case_title: Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306

case_text: present application made on 19 May 2004 was made under s 39B of the Judiciary Act . In my view there is no relevant distinction to be drawn between an application under s 75(5) of the Constitution and an application under s 39B of the Judiciary Act : Applicant A321 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [13] - [14] (' A321 case '). In each case prerogative or constitutional relief was sought, inter alia, to quash the decision. In Gibbs v Kinna [1998] VSCA 52 ; [1999] 2 VR 19 at 26, Kenny JA with whom Ormiston and Phillips JJA agreed, held that: The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.


case_outcome: followed

case_text: also agree with McInnis FM that the proceedings should be dismissed because of an issue estoppel. Justice Dixon, as he then was, in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 explained the distinction between res judicata and issue estoppel in the following terms: In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. That passage was adopted by Gibbs CJ, Mason and Aicken JJ in their joint judgment in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597.


case_outcome: considered


case_outcome: applied

case_title: Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589

case_text: addition to the above matters I agree with the conclusions of McInnis FM that the application should be dismissed on the basis of the doctrines of res judicata, issue estoppel and Anshun estoppel. I also agree with McInnis FM that the proceedings should be dismissed because of an issue estoppel. Justice Dixon, as he then was, in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 explained the distinction between res judicata and issue estoppel in the following terms: In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. That passage was adopted by Gibbs CJ, Mason and Aicken JJ in their joint judgment in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597. Further, I also agree with McInnis FM that the appeal must fail because of the operation of an Anshun estoppel. The relevant legal principles both in relation to res judicata and estoppel were considered by the Full Court of this Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10. The Full Court said: 36. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium (it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. 37. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun . 38. Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun , there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting "special circumstances": see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. 39. Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson [2000] FCA 870 ; (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance. It seems to me there are no circumstances here, special or otherwise, which would warrant the Court from declining to apply the Anshun principle.


case_text: Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Merkel J held that, in determining whether res judicata applies, the primary question is whether the cause of action in the later proceeding is the same as that which was litigated in the earlier proceeding. For the purposes of res judicata doctrine the term cause of action is to be understood by reference to the substance of the action as distinct from its form: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 418 per Gummow J (affirmed (1993) 43 FCR 510); BC v Minister of Immigration and Multicultural Affairs [2001] FCA 1669 at [34] per Sackville J. For the reasons found by McInnis FM, these current proceedings should be dismissed as the cause of action has been determined in the second Federal Court decision. The doctrine of res judicata therefore, in my view, clearly applies. It does not matter that the re-litigation is intended to be or is based upon arguments that were not previously presented. In the A321 case , Wilcox J held at [18]: It will be apparent that the argument sought to be made confronts significant difficulties. However, I do not think it is appropriate to determine the present application by reference to those difficulties. The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case.


case_text: McInnis FM held, at [32], that the application constituted an abuse of process: Further, however, in my view, that [sic] chronology of events giving rise to the application of the doctrines to which I have referred, combined with the dismissal of the application by Selway J in the Federal Court of Australia on 22 August 2003 against the backdrop of what I conclude to be an application foredoomed to failure provides me with an appropriate basis to find, as I do find, that this application is in any event an abuse of process, applying, as I do, the principles set out by the High Court in Walton v Gardiner . In this appeal, the appellant relies upon the following grounds: 1. The Federal Magistrate erred in not finding that the Refugee Review Tribunal (RRT) committed jurisdictional error. 2. The Federal Magistrate erred in not remitting the matter back to the RRT for further consideration. The appellant stated that he would provide further grounds once the decision of McInnis FM was handed down. No further grounds have been filed, however the appellant filed on 4 October 2006 a submission in support of his position, which is Annexure A to these reasons. In addition, this day the appellant filed a written submission dated 6 October 2006, which is annexure B to these reasons. In my view all the matters raised as relevant considerations by the appellant were considered by the Tribunal in its second Tribunal decision. The application the subject of the second Federal Court decision was made under s 39 of the Judiciary Act . In that application the appellant asserted that there was a denial of procedural fairness. The next application made on 24 December 2002 for constitutional relief pursuant to s 75(5) of the Constitution was dismissed by Selway J in the third Federal Court decision. The appellant there relied upon a number of grounds including, again, a denial of procedural fairness. Finally, in my view, McInnis FM also correctly found the proceedings were an abuse of process. The principles relating to an abuse of process are set out in the decision of the High Court of Australia in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 (' Walton ') at 392-3 as follows : The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (citations omitted) In my view it seems clear that the claim to re-litigate the same application for relief as previously is an abuse of process within the meaning of the term as discussed by Mason CJ and Deane and Dawson JJ in Walton . In those circumstances, the appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 24 October 2006 Counsel for the Appellant: The Appellant appeared in person. His friend, S Wignarajah, made submissions on his behalf. Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2006 Date of Judgment: 6 October 2006 ANNEXURE A SUBMISSION I do strongly contend that the learned Judge erred in his failure to rule that the RRT committed numerous jurisdictional errors. And as a consequence I did not receive a fair trial, and thus was deprived natural justice. One of the pillars of my claim that I was persecuted for political reasons and had a substantial and well founded fear for life and limb of my family and me was the threats, emotional stress, physical violence and the attempt to murder me by JVP supporters. It was the failure of the learned Judge in that he erred to rule that the RRT was bound to take cognisance of the political culture of the JVP and this failure resulted in jurisdiction error. If the RRT had taken into consideration the culture of the JVP, they then would not have arrived at the erroneous conclusions about the incident that occurred in 1990 at the Sinhalese Sports Club when I was the chef and threatened that I must delay the function of the President. Please find below the requisite information that will prove the murderous, vicious and bestial nature of the JVP, a left radical party that believes that Sri Lanka belongs only to the Sinhala Buddhist majority and treats other minority communities such as burghers and Catholics as vermin to be eliminated without compunction. I quote; What Robert Oberst wrote in " Current History " vol.91, 1992 in the article " War without winners in Sri Lanka " as a reaction to the reign of terror of the JVP. " The Government countered the JVP with its own reign of terror. In 1988 death squads believed to be made up of off duty police and army personnel and assisted by some UNP supporters removed young people form [sic] their homes at night. The next day the bodies of these youths would be discovered burnt or mutilated. By July 1989 death squad killings had reached several hundreds a week. The violence terrorised villages by targeting the innocent neighbours and friends of suspected JVP supporters." The equal vicious murderous counter measures adopted by the government is a wonderful indication of the danger that this murderous entity pose to civilised society. So heartless are they, no regard for the sanctity of human life that in the 1980s in their reign of terror they compelled many government hospitals totally closed. Doctors and medical staff fled for their lives. And hundreds of patients on life support systems were chased home. The vast majority succumbed even before they reached home. Failure to consider such relevant information led the RRT to erroneously conclude that the incident in 1990 did not occur, and then the RRT moved on to erroneously conclude that my statement of abuse and threat to life did not take place. The learned judge erred in that he did not rule that the RRT did commit jurisdictional error in its failure to take into account this most relevant information, although it was bound to have taken such information into account. One can judge the damage done to me for the RRT concluded that this incident was not plausible because I failed to report this threat immediately to have them arrested by the Security Forces. This is as logical as faulting a chef in the mafia capital in Sicily for not immediately reporting a mafia gangster to the boss, for requiring the chef to delay a function for the politician. The learned Judge erred in that he did conclude that there was no jurisdictional error when the RRT failed to take into consideration relevant information in regard to the incident of the planned ambush when my wife and I were thrown from our motorbike and grievously assaulted. I was bashed, my hand broken, and stabbed in the neck and leg. The RRT erroneously concluded that it was a random criminal attack. It was not a random criminal attack. It was pre planed [sic] and meditated. Exactly at a certain point an empty three-wheeler was pushed into our path late at night at a lonely spot. It was not criminal. We wore jewellery, wristwatches and had cash. None were touched. Where was the criminal intent? Where was the criminal follow up? After we were unconscious I was left to bleed to death. The Judge erred in not concluding that the RRT made an erroneous finding. This error was most damaging as this incident was indisputable evidence of persecution and possible death for our political convictions. When our house was vandalised by a gang in 1997 the Judge erred in his failure to rule that the gang who absolutely thrashed our house, did so for only criminal reasons. The Judge erred in that he did not find that the RRT came to an erroneous conclusion. On the facts it was obvious that it was politically motivated. If the motive was criminal. They would not waste valuable time endangering their safety. In regard to my position being chef at the SSC the learned judge erred in that he concluded that the RRT did not commit jurisdictional error that my position was not a plausible reason for being targeted for political persecution. The SSC was the haunt for UNP politicians, so much so that government security was provided. Presidents and Prime Ministers have their private functions there so often. I was a prominent person moving in the echelons of government power. On these facts the RRT arrived at an erroneous concluded [sic] that I was not targeted for political reasons. In this the Judge erred that the RRT was not bound to take this information into consideration and thus committed jurisdictional error. The learned Judge erred in that he did not conclude the failure to the RRT to take into account the report of the Victoria Foundation of survivors of Torture in Cooperation was jurisdictional error. The report is expressly clear " The applicant was suffering from survivor symptoms of post traumatic disorder and depression. His depression manifest as extreme grief, tearfulness, and feelings of helplessness. He is constantly anxious due to his fear of returning to Sri Lanka. It is my opinion that these symptoms are the direct result of his experiences of persecution in Sri Lanka. " The Judge erred in that he did not consider that the RRT was bound to consider such vital information given by an impartial expert in her field. The RRT arrived at an unreasonable conclusion and the Judge erred in not concluding such conclusion did constitute jurisdictional error. The learned Judge has ruled that I was seeking to re agitate facts previously raised and considered by the RRT. (Page 6). I submit respectfully that I was not re agitating facts but only pleading that on the incidents accepted to have occurred by the RRT, the RRT failed to take them into consideration when bound to do so and thus committed jurisdictional error. The learned Judge ruled (page 8) " That once a [sic] issue has been determined according to law and all rights of appeal have been exhausted that should be an end of the matter. " I believe I was not granted natural justice because the RRT decision was not a decision determined by law, but was erroneous because of numerous jurisdictional errors. I do believe I was denied natural justice in that the Judge erred when he failed to conclude; a) That the RRT committed jurisdictional errors when it failed to take into account relevant information which it was bound to take into consideration. b) The Judge erred in that he failed to conclude in that the RRT committed an error in law that it demanded a standard of proof that was unrealistic, unreasonable, and impracticable. c) The Judge erred in that it failed to conclude that the RRT reached erroneous conclusions unsupported by evidence that was crucial to the final determination. d) The Judge erred in that he did not conclude that the RRT misunderstood the criteria for the grant of a protection visa. The RRT erred because the notion of persecution in appropriate cases involves the single act of oppression. The criteria demanded that there be some significant detriment or disadvantage. I did suffer significant detriment and disadvantage. i.e. Lost a great career, deprived of a lucrative employment in the Maldives, and bashed, stabbed and left to bleed to death. For all the reasons mentioned above I do believe that the learned Judge did err in not concluding that the RRT did commit numerous jurisdictional errors and other errors in law thus deprive me of natural justice. ANNEXURE B Further to the submission I handed over on 3 rd October 06 I wish to hand over information relevant to that submission. I apologise for the inconvenience caused in not submitting this information on that date. I do believe that we did not receive a fair trial because of the bias of the RRT. My wife's GP gave the RRT a letter that mentioned she should not be I quote "questioned under pressure situations as it could make her anxiety level high, resulting in diabetes worse or make her depressed". This was not a statement open to conflicting opinion between doctors. It was not a statement of medical complexity. It was a clear concise and unambiguous statement. Why then did the RRT confirm "in view of the above statement provided only at the hearing and therefore unable to be confirmed with another doctor, in this time frame the applicant was asked very few questions." (Page 10). Why the need to test the veracity of a simple, precise medical statement? We believe the RRT concluded we were dishonest, attempting to cheat and deceive the RRT. We believe that an inaccurate entrenched mind-set of our character and integrity prevented an impartial decision. We believe that the learned Judge erred in that he should have concluded that we therefore did not receive an impartial decision. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1387.html


case_text: relevant legal principles both in relation to res judicata and estoppel were considered by the Full Court of this Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10. The Full Court said: 36. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium (it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. 37. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun . 38. Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun , there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting "special circumstances": see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. 39. Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson [2000] FCA 870 ; (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.


case_text: In Luna Park Sydney Pty Limited v Bose [2006] FCA 94 , Jacobson J at paras 16 through to and including 18 remarked as follows: 16. It was until recently well settled that there was no presumption upon default of the respondent of the correctness of the applicant's claims: see Commissioner of Taxation v Finn [1960] HCA 69 ; (1960) 103 CLR 165. 17. It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v Roadhouse Productions (2001) 190 ALR 288 per Stone J. 18. However, recent authorities indicate that the introduction of Order 35A provides the foundation for a finding that in the absence of a defence where there is a pleading by way of a statement of claim then the facts in the statement of claim are admitted.


case_outcome: cited

case_title: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856

case_text: Examples of the recent authorities which would fall within the class described by Jacobson J are: Australian Competition and Consumer Commission v 1Cellnet Limited Liability Company [2005] FCA 856 and Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7. Another more recent example of the type of case described by Jacobson J in terms of the ability to grant judgment under O 35A r 3(2)(c) is The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133.


case_title: Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7


case_title: The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133


case_text: Trite though it may be, I note that s 154 of the Act confers jurisdiction upon this court with respect to matters arising under the Act . The Act does not contain a section which expressly empowers the court to order the delivery up of infringing products. This particular feature of the Act , in contradistinction to s 116 of the Copyright Act 1968 (Cth), was noted by Einfeld J in Roussel Uclaf v Pan Laboratories Proprietary Limited [1994] FCA 1176 ; (1994) 29 IPR 556. 22 His Honour further noted, however, that this court has general power to make an order for delivery up of that kind in accordance with established principles of equitable relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). That section provides that the court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the court thinks appropriate. I note, further, s 5(2) of the Federal Court of Australia Act 1976 , which provides for this Court to be a superior court of record and a court of law and equity. 23 I am quite satisfied, having regard to ss 5 and 23 of the Federal Court of Australia Act 1976 , that I have power to make order 2 of the orders sought. Power to make order 3 is derived, in my opinion, from a combination of s 122(1) of the Act and ss 5 and 23 of the Federal Court of Australia Act 1976 . Orders 4 and 5, as described earlier, are ancillary, and power to make them is to be found, in my opinion, in s 23 of the Federal Court of Australia Act 1976 . 24 Some further comment should be made in respect of the form in which the restraint proposed is cast. In Atkins Court Forms , Second Edition, Volume 30, 1979 issue, page 192, paragraph 67, the learned authors of that English text state as follows: Account of Profits The plaintiff in an infringement action is entitled, at his option, to an account of profits in lieu of damages. Where there is a consent or default order, there having been no full court hearing with consequent guidance as to what constitutes an infringement, the orders should be narrowly framed.


case_text: The position in Australia in respect of an Applicant in an infringement application being entitled by election to an account of profits in lieu of damages is no different. In respect of the last sentence in the passage quoted, the learned authors cite Walker v Wilson Doors (Sales and Contracts) Limited (1964) RPC 246. Regard to that case discloses that it reports an exchange between Lloyd-Jacob J and counsel in relation to the form of a restraint order. His Lordship was concerned in the making of an order that the restraint not be cast overly widely. The restraint that had been proposed, albeit by consent, was one whereby the defendants would be restrained, whether by their directors, officers, servants or agents, or any of them or otherwise howsoever from infringing the plaintiff's letters patent numbered. 26 His Lordship remarked, at page 247: I am aware that this has been a common form of order in the past. In fact, I know because bitter experience has taught us, that it might well result in a dispute between the parties that has to be fought in contempt proceedings and might easily arise where parties have really got a genuine difference as to what is and what is not within the scope of the patent. 27 I am conscious that this is a default proceeding. It seems to me that the form of order which is proposed in this instance does not suffer from the vice of generality of the kind which occasioned concern to Lloyd-Jacob J. 28 It may prove to be the case that upon the filing of the affidavit of the kind described in para 4 of the proposed orders that more detailed direction is needed in respect of the taking of accounts. It seems to me, therefore, that it is appropriate to adjourn the substantive application to a date to be fixed, as well as adjourn the notice of motion to a date to be fixed, and to grant to the parties liberty to apply, both particularly in respect of or in relation to the taking of an account and otherwise generally in relation to the further conduct of the proceeding. 29 At the request of counsel for the Applicants, I shall in the formal orders add the words "in Australia" after "setting" in paragraph 1 and "predicts" in paragraph 2. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 28 April 2008 Counsel for the Applicants: Ms K Downes Solicitor for the Applicants: Legal IT Counsel for the Respondent: No appearance for the Respondent Date of Hearing: 18 April 2008 Date of Judgment: 18 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/569.html


case_text: I have been taken carefully through the scheme documents themselves and, subject to one matter, I have no difficulty with them. In the course of the hearing I raised with counsel the issue of the warranty said to be given by the party whose shares or options are affected. As counsel has said, clauses along those lines have been approved or have been included in schemes approved in recent times by judges of this Court, the Supreme Court of New South Wales and the Supreme Court of Queensland, albeit misgivings or doubts having been expressed about the effect of such a clause (eg Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 at [20] [29]). I also have doubts but I do not believe that it is likely that the inclusion of such a clause would lead to any difficulty about confirmation of these schemes. Against the possibility of somebody coming along and arguing the matter, I cannot, of course, make a final judgment about that. Even if a draconian view were taken about that clause, it is hardly fundamental to these transactions in particular, because they are not at arm's length with parties that might be in contention, but, rather, they represent an internal restructure. 4 I have been taken carefully through the information memorandum and to the material which backs that memorandum including the expert report and the underlying advices which are directed to two topics of significance. The first is that of tax and the second is that of corporate governance, bearing in mind the different regimes in Australia, on the one hand, and Delaware, on the other. As will be appreciated, the question in the expert report is rather different from usual. The financial structure, except perhaps for costs incurred in the course of the transaction, effectively remains the same before and after. The assessment of whether to vote for the change of location will be governed by matters other than the immediate economic consequences to the company. It will involve a broader assessment by investors as to whether they wish to become part of the restructured operation and, if so, how they should do so, noting that there is, if the scheme is approved, an alternative between holding CHESS depository instruments (CDIs) listed on the Australian Securities Exchange, on the one hand, and the American securities listed, hopefully, on the NASDAQ Stock Market on the other. 5 For those reasons I make orders in accordance with the short minutes of order which I have initialled. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 3 September 2007 Counsel for the Plaintiff: Mr TF Bathurst QC Solicitor for the Plaintiff: Corrs Chambers Westgarth Date of Hearing: 23 August 2007 Date of Judgment: 23 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1387.html


case_text: In South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 at 75-77, Olsson J said: [W]here a privileged document is exchanged between two parties with a common interest, both parties are entitled to claim and maintain that privilege. ... It is to be borne in mind that the concept of common interest privilege is invoked so as to counter a suggestion that privilege has been waived by the deliberate release or publication of privileged material, by the party entitled to claim privilege, to a third party. ... [A] joint or common interest is not to be taken as a rigidly defined concept. It spans a variety of potential relationships, including partnership.


case_text: In order for interests to be common, they need not be identical: Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341 (an insured/insurer case).


case_text: In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279-280, Giles J said: If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege. ... Examples of interest sufficient for common interest privilege can be seen in the cases, but the concept is not rigidly defined and it is a question of fact in each case.


case_text: It is not necessary to decide whether documents 5.2 and 5.3 are protected by common interest privilege. It is now common ground that privilege has been waived in relation to them. Subject to the issues canvassed at [17] to [23], in my view common interest privilege attached to the other documents listed at [3] at the time they came into Mr Glover's possession. I accept the applicant's submission that joint venturers are analogous to partners for the purpose of the existence of a common interest. A fiduciary relationship exists between partners. It will often exist between joint venturers. See United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1 at 10-13 and 15-16. As indicated in the cases discussed earlier, "common interest" is not "a rigidly defined concept", and whether it exists in a particular case is a question of fact. Here the evidence, albeit skimpy as the applicant conceded, is that Stage 5 and The Promotions Factory Pty Ltd (Promotions) entered into a joint venture, using the applicant as the joint venture vehicle, to act as the official concessionaire in respect of souvenirs, memorabilia and apparel for the 2006 Commonwealth Games. Mr Glover was provided with copies of the documents in question at about the time each was created in his capacity as a director of Stage 5 and the applicant.


case_text: The respondents submit that Mr Glover's claim to "maintain" the privilege is said to derive from Stage 5's shareholding in the applicant, which is then said to give it an interest in the outcome of the proceeding. They contend that it is a question of fact whether, in a particular case, a shareholder has such an interest, and that in a case such as the present, where the applicant is clearly insolvent, no such interest exists because Stage 5's shareholding is valueless. They rely on Re Bauhaus Pyrmont Pty Ltd (in liquidation) [2006] NSWSC 543 ( Bauhaus ). There, one Widdup was a director of the company in liquidation and the indirect owner of all the company's shares. Justice Austin held that Mr Widdup did not have a common interest in privileged documents given to him because there was no prospect of a distribution to contributors in the winding up. 18 The respondents rely on the matters set out at [10] to show that Stage 5 stands in the same position as Mr Widdup in Bauhaus . The applicant sought to distinguish Bauhaus on the ground that it concerned a liquidator of a company giving privileged documents to a shareholder who, at the time of receipt, had no prospect of a return from the winding up. 19 Section 122(5)(b) of the Evidence Act (set out at [11]) excludes the waiver provisions of sub-ss (2) and (4) in relation to a disclosure to a person who, at the time of the disclosure , shared a common interest with the client. Accordingly, I accept the applicant's submission that common interest is to be tested at the time Mr Glover came into possession of the documents. 20 The party claiming privilege has the onus of establishing the basis of the claim. Order 33 rule 11(1) of the Federal Court Rules provides that: Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. (Emphasis added.) 21 The expression "ground of privilege" is defined in rule 11(5) as a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act . That includes common interest privilege. See s 122(5)(b) and Bauhaus at [24]. On onus in relation to client legal privilege in general, see Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 337. The claimant must establish the facts giving rise to the privilege: National Crime Authority v S (1991) 100 ALR 151 at 158-159.


case_text: The expression "ground of privilege" is defined in rule 11(5) as a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act . That includes common interest privilege. See s 122(5)(b) and Bauhaus at [24]. On onus in relation to client legal privilege in general, see Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 337. The claimant must establish the facts giving rise to the privilege: National Crime Authority v S (1991) 100 ALR 151 at 158-159.


case_title: National Crime Authority v S (1991) 100 ALR 151


case_text: Paragraphs 1 and 2 of the notice of motion can be dealt with together. A notice to produce may be set aside on the ground of lack of apparent relevance. The test of apparent relevance is whether the documents are reasonably likely to add, in the end, in some way or another, to the relevant evidence. Relevance in an evidentiary/admissibility sense is not the test. See Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 101-103; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] ; Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [44] - [48] .


case_title: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174


case_title: Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398


case_text: The Registrar's order for production of the funding agreement permitted the applicant to redact the document to remove the amounts set out in par 2.1 thereof, that is the sections dealing with the amount of funding available. The only unfairness suggested by the applicant was if there were an order that the document be provided without that redaction. See generally Re Kingsheath Club of the Clubs Ltd (in liquidation) [2003] FCA 1034 at [33] - [34] and Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 at [69] - [73] .


case_title: Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455


case_outcome: referred to

case_text: Minister does not dispute the proposition of law asserted in the applicant's affidavit (see Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 at [16] and Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229). However, the Minister disputes the factual assertion that the Tribunal failed to describe the applicant's visa correctly.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229


case_text: In this appeal, the Appellant contends that Federal Magistrate Barnes erred in dismissing ( SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 1263) on 21 August 2006 an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') delivered on 10 January 2006 affirming a decision of the Minister's Delegate refusing the Appellant's application for a protection visa. 2 The grounds of appeal recited in the notice of appeal filed on 31 August 2006 are these: 'GROUNDS That the Learned Federal Magistrate Barnes did not went in to the question of law and facts. The respondents are showing the appellant as a citizen of Indonesia whereas the appellant hails from different country. The respondents also erred in to question of law as to the persecution and well founded fear of life. This has led to the grave miscarriage of justice. ORDERS SOUGHT The judgment and the order made by the Federal Magistrate Court may kindly be set aside. The applicant be allowed to remain in Australia til the decision of the review before this Honourable Court'. 3 The background facts are these. 4 The Appellant is a married Punjabi man born on 7 July 1977 in Sialkot, Pakistan. He is therefore a national of the State of Pakistan. 5 The Appellant arrived in Australia on 10 September 2005. On 29 September 2005 the Appellant lodged an Application for a Protection (Class XA) Visa with the First Respondent. On 18 October 2005, a Delegate of the First Respondent refused the Appellant's application. On 16 November 2005, the Appellant sought review of that decision before the Tribunal. The Appellant contends that he holds a well-founded fear of persecution for the political opinions he holds and articulates concerning the need for a restoration of democracy in the State of Pakistan and that he is unwilling to return to Pakistan owing to such fear. Accordingly, the Appellant contends that Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol ( 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees ) for the purposes of s 65(1) of the Migration Act 1958 (Cth) ('the Act'). 6 The Appellant's contentions in support of the application for a protection visa are these. (a) The Appellant is a Sunni Muslim. The Appellant has had the benefit of seven years of education; speaks, reads and writes the Urdu and English languages; was a self-employed salesman from 1995 to 2005; has a wife, son and daughter resident in Pakistan; and elected to leave Pakistan lawfully without any difficulty in obtaining travel documentation. (b) The Appellant was a member of the Pakistan Muslim League Nawaz Group ('the M L N G'). In documentation lodged in support of the application for a protection visa, the Appellant said that the M L N G was able to secure the maximum seats from the district of Sialkot in both the upper house and the lower house in elections prior to the civil governance of Pakistan by the military. The Appellant contends that he 'suffered' due to developing tension between the M L N G and the Pakistan People's Party. (c) After the assumption of power by the military, leaders of the M L N G in Sialkot formed a movement for the restoration of democracy. The Appellant was a 'front line worker' for the M L N G; participated in processions; and distributed flyers and other literature critical of corruption on the part of military generals. (d) The Appellant contends that the army 'blackmailed' some of the leaders of the M L N G to join the governing regime. The Appellant says he knows some of these persons as the Appellant was the most senior party worker in the M L N G in Sialkot. As a result, the Appellant was persecuted by the leaders of the military governance group and by the military secret service. (e) The Appellant says that he was taken to a police station and assaulted by the police at the instigation of military authorities. The Appellant was told by the authorities that he should not demonstrate against the military governance group and if he did not comply with these demands, false charges would be brought against him as a result of which he would be declared a terrorist and then executed. (f) The Appellant contends that he is an activist struggling for the development of a democratic movement in Pakistan; that he was able to obtain a visa through an agent in order to leave Pakistan; and that if he returns to Pakistan he will ultimately be executed because of the opinions he holds and his prior pro-democracy activity. 7 Notwithstanding these contentions, the Minister's Delegate rejected the Appellant's application for a protection visa.


case_text: In Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 their Honours Brennan, Deane, Toohey, Gaudron and McHugh JJ said this: 'At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise in accordance with the law. That point was made by Lord Diplock in Re Racal Communications Ltd ([1981] AC 374 at 383): "Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision making power is conferred on a tribunal or authority that is not a court of law, the Parliament did not intend to do so." The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative incompetence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it'. [emphasis added]


case_text: In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] , McHugh, Gummow and Hayne JJ had regard to the observations of their Honours Brennan, Deane, Toohey, Gaudron and McHugh JJ (noted at [34] of these reasons) in Craig and further explained the notion of 'jurisdictional error' in these terms: 'It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. "Jurisdictional error" can [thus] be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as to the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law . Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.' [emphasis added] See also the discussion of supervisory review of administrative decisions and the statutory analogue contained in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) at pp 39-43 per Mason J, Minister for Aboriginal Affairs & Another v Peko-Wallsend Limited & Others [1986] HCA 40 ; [1986] 162 CLR 24.


case_title: Re Refugee Review Tribunal & Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82

case_text: In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself. 43 Once it is established that the Tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the Appellant faces a real chance of persecution should he return to the Peoples Republic of China, or, has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the Appellant is an Indonesian rather than a Pakistani national, the Tribunal is seen to have failed to provide the Appellant with procedural fairness and thus jurisdictional error arises ( Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 109 [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474. 44 The obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the Appellant is an essential element of the discharge of the review function.


case_text: In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.


case_title: Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: With one possible exception, there is no dispute as to the making of the statements alleged. What is in contest is whether they would convey the representations alleged and, if so, whether those representations are untrue so as to mislead a hypothetical ordinary and reasonable member of the class of potential purchasers: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [103] . Such a person in the present case would be a potential purchaser of men's suits from a retail store in or near the Melbourne CBD. Since a purchase price of $400 to $900 is a significant amount, and is for an item which would normally be expected to last for a number of years, and which will affect the image the wearer presents to the world, the hypothetical ordinary and reasonable purchaser (perhaps assisted by the hypothetical ordinary and reasonable spouse) is to be regarded as taking a fair amount of care in arriving at a purchase decision. This case is not concerned with impulse buying of items for a few dollars.


case_text: This case is to be distinguished from the kind of case where something represented as "free" is in fact only obtainable if the purchaser provides some benefit to the representor. An example is Fraser v NRMA Holdings Limited (1995) 55 FCR 452. In that case proponents of the demutualisation of NRMA represented that policyholders would receive "free" shares, whereas the acquisition of those shares would involve the relinquishment of significant rights. The Full Court, 55 FCR at 483, recognised that in some contexts the word "free" may be understood as meaning "without additional or marginal outlay over what is obviously being paid", [but] this is not invariably so. 19 In the present case there is no extra charge or loss or obligation to be borne by the purchaser. If the purchaser pays $799 or $899 for a suit he will in fact get another suit without charge. The evidence does not suggest otherwise. 20 The representation does not convey anything as to whether the suits "warrant" a retail price of $799 or $899 or that such prices "bear out the true retail value". Offering goods for sale at a given price, without more, usually does not imply any statement as to "true" value. The seller is merely saying "If you pay me $X, I will sell you this article". The position is no different when the seller is offering to sell two articles for a given price.


case_text: For the purposes of s 82 of the Trade Practices Act , Peter Jackson has to show that it has "suffer(ed) loss or damage by the conduct of" MSWD in respect of the Limited Time representation, that being the only representation which has been established as misleading or deceptive or being likely to mislead or deceive. It is sufficient that this conduct was a cause of the loss or damage; it does not have to be the sole, or even the dominant cause: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 ; I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109. The proportionate liability provisions of Pt VIA of the Act, and in particular s 87CD , have no application because MSWD was not a "concurrent wrongdoer" within the meaning of s 87CB(3) ; no third party is suggested to have contributed to any relevant loss or damage suffered by Peter Jackson.


case_title: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: The evidence of the sales dockets corroborates the evidence of Mr Mortellaro and Mr Salerno. They do not support the allegation that the sale of single suits is something which never, or almost never, happens. Mr Goldblatt for Peter Jackson complained that the dockets only covered limited periods. However, if there was any concern as to the adequacy of discovery by MSWD, remedies were available. I cannot see any rational reason for concluding, or suspecting, that the periods covered by exhibits DJM-1 and DJM-2 were selected so as to give a misleading impression as to the ordinary course of business. No Jones v Dunkel (1959) 101 CLR 298 inference should be drawn. Like most business systems dependent on human implementation, the gold and black sticker system may not always have been adhered to strictly, but that is not to say that the system did not exist. 41 The Second Suit Free representation did not convey the meaning alleged in the FASC that the suits had a particular "real" worth, and so was not misleading in this way. In the form as put during trial and referred to in [21] above, the representation was true and was not misleading since a not insignificant number of suits were in fact offered for sale and sold at the full price. 42 The statements would not convey to a hypothetical ordinary and reasonable purchaser that all suits sold at Walter Withers stores are made from European fabrics. The ordinary message conveyed by retailer's advertisements of articles with desirable attributes is that such articles can be purchased from the advertiser, not that all products sold have these attributes.


case_outcome: distinguished

case_text: So far I have considered Peter Jackson's case as pleaded in the FASC. During the course of the hearing, however, there was a significant shift. It was said that MSWD at its Walter Withers stores never, or almost never, sells suits for the full marked price of $799 or $899. The case was said to be analogous to cases such as Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475 where tags on garments had a higher price struck out so as to lead purchasers to believe that the garment had previously been offered for sale at the higher price. So, it is said, the alleged misleading and deceptive conduct here is to present an inflated "normal" price to induce the buyer to believe he is getting a second suit "free" if he pays such a price. This version of Peter Jackson's case alleges misrepresentation as to price, not value. 22 However, the evidence establishes that MSWD does, at its Walter Withers stores, sell single suits for $799 or $899. 23 There was evidence from the third respondent Mr Daniel Mortellaro, a director of MSWD, corroborated by the second respondent Mr Angelo Salerno, the second respondent and also a director, which was to the following effect. In 2004 MSWD adopted a system, which was used at Walter Withers stores, including the Collins Street store from the time it opened in July 2005. Every suit when first delivered to the store has its label tagged with a gold sticker. Every gold sticker label suit sells for the full price, either $799 or $899. Every 10 to 12 weeks all of the stock in Walter Withers stores is assessed by Mr Mortellaro or Mr Salerno. Depending on suit volumes, sales and other considerations, gold sticker label suits might be reclassified as black label, in which case the labels are tagged with a black sticker. Some suits of a particular colour, for example "birds eye grey", never become black sticker label suits. The second suit free offer only applies to black sticker label suits.


case_text: On 18 January 2007 the applicant filed a purported Notice of Appeal outlining three grounds of appeal: '2. The Single Judge of the Federal Magistrates Court in his Honors judgment delivered on the 21 December 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the judiciary Act. 1903. 3. The grounds and relief is very much similar with a recent High Court judgement Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002) 4. Recent High Court judgement ; Plintiff S 157/2002 Commonwealth of Australia [2-3] HCA 1 5. Recent Federal Court of Australia judgement: AGDB v Minister for Immigration and Multicultural Affairs. I will provide more ground after received the judgement.' (Transcribed from the original without alteration) 26 On 30 January the solicitor for the first respondent filed a Notice of Objection of Competency of the Appeal on the ground that the judgment of the Federal Magistrate dated 21 December 2006 is interlocutory and the applicant has not been granted leave to appeal against this judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 . 27 At the hearing of the appeal before me the applicant who was assisted by an interpreter elected not to make oral submissions. The first respondent relied upon its filed written submissions. 32 The applicant's second proposed ground points to the decision of Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. I have considered this case which concerns amongst other things the issue of jurisdictional error arising from a denial of procedural fairness and natural justice where there was an alleged failure to provide an applicant seeking a review of a decision to refuse the grant of a protection visa with an opportunity to respond to adverse material. Its disposition so far as factually based turned on the particular facts of the case. The Federal Magistrate, correctly, in my opinion, upon a consideration of all the material, concluded that there was no denial of procedural fairness. Muin provides no assistance to alter that finding and accordingly no arguable ground of appeal arises.


case_text: The applicant's third proposed ground points to another case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. Once again I have considered this case. It concerns matters of the statutory construction and constitutionality of certain provisions of the Act . It provides no assistance to the applicant that is apparent on the papers before me. No arguable ground of appeal arises.


case_title: SGDB v Minister for Immigration and Multicultural and Indigenous [2004] FCAFC 59

case_text: The fourth proposed ground refers to AGDB v Minister for Immigration and Multicultural Affairs . I take this to be a mistaken reference to the decision of the Full Court of this Court in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59 , which was an appeal from a decision of the Federal Magistrates Court. In that case the applicant succeeded on the one ground that the Tribunal had fallen into jurisdictional error by failing to consider, in respect to the issue of whether the applicant had a well-founded fear of persecution, the risks which he, an Afghan citizen, together with his wife and family, might face should he return to Afghanistan, when travelling from Kabul through other ethnic tribal areas in order to reach their home. [23]-[27] It provides no assistance to the applicant in this case. No arguable ground of appeal arises. 35 Scarlett FM was correct to dismiss the application before him. 36 Accordingly, the applicant has failed to satisfy me that the decision below is attended by sufficient doubt to warrant a grant of leave. For these reasons, the application for leave to appeal ought to be dismissed with costs which I have fixed at $1,200. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 4 May 2007 The Applicant: The applicant appeared in person Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 May 2007 Date of Judgment: 4 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/659.html


case_text: Where an applicant does not raise any arguable ground of appeal or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal proceeding, then leave to appeal ought not be granted: SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [11] . 29 The "Notice of Appeal" raises a number of "grounds", none of which articulates a comprehensible challenge going to jurisdictional error. No particular findings are challenged. Three authorities are, in effect, said to expose the grounds. No further grounds have been added despite this being foreshadowed. Furthermore, no written submissions have been filed by the applicant. 30 The Court ought not be required, and, in my opinion, has no relevant duty to trawl through authorities cited by a party as in themselves constituting, in effect, both the grounds and particulars of its proposed appeal. Nonetheless I have carefully considered the authorities set out in the purported Notice of Appeal because the applicant is unrepresented and does not speak English.


case_outcome: related

case_text: On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons. 4 The Administrative Appeals Tribunal (the AAT) has now held that it is appropriate to make orders ensuring that an applicant's identity is not disclosed in the course of proceedings before it and that APRA can be restrained from publishing a notice relating to, or in any other way revealing, its decision ( Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642 ; (2005) 87 ALD 747, (2005) 60 ATR 1013). That supplements the topic referred to in Kamha [2005] FCA 480 ; 146 FCR 24 at [44] . Whether it is appropriate to now make such orders in this case, with its history, would be a matter for the AAT. 5 The applicant has now been charged with two offences, firstly, that he did not act honestly in exercise of powers and discharge of duties as an officer of FAI General Insurance Co Limited and, secondly, that being an officer was privy to the fraudulent altering of a database of that company. Those charges obviously involve an overlap with the subject matter of the present proceedings. The charges have been preferred in open Court and there has been newspaper publicity about them. This adds to the point discussed in Kamha [2005] FCA 480 ; 146 FCR 24 at [43] . 6 The Full Court appeal in this case was argued in public and the judgment of the Full Court is public. It has been available on the Court's website since shortly after it was delivered. It has been reported. The remitted proceeding has been argued in public. This judgment will be public. The fact that APRA has decided to disqualify the applicant is well and truly in the public domain by reason of his choice in bringing this proceeding.


case_text: On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons.


case_text: On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons. 3 I rejected that submission and indicated that, in my opinion, the remittal includes exercise of the discretion whether or not to grant relief under s 16 of the ADJR Act. The Full Court dealt with the discretion issue in Kamha [2005] FCAFC 248 ; 147 FCR 516 at [76] [90]. The existence and possible application of the s 16 discretion was affirmed. The Full Court did not purport to exercise that discretion for itself. The Full Court decision does not preclude the application of the Federal Court Rules , including those relating to summary dismissal. The order of remittal is not limited in any way and cannot be read down. The result of the Full Court appeal is that only ground 1(b) in respect of the satisfaction decision and ground 2(b) in respect of the discretionary decision in the further amended application have been disposed of. All of the remaining grounds are open, subject to the limitations arising out of what the Full Court had to say under the heading "Reasons for deciding to disqualify". The reconsideration must be conducted in the light of the circumstances that exist at the present time. I propose to reconsider the issue of discretion before moving to complete the hearing of the remaining issues on the merits. Certain events occurring after the previous decision now need to be taken into account. 7 It is clear enough that, if the inevitable disqualification had taken place, the applicant could have exercised the internal review and made an application to the AAT for an immediate stay and thereafter maintained confidentiality through that process and any consequent appeal to the AAT. Counsel for the applicant naturally sought to rely upon what was said by the Full Court as to "status" (see Kamha [2005] FCAFC 248 ; 147 FCR 516 at [85] ). "Status" is an unusual way of describing an administrative disqualification that is stayed and is subject to full confidential internal and external review on the merits. Even in the case of bankruptcy by court order, a successful appeal means that it is as if sequestration had never occurred ( de Robillard v Carver (2007) 159 FCR 38 per Buchanan J at [141] [150], agreed with by Moore and Conti JJ at [1]). Reliance is also placed upon the statement "that may be a matter of prejudice..." ( Kamha [2005] FCAFC 248 ; 147 FCR 516 at [85] ). No fact or circumstance indicating potential prejudice is identified. I cannot discern any. Nonetheless, I will take into account the possibility of some unidentified prejudice by reason of the statutory process being followed to decision by the AAT. 9 Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth & Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.


case_text: The judicial discretion under s 16 as to whether or not to grant relief is at large, even where a case for relief is made out ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338 339, agreed with by Brennan J at 365 and Deane J at 369). There are no mandatory criteria. A factor is only irrelevant to exercise of discretion if it is contrary to the purposes of the section read in its context in the ADJR Act.


case_text: Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth & Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.


case_text: Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth & Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16. 13 All in all, the balance lies firmly in favour of declining relief, whatever the merits of the remaining grounds, and this proceeding should be brought to a halt, leaving the applicant to his statutory rights of review. The unresolved grounds can be regarded as summarily dismissed for reasons outlined in Du Pont (Aust) Ltd 30 ALD 829, [1993] FCA 187 ; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554; and McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118. There is no need to make formal orders to that effect on the motion or otherwise as no other basis for relief remains. The appropriate order is that the proceeding be dismissed. These reasons explain the bases for that order.


case_text: All in all, the balance lies firmly in favour of declining relief, whatever the merits of the remaining grounds, and this proceeding should be brought to a halt, leaving the applicant to his statutory rights of review. The unresolved grounds can be regarded as summarily dismissed for reasons outlined in Du Pont (Aust) Ltd 30 ALD 829, [1993] FCA 187 ; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554; and McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118. There is no need to make formal orders to that effect on the motion or otherwise as no other basis for relief remains. The appropriate order is that the proceeding be dismissed. These reasons explain the bases for that order.


case_title: NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319


case_title: New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95


case_title: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82


case_text: The Administrative Appeals Tribunal (the AAT) has now held that it is appropriate to make orders ensuring that an applicant's identity is not disclosed in the course of proceedings before it and that APRA can be restrained from publishing a notice relating to, or in any other way revealing, its decision ( Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642 ; (2005) 87 ALD 747, (2005) 60 ATR 1013). That supplements the topic referred to in Kamha [2005] FCA 480 ; 146 FCR 24 at [44] . Whether it is appropriate to now make such orders in this case, with its history, would be a matter for the AAT.


case_title: Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554


case_title: Seymour v Attorney-General (Cth) (1984) 4 FCR 498


case_title: Stack v Commissioner of Patents (1999) 161 ALR 531


case_title: Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523


case_title: Tooth & Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492


case_text: The application be listed for hearing on 24 June 2008 at 9.30am. 4 Insofar as the orders required the plaintiff to do an act, I am satisfied that the orders have been complied with. No creditor has filed an appearance or sought to be heard on this application. 5 The purpose of providing administrators and liquidators with the right to apply for directions from the Court is to protect those officers from incurring personal liability in relation to acts done on behalf of the company. Provided that an administrator or a liquidator makes a full and fair disclosure to the Court of any material facts which are relevant to the application, those officers are entitled to obtain directions from the Court as to the manner in which they should act in carrying out their functions. The purpose is not to enable an administrator or liquidator to apply to the Court to make binding orders in the nature of judgments which would impact upon creditors or other parties not parties to the proceeding but to give the administrator or liquidator advice: Re G B Nathan and Co Pty Ltd (In Liq) (1991) 24 NSWLR 674. However, there may be instances where a court will go further without simply giving directions and make declarations which impact on parties' substantive rights, but usually the parties affected will be parties to the proceeding or at least indicate consent to such a procedure. 6 The company was registered on 28 August 2001. On 1 November 2005 the Deputy Commissioner of Taxation filed an application in this Court seeking an order that the company be wound up in insolvency. On 29 November 2005 at a meeting of the company the plaintiff was appointed administrator of the company by the director pursuant to s 436A of the Act. At that meeting the director of the company, Mr Kerry Rogers, expressed the opinion that the company was insolvent. On 6 December 2005 the plaintiff in his capacity as administrator of the company convened a meeting of the company's creditors pursuant to s 436E of the Act. On 20 December 2005 Emmett J dismissed the Deputy Commissioner of Taxation's application on the ground that a DOCA was likely to be executed. On 23 December 2005 the plaintiff convened a further meeting of creditors pursuant to s 439A at which the creditors resolved that the company execute a DOCA. That deed was executed on 31 December 2005. 7 The DOCA provides that a moratorium applies for all liabilities of the company to creditors until the company is released from the DOCA or the DOCA is terminated: clause 3. 8 Clause 4.3 of the DOCA provides that the director, Mr Kerry Rogers, pay to the administrator the sum of $57,150 for the purchase of the plant, equipment and vehicles of the company. The DOCA provided for that sum to be held by the administrator, together with other monies as provided for in clause 5 of the Deed; which together would comprise the "fund".


case_text: Where a company is being wound up in insolvency, the liquidator must take into the liquidator's custody or control all the property to which the company is or appears to be entitled: s 474(1). The company's property must be applied in discharging the company's liabilities: s 478(1)(a). Whilst the liquidator takes custody and control of the company's assets, the legal title to the property remains in the company. The liquidator merely adopts the position of the directors: Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360 at 371; Mineral & Chemical Traders Pty Ltd v T Tymczyszyn Pty Ltd (in liq) (1994) 15 ACSR 398. In that later case Santow J said at 416: The statutory scheme which exists for the realisation and distribution of assets of the company in liquidation therefore does not, upon the appointment of a liquidator, operate so as to divest the company of its property. The effect of the appointment of a liquidator is rather that control of all of the company's property passes to the liquidator. There is no change in the ownership of a company property upon a winding up (leaving aside preferences). Title to property does not pass but remains vested in the company: Re Allan Fitzgerald Pty Ltd (in liq) (1992) 9 ACSR 627. The liquidator does not become the beneficial owner of the assets of the company. The liquidator is simply an officer of the company charged with the duty of dealing with the company's assets in accordance with the statutory scheme: United Tool & Lye-Makers Pty Ltd (in liq) v J V Marine Motors Pty Ltd [1992] 1 VR 266; Re Allan Fitzgerald Pty Ltd (in liq), supra. As the joint judgment of Stephen, Mason, Aitken and Wilson JJ stated in Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360 at 371: In the case of the winding up of the company the legal title to all company property, including trust property, remains in the company. The liquidator of a company takes the position of the directors and, in the absence of a court order under s 233(2) of the Companies Act acquires no title to the company property . (my emphasis)


case_title: Mineral & Chemical Traders Pty Ltd v T Tymczyszyn Pty Ltd (in liq) (1994) 15 ACSR 398


case_text: In Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liquidation) [2005] HCA 20 ; (2005) 220 CLR 592 , the majority of the High Court followed a decision of Menzies J in Franklin's Selfserve Pty Ltd v Federal Commissioner of Taxation [1970] HCA 33 ; (1970) 125 CLR 52 when his Honour, speaking of assets of the company, said they remain the property of the company and the beneficial interest is not, by virtue of the liquidation, vested in any other person or persons. When a company is placed in liquidation and a liquidator appointed, the ownership of the assets of the company remains with the company. The control of those assets, however, passes to the liquidator in accordance with the statutory scheme and the liquidator must deal with those assets for the benefit of the creditors. 48 There is no reason to impress upon the administrator a trust so that the company is divested of its assets upon the execution of the deed of company arrangement. It is enough that the administrator is obliged to deal with the assets of the company in accordance with the directions given by the company by its execution of the deed of company arrangement. The Parliament could, if it wished, create the administrator as a trustee of the company's assets on execution of the deed of company arrangement: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 1 ; (1993) 178 CLR 145 at 167. Indeed, the legislation could render the administrator as trustee without the legislation using the expression "trust": Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; 220 CLR 592 at 607. But that is not the case here. There is nothing in the statute which suggests that an administrator is to become the trustee of any fund created by the company pursuant to a deed of company arrangement. There is nothing to suggest that the administrator should occupy any different position to a liquidator. The purpose of an administration is to get in the available assets and distribute them to the creditors; in the case of an administrator in accordance with the deed of company arrangement and in the case of a liquidator in accordance with the statutory scheme.


case_outcome: discussed

case_text: In Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liquidation) [2005] HCA 20 ; (2005) 220 CLR 592 , the majority of the High Court followed a decision of Menzies J in Franklin's Selfserve Pty Ltd v Federal Commissioner of Taxation [1970] HCA 33 ; (1970) 125 CLR 52 when his Honour, speaking of assets of the company, said they remain the property of the company and the beneficial interest is not, by virtue of the liquidation, vested in any other person or persons. When a company is placed in liquidation and a liquidator appointed, the ownership of the assets of the company remains with the company. The control of those assets, however, passes to the liquidator in accordance with the statutory scheme and the liquidator must deal with those assets for the benefit of the creditors.