does not appear to be any dispute that the Tribunal was empowered to dismiss the appellant's application on 2 September 2005 in view of the appellant's non-appearance at that hearing. 21 It therefore follows that it was obvious that issues and evidence relevant to the non-appearance of the appellant on that day would have been critical at the reinstatement hearing of 27 October 2005, and that ensuring that all appropriate inquiries had been made by the appellant, and that their Counsel was properly briefed as to this issue, would be important in the conduct of that hearing. 22 As stated by Mason J in Kioa , it is important to consider the issues of procedural fairness as appropriate and adapted to the circumstances of the particular case. 23 Here, the Tribunal on 27 October 2005 had before it a case where, notwithstanding that the case was being prosecuted by the appellant: 1. Over the course of eight months, the appellant had a history of failing to attend hearings. Indeed out of four hearings listed, the appellant attended only one, and another was vacated at its request. 2. The appellant failed to comply with deadlines, including those which it had requested. 3. The notice of the hearing of the substantive matter was sent by the Tribunal to Mr Summerville, the nominated representative of the appellant, in accordance with the AAT Act. Section 68AA(1) provides, so far as relevant: 'For the purposes of this Act: (a) a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable: (i) if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation the proceeding may be sent that address ... ... (b) a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.' 4. There does not appear to be any dispute that, at the time, Mr Summerville was properly served with the relevant notice of listing by the Tribunal, or that, as a result for the purposes of s 68AA(1), the appellant was properly served with that notice. 5. It is very clear that critical issues for the appellant in the reinstatement proceedings on 27 October 2005 were the merits of the substantive application which had been dismissed on 2 September 2005, and why the appellant had not appeared at the hearing of 2 September 2005. 6. In relation to the merits of the substantive case the appellant submitted before the Senior Member at the hearing on 27 October 2005 that: • its case had 'strong merits and a good chance of success' • it intended to show that, on a proper consideration of all the facts, it was not liable for the GST in respect of which it had been assessed • it would show that it was not liable for the GST and penalties imposed by the respondent by means of substantial documentary evidence • it would show that the monies received by it in respect of which GST and penalties had been levied had been refunded in total. 7. Other than those assertions, no material was provided to substantiate the claim of the appellant that its case had 'strong merits and a good chance of success'. 8. In relation to its failure to appear at the hearing of 2 September 2005, the appellant submitted in writing before the Senior Member at the hearing of 27 October 2005 that: • the appellant, and, to the best of the appellant's knowledge, Mr Summerville, did not receive any listing for the hearing held by the Tribunal on 2 September 2005 • in the event that Mr Summerville did receive the listing for 2 September 2005, the appellant was not informed of the listing by Mr Summerville • the appellant believed that the reason that neither it nor, to the best of its belief, Mr Summerville, did not receive any listing for the hearing arose from the change of representation in the matter • as the appellant had not received a listing for the hearing, the appellant was unable to arrange for itself or a representative of itself to attend the hearing • if the appellant had received a listing of the 2 September 2005 hearing, the appellant would have attended or arranged for a representative to attend the hearing, or otherwise have informed the Tribunal. 9. However, notwithstanding these submissions, the respondent was able, seemingly without difficulty, having inquired of Mr Summerville, to produce evidence that Mr Summerville had forwarded the notice of listing of 2 September 2005 to the appellant, and had indicated that he intended send on the original notice. 24 In view of the history of this matter, that Counsel for the appellant was taken by surprise by the email was extraordinary. It was particularly astonishing in light of the facts that: • presumably, in advance of the hearing of 27 October 2005 the appellant could have asked Mr Summerville whether he had received the notice of listing, as the respondent did • although the issue of the appellant's non-attendance on 2 September 2005 was decisive in the dismissal of their application on that date, it appeared that the appellant had not taken that elementary step as its Counsel was unprepared for that evidence to be produced • the appellant for unknown reasons was prepared to make submissions that to the best of its knowledge neither it nor Mr Summerville had received the notice of listing, without apparently ascertaining from Mr Summerville whether that was the case. 35 I note that the appellant has claimed that the decision of the Tribunal is so unreasonable that no reasonable person could have reached it. The term 'Wednesbury unreasonableness' is a reference to the decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1947] 2 All ER 680, in particular comments of Lord Greene MR as follows: 'Theoretically it is true to say - and in practice it may operate in some cases - that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing. ' (at 683) 36 While sending correspondence or documents by email does not of itself necessarily equate to receipt of that correspondence or those documents by the addressee (this issue was not the subject of submissions before me, however I note an interesting discussion of the issue in S Hill, 'Flogging a Dead Horse The Postal Acceptance Rule and Email' (2001) 17 Journal of Contract Law 151, the Tribunal had evidence before it that the notice of listing of 2 September 2005 was not only emailed to the appellant by Mr Summerville, but that 'the original' was also sent by another means. I have already noted that it appears that Thiel Partners was the nominated representative of the appellant. There is also no dispute that the address of Thiel Partners was the address nominated by the appellant for service of documents within the meaning of the AAT Act, or that it was appropriate for Mr Summerville, in his communications with the appellant, to forward correspondence to Ms Dimitrijevski. There was evidence before the Tribunal that the notice of listing for the hearing of 2 September 2005 had been communicated in multiple ways to the appellant and that the appellant was not only claiming lack of awareness of the notice of listing, but apparently as indicated by the fact that its counsel was taken by surprise by this fact was unaware that its representative had forwarded the notice. I note once again that the failure of the appellant to attend the hearing of 2 September 2005 and reasons for its failure to attend that hearing were clearly likely to be key issues at the hearing of its reinstatement application. On this basis, it was in my view open to Senior Member McCabe to draw adverse inferences concerning the conduct of the appellant, it preparedness for the hearing, and its approach to the litigation as a whole, and to take those findings into account in exercising his discretion to dismiss the reinstatement application. 37 Further, on the case before me it appears that the only evidence before the Tribunal as to the merits of the substantive application were submissions by the appellant that its application had strong merits and a good chance of success, and would be supported by documentary evidence. The lack of more substantial evidence before the Tribunal is surprising, as the appellant had clearly anticipated that the merits of the substantive application would be a key issue, but had chosen not to substantiate its case with supporting evidence. In my view the Tribunal was entitled to make its findings concerning the merits of the substantive case and the scanty nature of the evidence in support of those claimed merits, and to cite this as a ground for exercising the discretion to dismiss the reinstatement application. 38 I note again that the Tribunal is vested with a discretion in s 42A(9) to reinstate applications 'if it considers it appropriate to do so'. That discretion is not unfettered, but must be exercised reasonably (Brennan CJ in Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, cf Lord Greene in Wednesbury , Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342 at 368, and, for an historical perspective to this issue, the cases discussed in M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd edn, Lawbook Co, 2004, pp 88-93. However in this case it is difficult to form any view other than that, in finding that: • the appellant had provided explanations as to its non-appearance which were without foundation (par 8), and which had turned out to be untrue (par 12) • the appellant appeared to be treating the AAT with indifference (par 8) • the reinstatement application did not address the merits of the case, which was one of the important issues before the Tribunal at the hearing (par 12) the Tribunal made findings which were open on the case before it. Certainly, the decision of the Tribunal to dismiss the application for reinstatement could not be described as so unreasonable that no reasonable authority could ever have come to it. 39 Accordingly, the decision of the Tribunal is not unreasonable in the Wednesbury sense. In my view, the Tribunal in this case has not acted in a manner which gives rise to an error of law, either in refusing to allow an adjournment in relation to the production of Mr Summerville's email, or in dismissing the application for reinstatement. ORDER: 1. The appeal be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 31 October 2006 Counsel for the Appellant: M Plunkett and K Williams Solicitor for the Appellant: Tanya Cirkovic & Associates Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 June 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1406.html


case_text: I note again that the Tribunal is vested with a discretion in s 42A(9) to reinstate applications 'if it considers it appropriate to do so'. That discretion is not unfettered, but must be exercised reasonably (Brennan CJ in Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, cf Lord Greene in Wednesbury , Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342 at 368, and, for an historical perspective to this issue, the cases discussed in M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd edn, Lawbook Co, 2004, pp 88-93. However in this case it is difficult to form any view other than that, in finding that: • the appellant had provided explanations as to its non-appearance which were without foundation (par 8), and which had turned out to be untrue (par 12) • the appellant appeared to be treating the AAT with indifference (par 8) • the reinstatement application did not address the merits of the case, which was one of the important issues before the Tribunal at the hearing (par 12) the Tribunal made findings which were open on the case before it. Certainly, the decision of the Tribunal to dismiss the application for reinstatement could not be described as so unreasonable that no reasonable authority could ever have come to it.


case_outcome: considered


case_title: Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1


case_text: It also follows that the manner in which the litigation had been conducted by the appellant, including being taken by surprise at such a fundamental piece of evidence, was a factor which the Tribunal could reasonably take into account in finding that the appellant had treated the Tribunal with indifference (cf Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 per Wilcox and Gummow JJ and Sheikholeslami v Brungs [2006] FCA 933 per Tamberlin J at [15]-[17]). The Tribunal was, in my view, entitled to take this history into account in considering whether it was 'appropriate' to reinstate the application within the meaning of s 42A(9) AAT Act. In this respect I note comments of Professor D Pearce in his book, Administrative Appeals Tribunal , LexisNexis, Butterworths, 2003, p 122, cited by the Tribunal in its reasons for decision.


case_title: Manoli v Secretary to the Department of Social Security (1994) 35 ALD 133


case_title: Sheikholeslami v Brungs [2006] FCA 933


case_title: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146


case_text: On or about 3 April 2006 the appellant wrote to the Tribunal requesting written reasons for the decision of Senior Member McCabe given 27 October 2005. Written reasons for decision were made available on 13 April 2006. REASONS OF THE TRIBUNAL 4 Senior Member McCabe indicated in par 6 of his Reasons for Decision that the principles which should be applied in respect of an application for reinstatement pursuant to s 42A(8) and (9) are those suggested by Manoli v Secretary to the Department of Social Security (1994) 35 ALD 133. In summary, the Tribunal must consider: • the conduct of the appellant • any prejudice (most obviously prejudice to the respondent) • the merits of the substantive case and • in considering these matters, the overriding obligation to do what is fair in the circumstances. 5 Applying that approach, the Tribunal: 1. Did not accept that the appellant and Thiel Partners had not received notice of the hearing listed for 2 September 2005. 2. Did not accept that the appellant had a good excuse for failing to attend the original hearing on 2 September 2005 at which the case was dismissed. 3. Found that the interests of the respondent were not prejudiced by the delay attending the review, however some prejudice to the interests of the respondent could accrue if the appellant's claim was not prosecuted expeditiously. 4. Found that the appellant's interests would be prejudiced if the Tribunal did not allow reinstatement because it would be unable to continue its challenge to the decision under review. 5. Was of the view that the merits of the case had not been substantiated beyond an assertion by the appellant that it had good prospects of success. 6. Found that the failure of counsel appearing for the appellant at the hearing to explain the discrepancy between the contentions in the outline and the facts as they emerged at the hearing 'must count against the appellant' and that the appellant was treating the Tribunal with 'indifference'. 7. Found that 'the excuse [the appellant] offered for its earlier failure to attend turned out to be untrue'. 8. Was not minded to grant an adjournment to allow the appellant to provide material given the delays that had already occurred. 6 In conclusion, the Tribunal held at par 12: 'The original application was dismissed after the appellant or its representative failed to attend a directions hearing. Its reinstatement application did not address one of the important issues before the Tribunal at the hearing (the merits of the case) and the excuse it offered for its earlier failure to attend turned out to be untrue. It is fair to all the parties in all the circumstances that the application for reinstatement be refused.' APPEAL 7 A party to a proceeding before the Tribunal may appeal to the Federal Court from a decision of the Tribunal only on questions of law: s 44 AAT Act. 8 The grounds of appeal in this case are: 1. Whether the Tribunal erred in law in refusing an application by the appellant for an adjournment to place further affidavit material before the Tribunal and therefore denying the appellant opportunity to properly prosecute the application for reinstatement: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 2. Whether the Tribunal erred in law in respect of the order made 27 October 2005, and the dismissal of the appellant's application to reinstate the application for review: a. by not giving the appellant the opportunity to explain the circumstances of its non-appearance at a hearing held 2 September 2005 at which the Tribunal directed that the application be dismissed pursuant to s 42A(2) of the AAT Act b. by failing to consider the prejudice to the appellant in the circumstances and that any prejudice to the respondent could be remedied by the operation of the Taxation Administration Act 1953 (Cth). 3. Whether the Tribunal erred in law in respect to the orders made 27 October 2005, in that the Tribunal has made a decision that is unreasonable. SUBMISSIONS OF THE APPELLANT 9 The appellant submits that the crucial error of the Tribunal appears at pars 7, 8, 9, 10, 11, 12 of the Written Reasons for Oral Decision of the Tribunal. In summary the appellant submits that: • The Tribunal failed to give the appellant a reasonable opportunity to be heard in relation to the email from Mr Summerville. The appellant relied on s 39 AAT Act which provides that a Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. • The Tribunal has the power to grant an adjournment at any time and that the efficient running of the court should not prevail over the injustice of preventing the appellant from responding to an adverse inference. • The email that was presented to the appellant at the application for reinstatement was information that was adverse to the interests of the appellant, and was used by the Tribunal to make very serious findings against the appellant going to its credit and integrity. • There may be several reasonable explanations that the appellant can offer in respect of the email. • Although the Tribunal has a duty to discharge its obligations in an expeditious manner (s 33(1) AAT Act), the needs of case management do not derogate from the requirements of procedural fairness: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. • Refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting its case: Sullivan v Department of Transport (1978) 20 ALR 323. • The Tribunal wrongly denied the appellant the opportunity to fully present its case, and denied the appellant procedural fairness. • The decision of 27 October 2005 and the reasons given on 13 April 2006 in relation to reinstatement were unreasonable in that the reference to the adjournment was in relation to material supporting the merits of the case, and not in response to the email evidence that related to the conduct of the appellant. While the Tribunal must be minded to delays and prejudice caused by delay, it must not subordinate that interest to the need for procedural fairness. • The Tribunal acted in error by reaching conclusions which were not open to it, and without any reasonable or logical basis, and committed manifest Wednesbury unreasonableness. RESPONDENT'S SUBMISSIONS 10 In summary, the respondent submits that: • Procedural fairness only requires that a party be given a reasonable opportunity to present its case, not that a Tribunal ensure that a party takes the best advantage of the opportunity to which it is entitled: Sullivan v Department of Transport (1978) 20 ALR 323. • It is relevant to enquire whether the party or its legal representative should have reasonably apprehended that the issue was or might become a live issue ( Re Building Workers' Industrial Union (Aust); Ex parte Gallagher [1988] HCA 4 ; (1988) 76 ALR 353 at 357) and in this matter the appellant did not file any material with the Tribunal in support of its application for reinstatement. • It was clear that the appellant was aware of the issue of its non-appearance at the directions hearing on 2 September 2005, that this was a live issue, and that a reasonable explanation and evidence of the reasonable explanation for this non-attendance would be required to be put before the Tribunal. • The only evidence before the Tribunal at the reinstatement hearing was the email from Mr Summerville to Ms Dimitrijevski. Although, as the appellant submits, there may be several reasonable explanations that the appellant could offer in respect of the document, the appropriate time to provide any explanation was at the reinstatement hearing. • There was no denial of procedural fairness by the Tribunal. • In this case it was open on the material before it for the Tribunal to make the findings of fact that it made, and the decision of the Tribunal was not unreasonable in the Wednesbury sense and therefore no error of law was made out. ISSUES BEFORE THIS COURT 11 There are essentially two issues of law which arise in respect of the appellant's notice of appeal, namely whether the appellant has been denied procedural fairness by the Tribunal and whether the decision of the Tribunal was unreasonable in the Wednesbury sense. 12 The application by the Tribunal of the principles articulated in Manoli was not in dispute. 13 I propose to deal with each issue in turn. WAS THE APPELLANT DENIED PROCEDURAL FAIRNESS BY THE TRIBUNAL? 14 The appellant has strongly urged the Court, both in written and oral submissions, to allow the appeal on the basis that it was denied procedural fairness by the Tribunal, both in relation to the Tribunal refusing an adjournment to allow Counsel for the appellant to take instructions in relation to the email produced at the Tribunal hearing, and in relation to the decision of the Tribunal to refuse to reinstate the matter under s 42A AAT Act. 15 The appellant in this case is subject to a significant administrative penalty. It is entitled to dispute that penalty, and to receive a fair hearing in so doing. 16 There is no question that, as explained by Mason J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584, there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations. In the context of decisions for which provision is made by statute, his Honour went on at 585: 'In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...' 17 Brennan J in Kioa discussed the principles concerning a party having an opportunity to deal with matters relevant to its case as follows: (at 628) 'A person whose interests are likely to be affected by an interest of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise .... The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.... (629) Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made...' 18 These principles were affirmed recently in different contexts by the High Court in Applicant VEAL of 2002 v MIMIA [2005] HCA 72 ; (2005) 222 ALR 411 and by the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 ; (2003) 133 FCR 89. 19 In this case the reason that the appellant's substantive application before the Tribunal was dismissed under s 42A(2) AAT Act on 2 September 2005 was that the appellant did not appear at the hearing on that day. Section 42A(2) provides: '(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or (b) in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.' 20 There does not appear to be any dispute that the Tribunal was empowered to dismiss the appellant's application on 2 September 2005 in view of the appellant's non-appearance at that hearing. 21 It therefore follows that it was obvious that issues and evidence relevant to the non-appearance of the appellant on that day would have been critical at the reinstatement hearing of 27 October 2005, and that ensuring that all appropriate inquiries had been made by the appellant, and that their Counsel was properly briefed as to this issue, would be important in the conduct of that hearing. 22 As stated by Mason J in Kioa , it is important to consider the issues of procedural fairness as appropriate and adapted to the circumstances of the particular case. 23 Here, the Tribunal on 27 October 2005 had before it a case where, notwithstanding that the case was being prosecuted by the appellant: 1. Over the course of eight months, the appellant had a history of failing to attend hearings. Indeed out of four hearings listed, the appellant attended only one, and another was vacated at its request. 2. The appellant failed to comply with deadlines, including those which it had requested. 3. The notice of the hearing of the substantive matter was sent by the Tribunal to Mr Summerville, the nominated representative of the appellant, in accordance with the AAT Act. Section 68AA(1) provides, so far as relevant: 'For the purposes of this Act: (a) a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable: (i) if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation the proceeding may be sent that address ... ... (b) a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.' 4. There does not appear to be any dispute that, at the time, Mr Summerville was properly served with the relevant notice of listing by the Tribunal, or that, as a result for the purposes of s 68AA(1), the appellant was properly served with that notice. 5. It is very clear that critical issues for the appellant in the reinstatement proceedings on 27 October 2005 were the merits of the substantive application which had been dismissed on 2 September 2005, and why the appellant had not appeared at the hearing of 2 September 2005. 6. In relation to the merits of the substantive case the appellant submitted before the Senior Member at the hearing on 27 October 2005 that: • its case had 'strong merits and a good chance of success' • it intended to show that, on a proper consideration of all the facts, it was not liable for the GST in respect of which it had been assessed • it would show that it was not liable for the GST and penalties imposed by the respondent by means of substantial documentary evidence • it would show that the monies received by it in respect of which GST and penalties had been levied had been refunded in total. 7. Other than those assertions, no material was provided to substantiate the claim of the appellant that its case had 'strong merits and a good chance of success'. 8. In relation to its failure to appear at the hearing of 2 September 2005, the appellant submitted in writing before the Senior Member at the hearing of 27 October 2005 that: • the appellant, and, to the best of the appellant's knowledge, Mr Summerville, did not receive any listing for the hearing held by the Tribunal on 2 September 2005 • in the event that Mr Summerville did receive the listing for 2 September 2005, the appellant was not informed of the listing by Mr Summerville • the appellant believed that the reason that neither it nor, to the best of its belief, Mr Summerville, did not receive any listing for the hearing arose from the change of representation in the matter • as the appellant had not received a listing for the hearing, the appellant was unable to arrange for itself or a representative of itself to attend the hearing • if the appellant had received a listing of the 2 September 2005 hearing, the appellant would have attended or arranged for a representative to attend the hearing, or otherwise have informed the Tribunal. 9. However, notwithstanding these submissions, the respondent was able, seemingly without difficulty, having inquired of Mr Summerville, to produce evidence that Mr Summerville had forwarded the notice of listing of 2 September 2005 to the appellant, and had indicated that he intended send on the original notice. 24 In view of the history of this matter, that Counsel for the appellant was taken by surprise by the email was extraordinary. It was particularly astonishing in light of the facts that: • presumably, in advance of the hearing of 27 October 2005 the appellant could have asked Mr Summerville whether he had received the notice of listing, as the respondent did • although the issue of the appellant's non-attendance on 2 September 2005 was decisive in the dismissal of their application on that date, it appeared that the appellant had not taken that elementary step as its Counsel was unprepared for that evidence to be produced • the appellant for unknown reasons was prepared to make submissions that to the best of its knowledge neither it nor Mr Summerville had received the notice of listing, without apparently ascertaining from Mr Summerville whether that was the case. 25 As Deane J observed in Sullivan at 343: '(I)t is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.' 26 In my view, the Tribunal was entitled to take into consideration not only the approach the appellant had taken to the case as a whole, but also what appeared to be the approach of the appellant to the case before it on 27 October 2005. While as a general rule it may be appropriate, on the production of new evidence which surprises one of the parties, for the Tribunal to permit an adjournment for the party to have the opportunity take instructions or consider its position, in the circumstances it is difficult to find otherwise than that the appellant had been provided with a reasonable opportunity to present its case.


case_text: minute of a proposed further amended statement of claim was filed by QPSX on 15 August 2006. In contemporaneous submissions it was described as containing a number of minor amendments to the amended statement of claim already before the Court. It is convenient to set out the proposed further amended statement of claim in outline. The summary that follows reproduces the summary of the amended statement of claim set out in QPSX Limited v Ericsson Australia Pty Ltd (No 3) [2005] FCA 933 with adjustments to reflect the proposed additional amendments. The summary outlines the allegations made by QPSX. For convenience it is presented in narrative form. It involves no finding of fact. QPSX, QPSX Communications and QPSX Europe each carry on business 'licensing and otherwise commercialising intellectual property'. That business is carried on in Australia and internationally by QPSX and QPSX Communications. QPSX Europe carries on its business outside Australia. The Ericsson parties and the Longreach parties are all involved in the manufacture and supply of communications products and services (pars 1 to 7). QPSX Communications is the registered patentee of patents in the United States of America, Australia, Canada and the United Kingdom. These are known as the QPSX Communications SAR Patents. QPSX Europe holds a patent in Germany, known as the QPSX Europe SAR Patent. Each of the patents relates to a method and apparatus for segmentation and reassembly technology. This involves the transmission of variable length messages on a network from a source to a destination in fixed length slots which include a header field and a message segment. Steps involved in the method are pleaded and registration dates and numbers of the various patents are particularised (par 8). Further patents are held by QPSX Communications in the USA, Australia, Canada, the UK and Germany (QP Patents). They involve a queuing protocol for a communications network for queued transmission of information in packets. The network composition is set out and particulars of the patents given (par 9). The method and apparatus which are the subjects of the SAR Patents and the protocol which is the subject of the QP Patents are integral parts of a Distributor Queue Dual Bus Technology which is also known as a Queued Packet and Synchronous Exchange Technology. This technology has been an integral part of the international telecommunications standard approved by the Institute of Electrical and Electronics Engineers for metropolitan area networks since 1988 (par 10). Another protocol known as Asynchronous Transfer Mode (ATM) is described as the networking standard for high speed, high capacity voice, data, video and graphics transmission. The method the subject of the SAR Patents is said to be a fundamental element of the ATM protocol and to be incorporated into the International ATM's Standards set by the International Telecommunications Union (par 11).


case_text: appellants raised thirteen grounds of appeal against the decision of Nicholls FM, which are reproduced literally below: 'The Learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal[:] 1. The appellants state that the Refugee Review Tribunal and the Federal Magistrate[s] Court committed jurisdictional error in reaching the conclusion that the Appellants are not entitled to Protection Visa[s]. 2. The Refugee Review Tribunal and the Federal Magistrate[s] Court failed to note that the appellants satisfy the definition of "Refugee" as defined in Article 1A(2) of the Convention. To go further the Tribunal and the Federal Magistrate failed to see that the appellants satisfy the four key elements that are required to satisfy the Convention definition. The appellants states [ sic ] that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa [ sic ]. The first element applicant must be outside his country. The second element the applicant must fear persecution. If the applicants returns [ sic ] to their home country their life would be in danger. They will be chased and killed. The third element the persecution that the applicant fears must be for one or more reasons enumerate [ sic ] in the Convention definition race, religion, nationality, membership of a particular social group or political opinion. The applicant fulfils this. The fourth element the fear of persecution for a Convention must be a 'well founded' fear. The applicant fulfils all the four elements. The Federal Magistrate[s] Court and the Tribunal, which has described these in its decision, have failed to take note of this. 3. The Tribunal had failed to consider the facts in the correct way. If the appellant [ sic ] return to the country he [ sic ] will be targeted by the Samara group. 4. The Tribunal failed to see that Mr Samara was a cabinet Minister and he has links all over the country. The authorities and officials who have to protect the appellant and his family failed in their duty. The Tribunal miserably failed in referring to a so-called independent source in page 7 of its reasons. The Federal Magistrate[s] Court has not considered this also and has merely agreed to the Tribunal's decision. 5. The Federal Magistrate made an error by accepting that the Tribunal's finding that the applicant could relocate to any other part of India. 6. The Federal Magistrate made a legal, factual and jurisdictional error in not properly applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. 7. The Federal Magistrate failed to see that the appellant had a fear of persecution in his home country and that persecution is well founded. 8. The Federal Magistrate and the Tribunal should have seen that English is the main language used everywhere in India. Therefore the appellant feels comfortable in an English speaking country like Australia than other states in India which have other languages and culture. 9. [The] Tribunal before advising the applicant to relocate to other parts of the country should have relied on some independent source to find the truth stated in that point. The Federal Magistrate has not considered this point and made an error. 10. The Federal Magistrate failed to see that the Tribunal failed in relying on some country information provided by foreign sources. The Federal Magistrate should have seen the Tribunal had not given priority to the real factual situation and should not have relied on unrealistic third party statements. 11. The Tribunal and the Federal Magistrate have accepted the points that would be helpful to them to dismiss the case. But have conveniently by-passed the real situation. 12. A reading of the Federal Magistrate's reasons shows that the Federal Court had decided to dismiss the case even before completely hearing it. 13. As the matter has been decided by the Tribunal and the Federal Magistrate without considering the real facts and circumstances from jurisdictional error.' It will be seen that those so-called grounds of appeal constitute either purported complaints as to factual findings or conclusions, or unspecific complaints in relation to subject matters said not to have been addressed by the Tribunal and the Federal Magistrates Court. Nicholls FM recorded that '[o] nly the applicant husband made specific claims under the Refugees Convention' , and that the basis of his claim to refugee status was his influential membership of the Akali Dal Party since 1997; his election as vice-president of the local Karyana Association; and his participation at political rallies. He further testified as to divisions within his Party into two factions: the "Badal" and the "Tohra" factions, and that he supported the Tohra faction. The first appellant also claimed the police started 'to give him trouble' following the loss of the election in 2002, and the swearing in of Mr Samara as 'Cabinet Minister' in the new Government. Other grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits' , and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make... enquiries... nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407. The Minister submitted in summary, by way of reasons for rejection of the grounds of appeal postulated by the appellants and summarised in [3] above, as follows: (i) the grounds of appeal summarised in [3(1)] and [3(2)] above were meaningless without the particularisation which they lacked; (ii) the grounds of appeal summarised in [3(3)], [3(4)], [3(5)] and [3(9)] above constituted new grounds of appeal not raised by the appellants before Nicholls FM, and should not be allowed in the context of the appeal in the absence of exceptional circumstances being demonstrated; I was referred in that regard to the well known passage in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 (Gibb CJ, Wilson, Brennan and Dawson JJ), where the following appears inter alia : 'In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards... .' The Minister emphasised that the appellants had provided no explanation as to why those new grounds were not raised before Nicholls FM, and moreover that it was not in the interests of other litigants, whose appeals require hearing and determination, and of the broad public interest in efficient judicial administration, to allow those new grounds to be argued and determined, reference being made to five decisions of this Court in relation to migration litigation, the most recent being that of NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCR 51 at [162] (Madgwick J); (iii) the grounds summarised in [3(2)], [3(4)], [3(7)], [3(8)], [3(9)] and [3(10)] above pleaded errors in the Tribunal's consideration of the merits; merits review being impermissible in the context of determining whether the Tribunal's decision was a decision made under the Act; I was referred in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272; moreover the weight that the Tribunal may give to some evidence compared to other evidence was a matter for the Tribunal, and it was not for the Court to determine the appropriate weight to be given thereto; I was referred generally in that regard to the reasons for decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24; (iv) as to the grounds summarised in [3(5)], [3(6)] and [3(9)] above, the Tribunal gave proper consideration as to whether, as a practical matter, the appellants could genuinely access domestic protection in India, and whether that protection was meaningful; the Tribunal observed specifically that the appellant husband/father was a well educated young man with the ability to speak three languages, and moreover that country information demonstrated as implausible his claims that he could not relocate safely within India, and found that there was nothing to suggest that any attempt had been made to locate him since he had left his home town; in those circumstances it was submitted that the Tribunal gave proper consideration to the appellants' relocation within the principles enunciated in Randhawa at 270 (per Black CJ with whom Whitlam J agreed); (v) the grounds summarised in [3(4)], [3(11)], [3(12)] and [3(13)] were essentially claims as to his Honour's bias, whereof there was no evidence; moreover there was no suggestion in the evidence that the appellants were not given an opportunity to present their case or were somehow overborne by the Tribunal or the Federal Magistrates Court; an allegation of actual bias carries of course a heavy onus and must clearly be established see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531.


case_text: grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits' , and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make... enquiries... nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407.


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_text: Minister submitted in summary, by way of reasons for rejection of the grounds of appeal postulated by the appellants and summarised in [3] above, as follows: (i) the grounds of appeal summarised in [3(1)] and [3(2)] above were meaningless without the particularisation which they lacked; (ii) the grounds of appeal summarised in [3(3)], [3(4)], [3(5)] and [3(9)] above constituted new grounds of appeal not raised by the appellants before Nicholls FM, and should not be allowed in the context of the appeal in the absence of exceptional circumstances being demonstrated; I was referred in that regard to the well known passage in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 (Gibb CJ, Wilson, Brennan and Dawson JJ), where the following appears inter alia : 'In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards... .' The Minister emphasised that the appellants had provided no explanation as to why those new grounds were not raised before Nicholls FM, and moreover that it was not in the interests of other litigants, whose appeals require hearing and determination, and of the broad public interest in efficient judicial administration, to allow those new grounds to be argued and determined, reference being made to five decisions of this Court in relation to migration litigation, the most recent being that of NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCR 51 at [162] (Madgwick J); (iii) the grounds summarised in [3(2)], [3(4)], [3(7)], [3(8)], [3(9)] and [3(10)] above pleaded errors in the Tribunal's consideration of the merits; merits review being impermissible in the context of determining whether the Tribunal's decision was a decision made under the Act; I was referred in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272; moreover the weight that the Tribunal may give to some evidence compared to other evidence was a matter for the Tribunal, and it was not for the Court to determine the appropriate weight to be given thereto; I was referred generally in that regard to the reasons for decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24; (iv) as to the grounds summarised in [3(5)], [3(6)] and [3(9)] above, the Tribunal gave proper consideration as to whether, as a practical matter, the appellants could genuinely access domestic protection in India, and whether that protection was meaningful; the Tribunal observed specifically that the appellant husband/father was a well educated young man with the ability to speak three languages, and moreover that country information demonstrated as implausible his claims that he could not relocate safely within India, and found that there was nothing to suggest that any attempt had been made to locate him since he had left his home town; in those circumstances it was submitted that the Tribunal gave proper consideration to the appellants' relocation within the principles enunciated in Randhawa at 270 (per Black CJ with whom Whitlam J agreed); (v) the grounds summarised in [3(4)], [3(11)], [3(12)] and [3(13)] were essentially claims as to his Honour's bias, whereof there was no evidence; moreover there was no suggestion in the evidence that the appellants were not given an opportunity to present their case or were somehow overborne by the Tribunal or the Federal Magistrates Court; an allegation of actual bias carries of course a heavy onus and must clearly be established see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531.


case_title: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51


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


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24


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


case_text: J observed at [37] in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , that 'information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the [Tribunal] falls within the exception in s 424A(3)(b) ' , and in order for such information to fall within that exception 'it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information'. That dictum of Jacobson J was subsequently followed by a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [20] , [157] and [219] (Moore, Weinberg and Allsop JJ respectively). The Minister submitted in respect to the dictum of Jacobson J in NAZY that 'the facts and circumstances of each case should be the determining factor as to whether there has been an adoption or republication by the applicant in their application for review of the contents of their application for a protection visa', and further that the 'facts and circumstances' outlined at [18] 'indicate that the appellants adopted... [the] claims made in their application for protection visa in their application for review'. I do not find force in that submission by the Minister, as the combination of those 'facts and circumstances' relied upon by the Minister do not demonstrate, in accordance with NAZY , that the appellant adopted his protection visa application for the purposes of his application for review. As a consequence it appears the Tribunal did breach s 424A(1) by relying upon information contained in the appellant's protection visa application, and by not providing particulars of that information to the appellant.


case_text: J observed at [37] in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , that 'information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the [Tribunal] falls within the exception in s 424A(3)(b) ' , and in order for such information to fall within that exception 'it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information'. That dictum of Jacobson J was subsequently followed by a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [20] , [157] and [219] (Moore, Weinberg and Allsop JJ respectively). However, I do find force in the Minister's further case on the appeal that the Tribunal's finding in respect to relocation was a separate and independent basis upon which the Tribunal affirmed the decision under review. The Tribunal member's use of the words 'in any case', prior to her finding on relocation, demonstrates that it was a separate and independent ground. The existence of such an independent ground is sufficient basis for the withholding of relief: see SZEEU at [233] (Allsop J). Accordingly the appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 20 October 2006 The Appellant appeared in person Counsel for the Respondent: Mr J Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 28 July and 31 August 2006 Date of Judgment: 20 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1374.html


case_text: Sections 147 and 148 are "enacted in the public interest in the administration of justice" and "are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen": Goldie v Commonwealth of Australia [2002] FCA 261 at [36] per French J. Similar observations are applicable to s 151 in my view, and see, to a similar effect, In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55 at [22] .


case_title: In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55


case_title: Salim v Loh [2005] FCA 372

case_text: The progress of this application, and other related applications, to trial has been chequered. That history is described by French J in a decision dated 6 April 2005 ( Salim v Loh [2005] FCA 372). On that occasion French J heard an application by the respondents for the relief which included, the striking out of the statement of claim as it then existed. In his reasons, French J referred to the fact that there had been several previous attempts made to plead a statement of claim and he said at [38]: 'I have a considerable degree of sympathy for the respondents in facing the task of pleading to the [substituted statement of claim] and its proposed successor, the amended [substituted statement of claim] . Some parts use language whose meaning and construction is at best illusive. I fear however, that taking a scalpel to particular paragraphs will simply inflate the expense and delay involved in a proceeding which should have been heard and determined some time ago. It is, in my opinion, necessary to find a way forward in the management of this case that does not involve further undue expense and delay. I propose therefore to allow the applicant's pleading to stand. The amended [substituted statement of claim] may be substituted for it. It will stand as a statement of the applicant's contentions of fact and law. However I will dispense with further pleadings. The respondents will not be required to plead to the amended, [substituted statement of claim] . That, I think, is too onerous a task, given its shortcomings. Rather I will require the respondents to file statements of the contentions of fact and law upon which they each rely in answer to the applicant's case. This will not require them to address the amended [substituted statement of claim] in the way that they would be required to if pleading a formal defence.' 3 French J went on to say at [39]: 'I propose thereafter, consistently with directions previously given in relation to the proceedings in the Federal Magistrates Court, that the trial of the action be on affidavit and/or by the tender of written statements sworn to or affirmed by witnesses called by the parties. Thus the applicant will be required to file all his affidavits and/or witness statements to be relied first and so to disclose the entirety of his case.' 4 French J's comments and directions referred to above, applied both to this application and to a related application, namely WAD 9 of 2004. In application WAD 9 of 2004, the son of the applicants in this application, Iwan Salim, also known as John Salim, seeks relief founded on claims that he was induced to invest monies in a project carried out by the fifth respondent, which I will call the 'ostrich scheme', by misleading and deceptive conduct engaged in by and on behalf of the fifth respondent. 5 In accordance with the directions of French J referred to above, the applicants in this case filed witness statements dated 5 December 2005. It was in response to the filing of those witness statements that this application for summary judgment was brought. 6 The applicants' claims against the third respondent in this application are based upon allegations of the accessorial liability of that respondent for the misleading and deceptive conduct of the fifth respondent. It is alleged that the third respondent was at all material times a director of the fifth respondent. The third respondent submits that as a consequence of the filing of the applicants' witness statements it is now clear that there is no reasonable cause of action disclosed in respect of the claims by the applicants based on misleading and deceptive conduct. 7 The third respondent submits that a perusal of the witness statements shows that there was no conveyance of any representation which was made by or on behalf of the fifth respondent to the applicants, who, as I have said, are the parents of the applicant in WAD 9 of 2004. Further, it is said that there was no evidence that the applicants relied on any representations allegedly made by or on behalf of the fifth respondent. It is also argued that the applicants are precluded from bringing a claim because they suffered no loss. In this regard, the third respondent submits that the applicants' witness statements disclose that the money which was provided for the investment in the ostrich scheme and which was paid to the fifth respondent for that purpose, was paid by the son and not the applicants.