case_text: Referring to discretionary considerations, King CJ noted that the trial of the action against the directors seemed likely to be very lengthy, very complex and very costly. The joinder of the insurer would make it a co-defendant with the defendant directors. The question which he then posed was whether res judicata would operate as between the co-defendants. He concluded that an actual lis in the sense of proceedings between the defendants concerned was not a requisite of res judicata and cited the judgment of Jacobs J in Re Multi-tech Services Pty Ltd (In liq); Heard v Commonwealth Trading Bank of Australasia (1982) 30 SASR 218. He said (at 441): In my opinion, the insurer, if joined as a defendant, would be bound, in subsequent proceedings by the defendant directors or their trustee in bankruptcy, by a declaration of liability and also by any findings of fact made in the present proceedings. King CJ accepted that joinder would involve "embroiling the insurer in these proceedings although, if it is not joined, the occasion for proceedings against it may never arise" (at 441). He recognised that that was an important factor in the exercise of the discretion. However, it could not prevail against other compelling considerations. If the insurer were to plead defences based on want of notification of claims or avoidance of the policy under s 237 of the Companies (South Australia) Code by reason of payment of the premiums by the plaintiffs or a related corporation, such defences could be determined, if appropriate, as preliminary issues. If determined in favour of the insurer, the insurer's involvement in a long and expensive trial would be avoided. 43 His Honour said that, in the exercise of its discretion, the Court must be guided by the overriding principle that a multiplicity of proceedings was to be avoided. He referred in that respect to s 27 of the Supreme Court Act which is in substance reflected in s 22 of the Federal Court Act. He was particularly concerned about the need to avoid the prospect of a second long and complex trial. 58 I respectfully agree with the view expressed by Byrne J that the decision of Jacobs J in Multi-tech Services 30 SASR 218 does not seem to be authority for the proposition that an insurer joined as a co-defendant at the suit of a claimant against the insured, would be bound as between itself and the insured, by a declaration that it was liable to provide indemnity to the insured. There was no exposition by Jacobs J of any principle that would support that proposition. It is not necessary for me to decide the general question here. In my opinion the approach taken in JN Taylor 59 SASR 432 is supportable on a wider basis without reliance on a res judicata or issue estoppel. That wider basis was enunciated by Davies JA. In this respect I refer also to my review of the authorities relating to the general concept of abuse of process by relitigation in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] [69]. I consider, as did Davies JA, that there is utility in a declaration against an insurer in circumstances such as the present. That factor however, while important, does not exhaust the discretionary considerations, particular to this case, to which I should have regard.


case_outcome: cited

case_text: JN Taylor Holdings 59 SASR 432 was distinguished by the Court of Appeal in Victoria in CE Heath Casualty and General Insurance Ltd v Pyramid Building Society (In Liquidation) (1997) 2 VR 256. In that case a building society in liquidation sued its former auditors for breaches of retainer and duty of care. The insurers were conducting the defence. However upon inquiry from the plaintiff, they neither admitted nor denied liability to indemnify the auditors. They declined to commit themselves about the interpretation of the policies so far as they provided for maximum amounts of cover. The plaintiff sought leave to join them as defendants and to seek declarations against them as to the application of their policies. The Court of Appeal allowed an appeal against an order at first instance granting leave to join them. The Court held there was no basis for the joinder under the Supreme Court Rules . The issues raised against the insurers were additional to those between the building society and the auditors. They depended upon discrete facts. The Court also rejected the proposed joinder on discretionary considerations.


case_text: The decision of the Court of Appeal of Victoria in CE Health [1997] 2 VR 256 was followed by the Full Court in South Australia in Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19. The critical point there was not only that indemnity had not been declined but there had been an acceptance of liability. In that case a firm of chartered accountants, formerly auditors to the State Bank of South Australia, were sued by a number of parties including a subsidiary of the Bank for $1 billion. The claims were based on breaches of duty on the part of the auditors. The trial of the action was estimated to last in excess of a year. Estimated costs of proceeding to trial, $13 million, would exceed the known assets of the auditors' partners. The plaintiffs had obtained orders from the trial judge requiring the auditors' insurer to discover and produce all applicable policies of professional indemnity insurance. The auditors were also ordered to discover and produce confidential correspondence between them and their insurer relating to notification of the claim and indemnification generally. The insurer appealed the production orders to the Full Court. They contended that they were dealing with the claim as if it attracted indemnity in a relevant policy year and had not declined the indemnity.


case_title: Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd [1982] 2 QD R 301

case_text: The Queensland Court of Appeal in Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd [1998] 2 Qd R 301 by majority, declined to follow JN Taylor Holdings 59 SASR 432 . In that case Interchase Corporation commenced proceedings against valuers in connection with the development of a retail and commercial complex in Brisbane. It claimed to have lost about $60 million through a negligent valuation of the complex. FAI was the professional indemnity insurer of the valuers. FAI conducted the defence of the litigation for some time then declined indemnity. The valuers did not object to that decision and did not foreshadow any possibility of contesting it. Interchase then sought to join FAI as an additional defendant to obtain a declaration that it was liable to indemnify the valuers in respect of their liability to Interchase. A judge acceded to that application and an appeal from that decision was allowed by majority. The majority held in substance that convenience alone could not justify joinder of an additional defendant under the Rules of the Supreme Court. There was no controversy between the valuers and the insurer and therefore their rights inter se would not be determined in the action. The joinder would serve no useful purpose.


case_text: In dissent, Davies JA said (at 309): I accept that there would be no point in making the order for joinder if the declaration did not, in practice, effectively determine the issue of FAI's liability to the valuers as between those parties. But I do not think it is sufficient, for the joinder to lack utility, that it is not binding between those parties at law if, in its practical effect, it is. He agreed with Byrne J that Interchase and the valuers were not privies for the purposes of res judicata and issue estoppel. He also agreed that neither doctrine would operate to bind FAI and the valuers inter se in respect of that question. His Honour went on however to refer to the wider concept of estoppel enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, a case in which admittedly there was mutuality. He said (at 310): There was mutuality in Anshun and their Honours in the joint judgment to which I have referred did not find the abuse of process test, as elucidated in some of the English cases, of great utility. However, abuse of process is a similar mechanism designed "to protect against 'the scandal of conflicting decisions'," which can achieve that protection where mutuality is absent as it is here. FAI and the valuers would have the full opportunity of contesting the question in respect of which the declaration was sought. Davies JA thought it would therefore be an abuse of process to permit either to litigate that question in subsequent proceedings. It followed that the declarations sought would effectively determine the question of FAI's liability to the valuers as between those parties.


case_text: I respectfully agree with the view expressed by Byrne J that the decision of Jacobs J in Multi-tech Services 30 SASR 218 does not seem to be authority for the proposition that an insurer joined as a co-defendant at the suit of a claimant against the insured, would be bound as between itself and the insured, by a declaration that it was liable to provide indemnity to the insured. There was no exposition by Jacobs J of any principle that would support that proposition. It is not necessary for me to decide the general question here. In my opinion the approach taken in JN Taylor 59 SASR 432 is supportable on a wider basis without reliance on a res judicata or issue estoppel. That wider basis was enunciated by Davies JA. In this respect I refer also to my review of the authorities relating to the general concept of abuse of process by relitigation in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] [69]. I consider, as did Davies JA, that there is utility in a declaration against an insurer in circumstances such as the present. That factor however, while important, does not exhaust the discretionary considerations, particular to this case, to which I should have regard.


case_outcome: applied

case_title: Brink, Re; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433

case_text: Although, as Lockhart J said in Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 at 439, the Court is not required to undertake a preliminary trial of the counter-claim, set-off or cross demand, a substantial body of evidence was adduced at the hearing. 7 The evidence consisted of two affidavits of Mr Dekkan and an affidavit of each of Ms Evans and Ms Ramsay. Having regard to the background of the matter and the overall circumstances, I permitted Mr Dekkan to cross-examine Ms Evans and Ms Ramsay. 8 At the start of the hearing Mr Dekkan filed a notice of motion seeking to have the hearing adjourned due to his mental and physical condition which he said prevented him from adequately dealing with the matter. He went into the witness box and was cross-examined.


case_outcome: referred to

case_title: Dekkan v Picciau [2008] NSWCA 18

case_text: The relevant details of the District Court proceedings are set out in the judgment of Basten JA (with whom Hodgson and Tobias JJA agreed) on the application for leave to appeal: Dekkan v Picciau [2008] NSWCA 18. 19 When the hearing in the District Court commenced on 25 October 2006, Mr Dekkan was represented by a solicitor, Mr Joseph Johnson of Bruce Dennis & Co. At the commencement of the hearing Mr Johnson applied to vacate the hearing on the ground that Mr Dekkan was "in a psychiatric hospital". 20 Evidence was given by Mr Dekkan's psychiatrist, Dr Selwyn Smith, that Mr Dekkan was experiencing a major depressive episode.


case_title: Glew, Re; Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331

case_text: The matters as to which an applicant to set aside a bankruptcy notice must satisfy the Court were stated succinctly by Lindgren J in Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 at [9] . 52 His Honour there observed that the authorities indicate that an applicant must satisfy the Court of three interrelated, and sometimes overlapping matters: first, that he or she has a " prima facie case", even if evidence is not adduced which would be admissible on a final hearing; second, that he or she has "a fair chance of success"; third, that the claim is "genuine" or " bona fide. " 53 Lindgren J summed up the test as follows at [12]: Perhaps little more can usefully be said than that a debtor must satisfy the court that there is sufficient substance to the counter-claim, set-off or cross-demand asserted to make it one which the debtor should, in justice, be permitted to have heard and determined in the usual way, rather than be forced to comply with the bankruptcy notice by payment or to commit an act of bankruptcy. 54 I have no doubt that Mr Dekkan believes he has a genuine claim but the authorities show that this is not sufficient; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Re Brink: Ex parte CBC at 438. 55 Whether the test be expressed as a prima facie case, or a fair chance of success, it is plain that the claim propounded by Mr Dekkan does not reach either threshold. There are four reasons for this.


case_title: Makhoul v Barnes (1995) 60 FCR 572

case_text: Although I am satisfied that the ground stated in s 40(1)(g) is not enlivened, the authorities establish that in an appropriate case, on the hearing of a petition where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582. 69 In Makhoul v Barnes at 582, Hill, Cooper and Branson JJ observed that where on an application to set aside a bankruptcy notice, a court has investigated the question of whether a real debt lies behind the judgment debt, it would rarely, if ever, do so again. 70 The thrust of my consideration of the matter has been to determine whether Mr Dekkan has a claim which satisfies s 40(1)(g). To the extent that the question of the quantum of the indebtedness may arise on the hearing of the petition, it will be a matter for the judge hearing that application to decide whether, and to what extent, to exercise a discretion to go behind the judgment debt. 71 The orders I will make are: 1. The application to set aside the bankruptcy notice be dismissed. 2. The applicant pay the costs of the respondents.


case_text: Although I am satisfied that the ground stated in s 40(1)(g) is not enlivened, the authorities establish that in an appropriate case, on the hearing of a petition where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582.


case_text: is certainly the case that, traditionally, there is a distinction in the manner in which appellate courts treat an exercise of discretion on a point of practice or procedure as is the case before me and an exercise of discretion which determines substantive rights (cf Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323). However I accept the submission of Mr Merrell, supported by Mr O'Grady, that it is incumbent on the appellate court to carefully examine each case before it, and identify whether an error has been made in exercising the discretion. As was observed by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653: The other point that was made by the defendants was that this was a discretionary order and that the Court of Appeal ought not to interfere with the discretion of the learned judge. I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so. (cf Dick v Piller [1943] KB 497 at 506-507, Jarrett v Westpac Banking Corporation [1999] FCA 425 at [78] )


case_outcome: distinguished

case_title: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

case_text: decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5] , Goldberg v Morrow [2004] FCA 1490 at [36] , Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504. As Dixon, Evatt and McTiernan JJ observed in the following well-known passage: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)


case_title: Goldberg v Morrow [2004] FCA 1490


case_title: In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318


case_title: Jordan v Smart [1961] NSWR 735

case_text: is strong authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Indeed, where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.


case_text: today I urgently granted the applicant leave to appeal from two decisions of a Federal Magistrate in respect of related proceedings. In those decisions his Honour had refused applications, supported by both parties, to adjourn the trial of the substantive proceedings in both cases. The background to the applications before me is set out in detail in Lennox v Amcor Limited trading as Amcor Cartonboard [2009] FCA 959. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The appellate jurisdiction of the Court in relation to an appeal from a judgment, other than a migration judgment, of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single Judge. The Chief Justice has so directed in this case. In Court this afternoon the applicant filed the notices of appeal in respect of which leave had previously been granted, citing the following grounds of appeal: The learned Federal Magistrate erred in law by not according natural justice to the Applicant. In refusing the application made by the Applicant to vacate prior orders and adjourn the trial, the learned Federal Magistrate erred as a matter of law by failing to take into account: that the Court had been appraised of the parties' non-compliance with the pre-trial directions orders on or by 4 August 2009; the severe and prejudicial consequences of the refusal for the Applicant and for the Respondent; the effect of the refusal on the likely length and cost of the trial. The applicant has sought the following orders: That the decision to refuse the application be set aside. That the orders sought in the application filed in the Federal Magistrates Court on 19 August 2009 be made. That the decision to refuse the stay the trial pending the outcome of this appeal be set aside. That the costs of this appeal be costs in the Federal Magistrates Court proceeding BRG649/08. Such further or other orders as the court sees fit. The orders sought in the application filed in the Federal Magistrates Court on 19 August 2009 were as follows: By 14 September 2009 each party make discovery on oath in accordance with the categories described in Schedule hereto. Each party shall produce disclosed documents for inspection in accordance with Federal Court Rules by 4.00 pm on 21 September 2009. The trial of this proceeding will be conducted on the basis that the evidence-in-chief of each witness to be called by the parties will be given by affidavit. That the witnesses' affidavit be exchanged as follows: the Applicant file and serve the affidavit of any proposed witness by 19 October 2009; the Respondent file and serve the affidavit of any proposed witness by 4 November 2009; and the Applicant file and serve any affidavits in reply to the Respondent's affidavits by 13 November 2009. The parties are to exchange outlines of argument 7 days prior to the commencement of the hearing.


case_title: Maxwell v Keun [1928] 1 KB 645


case_title: Thornberry v R (1995) 69 ALJR 777


case_title: Trivett v Zoccoli [2002] WASCA 138


case_outcome: followed

case_text: the period of time spent in Australia as a permanent resident is an important consideration in an application for citizenship, the Court is satisfied that there is no Wednesbury unreasonableness in the Tribunal's decision. Having so concluded, the appellant's claim that the decision of the Tribunal on this issue was unreasonable has no legal consequence: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 626 [40] . For this reason, the second ground of appeal is rejected.


case_text: appellant also relied upon a decision referred to in Roberts namely Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259. That decision is also distinguishable since the applicant in that case had a residence in Australia and had conducted a business in Australia for more than a decade. In that case the Court found that ' significant hardship or disadvantage would result if citizenship were not awarded '. Davies J said of the Policy (at 267): 'The discretion, moreover, looks to period of presence in Australia which ought to be treated as periods of permanent residence. In my opinion, this requires attention to be given to the nature or the character of the presence in Australia, that is to say, to the family, social and business connections which gave rise to the presence in Australia. The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised.' In Re Sadawut Taechaubol, another authority referred to by the appellant, the applicant had a long standing association with Australia. This is simply another example demonstrating that each application for citizenship will depend upon its merits. Australian citizenship represents formal membership of the community of the Commonwealth of Australia which involves reciprocal rights and obligations, uniting all Australians: see the preamble to the Act. Section 13(1) of the Act contains the criteria which would assist the Minister in determining whether the applicant for citizenship satisfies the objectives of the Act. Section 13(1)(j) provides that a grant of citizenship may be made if the Minister is satisfied inter alia that: 'If granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia'.


case_text: Against this, s 424B(2) and s 424B(3)(b) each provide that where no period is prescribed, the information or comments are to be given within a reasonable period. Mr Potts drew attention to the power of the RRT to extend the period to respond to an invitation contained in s 424B(4). It may well be that this power can be exercised after the initial prescribed period has expired; see Minister for Immigration and Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 at [51] . 47 A difficult question of construction and reconciliation of the provisions of Div 4 of Part 7 with the privative clause in s 474 of the Act would arise if the RRT were to specify in its s 424 or 424A invitation a period of 13 days to respond, and, in the absence of a response within that period, the RRT proceeded to make a decision on the review without further action, as apparently authorised by s 424C and s 425(2)(c). 48 However, I am relieved from answering that question because of the circumstances in which the apparent breach of s 424B(2) occurred in the present case. What I have to determine is whether the breach complained of gave rise to jurisdictional error. That cannot be answered by simply posing the question of breach or no breach; it is necessary to consider whether in the particular circumstances the breach had that result. 49 I do not see how, having regard to the language of s 424B(2) or the scope of Div 4, a breach which consisted of giving an applicant more time than he or she was entitled to, could be thought to render invalid a decision given after the breach. This must be especially so where the information was provided and a hearing took place in accordance with s 425. 50 It follows that the appeal must be dismissed.


case_text: A failure to give the additional information requested under s 424 , or to give the comments pursuant to an invitation given under s 424A , before the time specified, or any extended period, authorises the RRT to make a decision on the review without taking any further action; see s 424C and s 425(2)(C) ; see also NACI v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 154. 44 Moreover, a failure to give the information or the comments before the specified time relieves the RRT of its obligation to invite an applicant to give evidence and present arguments at an oral hearing; see s 425(2)(c). Indeed, failure to give the information or to provide the comments removes any entitlement of an applicant to appear before the RRT; see s 425(3).


case_text: It might be thought therefore that the time limits fixed by the Act and the Regulations must be adhered to strictly. Further support for this view is to be found in the observation of Sackville J in NAWR v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1520 at [33] and [35], that no period other than the period of 14 days for the initial prescribed period or 28 days for the further prescribed period can be specified.


case_text: The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355 at [91] , [93]; see also SAAP at [73], [205].


case_text: Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; see also SAAP at [80].


case_text: Federal Magistrate Lloyd-Jones considered at some length the effect of the decision of the High Court in SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "). His Honour came to the view that the purpose and legislative context of s 424B was to be contrasted with that of s 424A , such that the legislative intention was not to be that a breach of the time provision in s 424B(2) would lead to the invalidation of a decision made following a breach of the section. 29 As I have said, the Minister conceded that the RRT's s 424 letter breached s 424B(2) of the Act by specifying a date for response which was outside the prescribed period. It may seem curious that what would appear to be an indulgence extended to an applicant could nonetheless constitute a breach. However, I do not suggest that the concession was wrongly made. 30 The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355 at [91] , [93]; see also SAAP at [73], [205]. 31 In SAAP , a majority of the Court held that a breach of s 424A was jurisdictional in nature so that a decision handed down after the breach was rendered invalid by it. 32 Their Honours pointed to the mandatory language of s 424A and to the purpose of the provision which McHugh J described at [77] as "one of the centrepieces of... (the) regime of statutory procedural fairness."; see also at [165]-[166], [173] per Kirby J, and at [205]-[208] per Hayne J. 52 Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; see also SAAP at [80].


case_text: The question of whether a breach of s 424B(3)(b) of the Act resulted in jurisdictional error was raised in SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769 (" SZDQL") . However, Sackville J found that the provision was not breached. It was therefore unnecessary to decide whether a contravention of s 424B(3) constituted jurisdictional error. His Honour said that the issue should be left to a case in which the court had the benefit of full argument; see at [50], [53]. 34 I have been much assisted by the written and oral submissions of both Counsel. I am indebted to Mr Zipser for accepting the brief for the appellant pro bono pursuant to an order I made under Order 80 of the Federal Court Rules . 35 Mr Zipser submitted that the language of s 424B(2), though not using the imperative "must" was nonetheless mandatory in nature. He also pointed to the object of the section as a part of the statutory procedural fairness regime which is codified in Div 4 of Part 7 of the Act . 38 Support for the view I have expressed as to the object of the provision may be found in Sackville J's observation in SZDQL at [50] as to the statutory purpose of s 424B(3)(b). His Honour said that its object is to ensure that the required interview takes place within a reasonably short period of the invitation. 39 Section 424B(3)(b) operates in a slightly different way from s 424B(2). The effect of s 424B(3)(b) is that the RRT may stipulate a time for the interview at any time within the prescribed period. There is an outer time limit within which the interview may take place but the RRT may appoint any date within the period, indeed, at the very hearing at which the invitation is extended; SZDQL at [50]. 40 By contrast, s 424B(2) is directed to the provision of information and comments by an applicant and when read with Reg 4.35(3), it sets an opening and closing period of 14 days after receipt of the invitation. It would be open to the invitee to provide the information or comments within that 14 day period but it is not open to the RRT to specify a date before the closing of that period by which the information or comments must be provided. 41 I do not consider that this difference in the operation of the two subsections leads to a different view of their objects. It seems to me that what Sackville J said in SZDQL as to the object of s 424B(3)(b) applies equally to s 424B(2). 42 However, it seems to me that there is a further aspect of the statutory purpose of those subsections which must be borne in mind when answering the question of whether a breach is jurisdictional in nature. This appears from a consideration of the part which those subsections play in the codified regime of procedural fairness contained in Div 4 of Part 7 of the Act .


case_text: On 20 December 2006 I published my reasons for concluding that the defendant should be found guilty on three charges of contempt (see Australian Securities & Investments Commission v Pappas [2006] FCA 1785]). The present reasons should be understood in the light of and as an extension of those reasons. On 20 December 2006, I gave directions for the parties to make submissions on the appropriate penalty for contempt. I have now received written submissions on behalf of the Australian Securities & Investments Commission (the Commission) and the defendant and have heard oral submissions on behalf of both parties on that question. 2 Ordinarily, subject to satisfaction of certain procedural requirements, the Court has power to impose a term of imprisonment, to impose a fine and to make costs orders as punishment for contempt. The principles that are relevant to the question of penalty in a case such as the present are as follows: • the seriousness of the contempt; • whether the contemnor was aware of the consequences of contempt; • the actual or potential consequences of the contempt; • the reason or motive for the contempt; • whether the contemnor has received or will receive a benefit from the contempt; • whether genuine contrition has been expressed by the contemnor; • the character and antecedents of the contemnor; • what punishment is required to deter the contemnor in particular and others of a like mind generally from similar disobedience to orders of the Court. The defendant did not quarrel with those principles as being relevant to the assessment of penalty in the present proceeding. 3 However, the defendant points to a failure to comply with the Rules of the Federal Court concerning enforcement of orders of the Court by committal. He says that, having regard to failure to comply with the Rules in connection with the Court's order of 16 September 2005, the punishment, at least in relation to the first two charges, should not include imprisonment. It is, therefore, desirable to say something about the relevant provisions of the Rules.


case_text: The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick & Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.


case_title: Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [2000] FCA 498 , 172 ALR 141

case_text: On this approach, the indemnity in respect of legal costs incurred in the present " proceeding " was not denied by s 199A(3)(a) and (2)(a). Emphasis was placed upon an accepted difference between a Statement of Claim as an originating process and a Cross-Claim . Indeed, it could also have been advanced on behalf of Mr Rickus that a Cross-Claim has been accepted as itself constituting a " proceeding " in its own right such that in the present matter before the Court there may have been two " proceedings ": cf Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [2000] FCA 498 at [5] , [2000] FCA 498 ; 172 ALR 141 at 143 per Katz J. On such an approach, the " proceeding " in which the liability of Mr Rickus was established was a different " proceeding " to the one commenced by the Applicants; and, in his own " proceeding ", Mr Rickus was neither " defending " nor " resisting " any liability. 77 Whether there be one " proceeding " before the Court or two " proceedings ", it is not considered that the legislative objective set forth in s 199A(3)(a) is to be resolved by such subtleties. The legislative objective is reasonably clear -- an officer or auditor of a company is not to be indemnified in respect to such legal costs as he incurs in defending or resisting proceedings seeking to establish the existence of the liability in issue. At all material times the Trustee was asserting a right to have a copy of the documents produced. At all materials times Mr Rickus was resisting or denying any such right on the part of the Trustee and any duty on his part to produce a copy. A " proceeding " was instituted seeking to establish the liability denied. A further " proceeding " in the form of the Cross-Claim , it may be accepted, was also instituted. The very forensic purpose of the Cross-Claim was to resist the demand for the production of a copy of the documents. Such conduct, it is considered, falls within s 199A(3)(a). The duty or obligation to produce a copy of the documents can properly be characterised as a " liability " owed to the company. 78 It is also separately considered that the fact that that finding has been made in resolution of the Cross-Claim does not lead to any different conclusion as to the application of s 199A(3)(a). The Cross-Claim was but the vehicle whereby it was found that Mr Rickus was under a " liability owed to the company ". It may be considered to be a curious result if a director of a company could otherwise escape the application of s 199A(3)(a) by simply filing a Cross-Claim in any " proceeding " in which a " liability " is sought to be established and inviting the Court to enter judgment -- either for or against him -- in the Cross-Claim and not the originating application. The object or purpose of s 199A(3) could, by such a means, potentially be thwarted.


case_title: Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261


case_title: Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963 , 160 FCR 35

case_text: A more generally expressed submission advanced by the Trustee that it was a part of the fiduciary duty owed by a director to make full disclosure is rejected. " The strong weight of judicial authority is that fiduciary duties are proscriptive rather than prescriptive; accordingly, a fiduciary does not have a positive duty to disclose information ": Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963 at [375] , [2007] FCA 963 ; 160 FCR 35 at 88 per Jacobson J. Reference may also be made to one of the authorities there referred to by His Honour, namely Breen v Williams [1995] HCA 63 , 186 CLR 71. Gaudron and McHugh JJ there observed (at 113): In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations -- not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed. If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country. Gummow J concluded (at 137 8): Fiduciary obligations arise (albeit perhaps not exclusively) in various situations where it may be seen that one person is under an obligation to act in the interests of another. Equitable remedies are available where the fiduciary places interest in conflict with duty or derives an unauthorised profit from abuse of duty. It would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty. See also: Pilmer v Duke Group Ltd [2001] HCA 31 at [74] (per McHugh, Gummow, Hayne and Callinan JJ) and [127] (per Kirby J), [2001] HCA 31 ; 207 CLR 165 at 197 8 and 214; P & V Industries Pty Ltd v Porto [2006] VSC 131 at [12] [25], 14 VR 1 at 4 6 per Hollingworth J; Dempsey G and Greinke A, ' Proscriptive fiduciary duties in Australia ' (2004) 25 Aust Bar Rev 1.


case_title: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 , 59 ACSR 373


case_title: Australian Securities and Investments Commission v Rich [2003] NSWSC 85 , 174 FLR 128

case_text: In some circumstances, for example, it has been said that it is " the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration ": Dover v Cory [1901] AC 477. There being addressed was the responsibility of a director to inform himself as to the records of the company as opposed to the reliance he could place upon a chairman or a general manager in identifying those matters requiring his consideration. Lord Davey concluded as follows (at 492 3): In this state of the evidence, my Lords, I ask whether the course of business at the board meetings, as described by the respondent, was a reasonable course to be pursued by the respondent, and other directors, or whether the knowledge which might have been derived from a careful and comparative examination of the weekly states and quarterly returns from the different branches of the bank ought to be imputed to the respondent, or (alternatively) whether he was guilty of such neglect of his duty as a director as would render him liable to damages. I do not think that it is made out that either of the two latter questions should be answered in the affirmative. I think the respondent was bound to give his attention to and exercise his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so. But I think he was entitled to rely upon the judgment, information, and advice of the chairman and general manager, as to whose integrity, skill, and competence he had no reason for suspicion. I agree with what was said by Sir George Jessel in Hallmark's Case [(1878) 9 Ch D 329] , and by Chitty J. in In re Denham & Co. [(1883) 25 Ch D 752] , that directors are not bound to examine entries in the company's books. It was the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration; but the respondent was not, in my opinion, guilty of negligence in not examining them for himself, notwithstanding that they were laid on the table of the board for reference. ... In other circumstances it has been said that a " chairman has the primary responsibility of selecting matters and documents to be brought to the board's attention ": AWA Ltd v Daniels (1992) 7 ACSR 759 at 867. More recently, in Australian Securities and Investments Commission v Rich [2003] NSWSC 85 at [51] [72], 174 FLR 128 at 141 7, Austin J has reviewed the authorities and considered the duties owed by a chairman of a listed company. See also: Australian Securities and Investments Commission v Vines [2003] NSWSC 1116 , 182 FLR 405.


case_title: Australian Securities and Investments Commission v Vines [2003] NSWSC 1116 , 182 FLR 405


case_title: AWA Ltd v Daniels (1992) 7 ACSR 759


case_title: Breen v Williams [1995] HCA 63 , 186 CLR 71


case_title: Clark v ING Life Ltd [2007] FCA 1960

case_text: Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.


case_title: Craddock v Sweeney [2005] QSC 037

case_text: That phrase, the Trustee contends, imposes a requirement to satisfy each of the two requirements, namely that the liability must be incurred by reason of Mr Rickus holding office, and also the requirement that the liability must be incurred whilst he was acting in the capacity as an officer of the Trustee. The construction of any individual deed must obviously depend upon the terms of the deed under consideration. But the construction now being advanced on behalf of the Trustee is consistent with a conclusion expressed in respect to a comparable provision in Craddock v Sweeney [2005] QSC 037 at [18]. 34 In the present proceeding, the Trustee contends that Mr Rickus cannot bring himself within this phrase because he ceased to be a director of the Trustee on 10 December 2006 and the present proceeding was not commenced until September 2007. At the time the liability to costs was incurred it is contended that Mr Rickus was not a director and was not " acting in the capacity of an officer of the Company ". 35 It is not considered that this argument should prevail. Clause 2.2 confers an indemnity in respect to a " liability for legal costs ". The indemnity extends to the payment of such costs " in respect of a Liability incurred ... by virtue of holding office as and acting in the capacity of an officer of the Company ". The " Liability " there referred to is the " Liability " to accede to the claim for the return of the documents. At the time the documents were produced by Mr Rickus to the Authority, and at the time the first demand was made for the return of those documents, and that demand was resisted, Mr Rickus remained a director of the Trustee. Indeed, it was because he was a director that the Trustee maintains that he was under a duty to return the documents or a copy of the documents.


case_title: Daniels v Anderson (1995) 37 NSWLR 438


case_title: Darvall v North Sydney Brick & Tile Co Ltd (1989) 16 NSWLR 260


case_title: Dover v Cory [1901] AC 477


case_title: Edman v Ross (1922) 22 SR (NSW) 351


case_title: Grundy v Lewis [1998] FCA 563

case_text: Had the entirety of the proceeding been concluded in July 2008 by the discontinuance by the Applicants of their claim for relief, it may well have been that an order for costs, or some part of the costs that had been incurred, would have been made in favour of Mr Rickus. In Smith v Airservices Australia Stone J, for example, referred with approval to the following observations of Cooper J in Grundy v Lewis [1998] FCA 563: Although the power to award costs is unfettered, there is in the Federal Court Rules an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties ... unless the court otherwise orders (see for example O 22 r 3, O 62 r 26). This " underlying policy ", according to Her Honour, had not " hardened into a usual rule ": [2005] FCA 997 at [44] . But the " underlying policy " may well have indicated that Mr Rickus may have obtained a favourable costs order. Whether or not he was exposed to a duty or obligation to produce to the Trustee the documents or a copy of the documents he had been required to produce to the Authority, would have been an issue not requiring resolution.


case_title: Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700


case_title: Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541


case_text: A related proceeding was also commenced by the Trustee. The Respondents to that proceeding were the Authority and Mr Rickus. In that proceeding, judicial review was sought of the Authority's decision to refuse to return the documents produced by Mr Rickus to the Trustee. That application was dismissed: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 , 169 FCR 483. 14 Leave was given to the Applicants on 28 July 2008 for the discontinuance of the present proceeding. The question of costs was reserved. 15 Now before the Court are two issues, namely: (i) the resolution of the Cross-Claim filed by the First Respondent; and (ii) the order as to costs arising out of the discontinuance of the proceeding. 56 One difficulty was that the Authority sought an opportunity to itself make submissions. The Authority had previously been joined as the Second Respondent, in November 2007. But it had taken no real part in the present proceeding thereafter. Its participation was substantially confined to the related proceeding: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828. The Authority's renewed interest in the present proceeding occurred during the course of submissions in reply being advanced on behalf of Mr Rickus. The Authority, it was said, had an interest in being heard as to whether a person upon whom a notice had been served under s 255 of the 1993 Act thereafter came under a duty such as that now sought to be espoused by the Trustee. Notwithstanding the lateness of its expressed interest, the opportunity for the Authority to file written submissions confined to that issue was not opposed by Senior Counsel on behalf of the Trustee. Directions were made for the filing of written submissions and for submissions in reply by both Mr Rickus and the Trustee. 57 Any contention that, by seeking leave to discontinue its claims as against Mr Rickus, the Trustee was thereby precluded from resisting the Cross-Claim is to be rejected. The abandonment of a claim pursued as an applicant is not considered to be the abandonment of any defence that an applicant may otherwise have to a cross-claim. By seeking leave to discontinue, the Trustee was simply contending that it no longer wished to pursue its own claim for relief -- for whatever reason. The Trustee's decision to seek leave to discontinue the Application in July 2008 may well have been influenced by the fact that it had already obtained copies of most of the documents previously produced to the Authority by Mr Rickus, or by the stage reached in relation to the inquiries being pursued by the Authority. But, whatever the reason which motivated the Trustee, leave was given to discontinue. It thereafter remained a matter for Mr Rickus to decide whether he wished to pursue his Cross-Claim or whether he too would seek to discontinue that action. If the Cross-Claim was to be pursued, the Cross Respondent was entitled to rely upon whatever issues had been legitimately raised in the Defence as filed. A discontinuance of an application is not to be construed in some way as some implied amendment of a defence as filed to a cross-claim. 58 But it was the further contention of Mr Rickus as to prejudice that had the potential to occasion greater procedural difficulty. It was his contention that, had the source of the duty been more fully articulated at the outset of the hearing of the Cross-Claim , there would have been cross-examination of a number of witnesses in order to establish facts that were not otherwise considered to be relevant. A number of such outstanding facts were immediately articulated by Senior Counsel during the course of oral submissions. None of those facts then expressed were seen by Senior Counsel on behalf of the Trustee to be contentious and such as could not be the subject of agreement. A short adjournment was thus granted to enable Senior Counsel for Mr Rickus to more fully consider his position and to determine whether additional facts were also considered to be necessary. That short adjournment, however, provided insufficient time in which to properly consider the matter and the proceeding was adjourned to the following morning. 84 The other basis relied upon by the Trustee was that the documents provided by Mr Rickus were the property of the Trustee. As previously observed, it was not previously considered that an assertion as to property had been made out by the Trustee: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 at [45] , [2008] FCA 828 ; 169 FCR 483 at 494. No reason has been advanced during the course of the present hearing to reach any contrary conclusion. 85 A further submission advanced on behalf of Mr Rickus was that s 299 of the Superannuation Industry (Supervision) Act renders him " immune " from liability, " including an obligation of disclosure ". Although this provision received scant attention during the course of oral submissions, and was not adverted to at all in the Reply to the Defence to the Cross-Claim , it was a provision to which reference was made in written submissions and leave was sought (if necessary) to amend to enable reliance to be placed upon it. 86 It is also an argument which can be shortly dealt with.


case_text: Two previous decisions have been given in the present proceeding. The first was on 7 November 2007 when ( inter alia ) orders previously made for the determination of separate questions were vacated and leave was granted to amend the then state of the pleadings: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117. The Authority was also then joined as the Second Respondent. A second decision was given on 26 November 2007 when ( inter alia ) the Trustee was ordered to pay the costs of Mr Rickus on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878.


case_title: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878


case_text: The " Liability " to accede to the demand of the Trustee is considered to be a " Liability " incurred at a time when Mr Rickus was " holding office as ... an officer of " the Trustee. In National Roads and Motorists' Assoc v Whitlam [2007] NSWCA 81 , 25 ACLC 688 Campbell JA observed in respect of a like provision: [78] The expression "as an officer" has in the present context the shade of meaning of "while acting in the role of an officer". If an officer is sued for a liability he or she is alleged to owe by reason of his or her actions in the role of an officer, it is within the scope of the indemnity. It is because any such liability is within the scope of the indemnity that reasonable costs incurred in defending any such assertion of liability are themselves also within the scope of the indemnity. Beazley JA and Handley AJA there agreed with Campbell JA. Special leave to appeal was refused: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484. The fact that Mr Rickus thereafter ceased to occupy that office is not considered to be a reason to reach any contrary conclusion.


case_title: New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 , 216 FLR 126

case_text: By virtue of s 140(1)(b) of the Corporations Act 2001 (Cth) a company's constitution has effect as a contract between the company and each director of the company. See: New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 at [20] , 216 FLR 126 at 130 per Barrett J. 43 Relevantly, cl 88 provides as follows: Officers: Indemnities and Insurance 88. (1) In this Article:- (a) "Legal Costs" of a person means legal costs incurred by that person in defending an action for Liability of that person. (b) "Liability" of a person means any liability incurred by that person as an officer of the Company or a subsidiary of the Company. (c) "Relevant Officer" means a person who is, or has been, a Director or Secretary. (2) To the extent permitted by law, the Company must indemnify each Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. (3) To the extent permitted by law, the Company may make a payment (whether by way of advance, loan or otherwise) to a Relevant Officer in respect of Legal Costs of that person. (4) To the extent permitted by law, the Company may pay, or agree to pay, a premium for a contract insuring a Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. (5) To the extent permitted by law, the Company may enter into an agreement or deed with:- (a) a Relevant Officer; or (b) a person who is, or has been, an officer of the Company or a subsidiary of the Company, under which the Company must do all or any of the following:- ... (d) indemnify that person against any Liability of that person; (e) make a payment (whether by way of advance, loan or otherwise) to that person in respect of Legal Costs of that person... ... Section 9 of the Corporations Act relevantly defines an " officer " as including a director. 44 The advantage to Mr Rickus should cl 88, and in particular cl 88(2), be an independent source of the indemnity sought to be invoked is that the indemnity thereby conferred would be free of the textual constraints imposed by cl 2.2 of the Deed . Clause 88(4), upon which some reliance was placed, does not assist. It is simply a provision which permits the payment of a premium.


case_outcome: considered

case_title: O'Neill v Mann [2000] FCA 1680


case_title: P & V Industries Pty Ltd v Porto [2006] VSC 131 , 14 VR 1


case_title: Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165


case_title: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622


case_title: Smith v Airservices Australia [2005] FCA 997 , 146 FCR 37

case_text: Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J. 99 Had the entirety of the proceeding been concluded in July 2008 by the discontinuance by the Applicants of their claim for relief, it may well have been that an order for costs, or some part of the costs that had been incurred, would have been made in favour of Mr Rickus. In Smith v Airservices Australia Stone J, for example, referred with approval to the following observations of Cooper J in Grundy v Lewis [1998] FCA 563: Although the power to award costs is unfettered, there is in the Federal Court Rules an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties ... unless the court otherwise orders (see for example O 22 r 3, O 62 r 26). This " underlying policy ", according to Her Honour, had not " hardened into a usual rule ": [2005] FCA 997 at [44] . But the " underlying policy " may well have indicated that Mr Rickus may have obtained a favourable costs order. Whether or not he was exposed to a duty or obligation to produce to the Trustee the documents or a copy of the documents he had been required to produce to the Authority, would have been an issue not requiring resolution.


case_text: In resisting the claim for production of the documents, it is further considered that at the time the demand was first made for the production of those documents, and whilst Mr Rickus remained a director, he was acting bona fide and in a manner which he reasonably considered was in the best interests of the Trustee. It was the genuineness of his belief which enabled his conduct to remain properly characterised as " acting in the capacity of an officer ". A director may be opposed to the views of his company but still act in the due performance of his office: Talbot v NRMA Ltd [2000] NSWSC 887 , 50 NSWLR 300. Hodgson CJ in Eq there observed: [24] In my opinion it is clear that it is insufficient that the director honestly believes that this action is required: the director must also be acting reasonably. That is the position in relation to trustees: Re Knox's Trust [1895] 2 Ch 483; McGregor v McGregor (No 2) [1919] NZLR 286. [25] In my opinion, in cases like these, before taking the extreme step of bringing legal proceedings against the company, a director must take into account not only the director's own view of what is in the company's interests, but also the views of others; and in that regard the director should not be too ready to attribute dishonesty or unreasonableness to other persons, and the director should take into account his or her own fallibility. The director should also take into account all the consequences of bringing proceedings against the company, including the consequences of the court decision going either way, and the costs of litigation. However, if, having done all these things, the director believes that it would be in the interests of the company that the company be subject to litigation, and that he or she would be in breach of his or her own duties as a director if the proceedings were not taken, and if those beliefs are both honest and reasonable, then it seems to me that the bringing of the proceedings should be regarded as due performance of the director's office, so that the director would be entitled to expenses and an indemnity from the company. 38 If this construction of cl 2.2 is not correct, it would be open to the Trustee to make the demand upon Mr Rickus by reason of him occupying the position of director and thereafter deny him the benefit of the indemnity by simply removing him from his position. In resisting the demand for the return of the documents, it is thus concluded that Mr Rickus was acting bona fide and that the legal costs he incurred were costs " incurred in respect of " that " Liability ". 39 Also rejected is an argument advanced by the Trustee that there was a failure on the part of Mr Rickus to give such notice as is required by cl 2.5. Notice of an intention to invoke the right to indemnity was provided by way of an exchange of correspondence from the solicitors acting for Mr Rickus to the solicitors acting for the Trustee, first by way of a letter dated 16 May 2007, and again by way of a letter dated 3 October 2007.


case_title: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484


case_title: Whitlam v National Roads and Motorists' Assoc Ltd [2006] NSWSC 766 , 202 FLR 153

case_text: For the purposes of resolving the Cross-Claim , it may be accepted that indemnities protecting directors against liabilities incurred whilst performing their duties, including indemnities protecting directors of public companies, are of importance in ensuring that highly qualified and experienced people are attracted to assume the responsibility: cf Whitlam v National Roads and Motorists' Assoc Ltd [2006] NSWSC 766 at [82] , 202 FLR 153 at 176 per Bergin J. Noted: 'Young P W, Corporations: Director's Indemnity Rights ' (2006) 80 ALJ 720. 18 The source of the right to claim an indemnity being advanced by the First Respondent may be traced back to the Constitution of the Trustee. 19 That Constitution provides in cl 88(5) that " the Company may enter into an agreement or deed " to indemnify an officer of the company. 63 Section 199A of the Corporations Act provides as follows: Indemnification and exemption of officer or auditor Exemptions not allowed (1) A company or a related body corporate must not exempt a person (whether directly or through an interposed entity) from a liability to the company incurred as an officer or auditor of the company. When indemnity for liability (other than for legal costs) not allowed (2) A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company: (a) a liability owed to the company or a related body corporate; (b) a liability for a pecuniary penalty order under section 1317G or a compensation order under section 1317H or 1317HA ; (c) a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith. This subsection does not apply to a liability for legal costs. When indemnity for legal costs not allowed (3) A company or related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred: (a) in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (2); or (b) in defending or resisting criminal proceedings in which the person is found guilty; or (c) in defending or resisting proceedings brought by ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established; or (d) in connection with proceedings for relief to the person under this Act in which the Court denies the relief. Paragraph (c) does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order. (4) For the purposes of subsection (3), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings. This section is effective as from 1 July 2005. The evolution of s 199A , it may be noted, has been helpfully traced by Her Honour Justice Bergin in Whitlam v National Roads and Motorists' Association Ltd [2006] NSWSC 766 at [40] [56], 202 FLR 153 at 165 71. 64 In the absence of any constraint sought to be imposed upon Mr Rickus by the Authority in respect to the disclosure to the Trustee of those documents embraced by the s 255 notice, the contention advanced on behalf of the Trustee was that it was incumbent upon Mr Rickus to make available to the Trustee copies of those documents provided by Mr Rickus to the regulator -- at least upon a request being made. It was contended that a duty to act in the best interests of the company was a duty which embraced the obligation to keep the Trustee informed as to those matters which may be of relevance to the position of the regulator. In the absence of any statutorily imposed obligation of confidence, or perhaps an obligation of confidence sought by the regulator by agreement, the contention of the Trustee was that Mr Rickus was to keep the board fully informed as to those matters which had been placed before the regulator so that the board could properly respond to such concerns as may be raised by the regulator and even modify its own practices -- even in the absence of any concern being raised by the regulator. 65 Indeed, in the absence of further explanation, it would seem surprising if a director was not obliged to bring to the attention of his board a request (for example) made of him by the present Authority to produce documents of immediate relevance to the affairs of his company; a request made of him by the Commissioner of Taxation for access to books pursuant to s 263 of the Income Tax Assessment Act 1936 (Cth); or a request made of him by the Australian Competition and Consumer Commission pursuant to s 155 of the Trade Practices Act 1974 (Cth) for the production of documents. An exercise of such statutory powers may be the precursor to a regulator imposing upon a company a variety of sanctions perceived by the regulator to be warranted. A company may wish to challenge the validity of a statutory demand made upon one of its directors. Even if no challenge is to be made, a company may wish to consider whether any further documents should also be provided to a regulator to assist it in the discharge of its responsibilities or to make submissions in respect to that material already in the possession of a regulator. In the absence of knowing the terms of any notice requiring the production of documents and having a copy of documents produced, it is difficult to see how a company could properly address such concerns as a regulator may have.


case_title: Woolworths Ltd v Kelly (1991) 3 ACSR 431


case_text: applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), 'an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents.


case_text: applicant advanced an argument based upon the judgment of Lee J in Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at [85] [87]. If his Honour is to be understood as saying that the act of considering legal advice in the course of exercising statutory power necessarily effects a waiver because the advice is taken to be 'incorporated' into the decision, it is inconsistent with the above authorities and cannot be accepted. There may be cases where a statutory decision-maker does some positive act to rely upon advice to support its decision (which is one possible construction of Candacal ) . Whether or not this would constitute a waiver is not material to the present case because nothing done by the Review Board reveals that it has done any positive act of reliance upon the legal advice it received making it inconsistent for it to maintain the confidentiality in the communications. The applicant does not contend that the disclosure of the documents by the staff of the OFLC, as secretariat to the Review Board, to the Attorney-General's Department constitutes a waiver of privilege accepting, rightly or wrongly, that there is no such waiver by force of the combined operation of the Legal Services Directions 2005 (cl 10.1) and subs 55ZH(1) and (4) of the Judiciary Act but contends that the disclosure of the documents by the Attorney-General's Department to the AGS solicitor for the Attorney-General does constitute such a waiver. I cannot agree, and for the following reasons.


case_text: for the applicant referred me to the decision of a Full Court of this Court in Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087 ; (2001) 113 FCR 456 at [37] [39] in support of the contention that there cannot be privilege of the type asserted where the body involved is obliged to accord natural justice. However, I have not found this reference to be of any real assistance, presumably because in dealing with the question of disclosure of a particular document, the Court in Carlos was not concerned with broad principles of natural justice, nor was it concerned with issues of privilege. The focus of the passage relied on by the applicant is not a distinction between the provision of information to a decision-maker from an internal or external source, but rather a distinction between the provision of factual material that is relevant to the decision, and the provision of information which is not related to the facts of the matter.


case_text: to the applicant's primary submission that privilege in the documents did not arise, the applicant acknowledges what was said by a Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [67] that '... [s] ince the decision of the majority of the High Court in [Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54] , it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ and 74-75 per Brennan J.' (Emphasis added) but submits that the nature of the Review Board is such that it could not engage in communications of the kind here in issue in a manner such that those communications could be confidential as against the applicant. The Review Board was obliged to disclose the advice to the applicant as a matter of procedural fairness. This submission is developed in the following way. The Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted. The Attorney-General's response to the first of the bases of implied waiver is that the mere reference to an advice as being relevant or as having contributed to a decision in the course of defending a judicial review proceeding would not be inconsistent with the maintenance of the privilege, in reliance on what was said in Rio Tinto (at [67]): 'This is because the decision-maker (here the Commissioner) would not put such legal advice in issue merely by saying that the advice was relevant or contributed to his decision. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of the privilege.' The Attorney-General's response to the second of the bases of implied waiver is itself multi-based. First, that the Review Board is but an emanation of the Commonwealth. This is not a case of common interest, it is a case of single interest and disclosure only within one body politic. Second, the disclosure was not inconsistent with the maintenance of the privilege. Third, the disclosure is, in any event, protected from waiver by subs 55ZH(4) of the Judiciary Act 1903 (Cth). As a Full Court of the Federal Court noted in Rio Tinto (at [45]), the inconsistency principle expressed by the High Court in Mann v Carnell requires the court to 'focus upon the facts of the particular case'. Accordingly, other cases in which implied waiver has been considered 'provide limited guidance unless they arise out of similar facts'. Inherent in the passage quoted from the Full Court's judgment in Rio Tinto at [19] supra, is the conclusion that the act of using legal advice in a way that contributes to a statutory decision does not itself constitute a waiver of privilege. This conclusion was also at least implicit in Waterford : there would have been no point in allowing legal privilege in respect of communications to persons exercising statutory powers if consideration of the advice in the course of exercising those powers would effect a waiver of the advice.


case_text: majority of the High Court expressed the general principles of implied wavier in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 as follows (at [29]): 'Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.' As a Full Court of the Federal Court noted in Rio Tinto (at [45]), the inconsistency principle expressed by the High Court in Mann v Carnell requires the court to 'focus upon the facts of the particular case'. Accordingly, other cases in which implied waiver has been considered 'provide limited guidance unless they arise out of similar facts'. In applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), 'an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents. Secondly, even if the delivery of the documents by the Attorney-General's Department to the AGS solicitor for the Attorney-General could be characterised as a 'disclosure', any such disclosure was not conduct that was inconsistent with the maintenance of the privilege. The majority's analysis of the disclosure in Mann v Carnell is instructive in this context (at [33]): It does less than justice to the respondent's position to describe what occurred in the present case as disclosure to a third party. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory's Executive, the Chief Minister, in response to a question raised by a member of the Territory's Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although "disclosure to a third party" may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an over-simplification of the circumstances of the present case. (Emphasis added.)' The distinction that the applicant seeks to maintain between the Department and its responsible Minister is contrary to the constitutionally entrenched position of Ministers as officers appointed by the Governor-General to administer such departments as may be established. Nor does the disclosure of the documents to the Attorney-General, or his solicitor, as a party to these proceedings, confer some forensic advantage on him over the applicant, such as requires this Court to order their production. For one thing, the Attorney-General (or the Department for that matter) did not obtain a copy of the advice prior to the Review Board making its decision. Further, and significantly for present purposes, references to forensic advantage place a gloss on the nature of the Attorney-General's role in applying for review of these decisions. The Attorney-General was not a 'contradictor' in these applications, in the sense in which that word is traditionally used. Other than the power to request a review of the decisions, the Attorney-General took no active part in the proceedings before the Review Board. Further, it is clear from subs 42(2) of the Act, pursuant to which the Attorney 'must' apply for review where a 'Participating Minister' asks him to do so, that on some occasions the Attorney-General does not even have a discretion as to whether or not to trigger the review process.


case_text: to the applicant's primary submission that privilege in the documents did not arise, the applicant acknowledges what was said by a Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [67] that '... [s] ince the decision of the majority of the High Court in [Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54] , it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ and 74-75 per Brennan J.' (Emphasis added) but submits that the nature of the Review Board is such that it could not engage in communications of the kind here in issue in a manner such that those communications could be confidential as against the applicant. The Review Board was obliged to disclose the advice to the applicant as a matter of procedural fairness. This submission is developed in the following way. The Attorney-General's response to the applicant's primary submission is relatively simple. The documents that are the subject of the applicant's motion were clearly brought into existence for the dominant purpose of providing legal advice to the Review Board. The fact that the advice was sought in the context of the Review Board's exercise of its statutory powers does not in any way impact upon the dominant purpose for which the documents were created, nor does it preclude a claim of privilege being made in respect of them. Support for this, he submits, can be found in the majority judgments in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54, especially Mason CJ and Wilson J at 63 64 and Brennan J at 74 75. The Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted. I am not persuaded that some over-arching consideration of procedural fairness which, it is alleged, gives rise to an obligation of the Review Board to disclose the relevant documents to the applicant, a proposition itself attended with considerable doubt, means that privilege in the documents did not arise. The applicant's submissions were framed on the basis that it would be wrong to extend the principle of privilege to communications brought into existence for the dominant purpose of seeking or providing legal advice by or to a statutory board or tribunal required by its statute to operate autonomously from the rest of the executive government. However, I see this issue not so much as an extension of the principle enunciated in Waterford but an attempt to carve out of the reasoning processes of the members of the High Court in that case, an exception which is not there; in other words, to read what their Honours said as containing some implied exception so that it is not to be read as applying to staff involved with statutory boards or tribunals, such as staff of the OFLC, the statutory agency which provides secretariat support to the Review Board. I am unable to read into Waterford any such exception. It follows, in my view, that the documents are privileged. It further follows, in my view, that the privilege holder is the Commonwealth. As indicated above, the applicant concedes as much but submits that because the client is the Review Board, the privilege is confined or limited to an emanation of the Commonwealth and does not extend for the benefit of any other emanation of the Commonwealth. The applicant seeks to find support for the submission in the provisions of s 55ZH of the Judiciary Act 1903 (Cth) and cl 10 of the Legal Services Directions 2005 made pursuant to s 55ZH of that Act. Those provisions, it submits, would be rendered otiose if the Commonwealth's privilege was not confined or limited to the Review Board but extended to all its emanations. I do not agree. While cl 10 of the Legal Services Directions 2005 is confined to sharing of legal advice within government, subs 55ZH(1) of the Judiciary Act 1903 (Cth) is not confined to cl 10 of the Legal Services Directions 2005 but extends to any requirement of a Legal Services Direction of the kind described whether the person to whom the information is being provided or the document is being produced is within government or not. Moreover, having regard to the definition of 'Commonwealth legal work' in subs 55ZF(3), in particular sub-par (b)(iii), subs 55ZH(2) is clearly not confined to the provision of information or the production of a document to the Attorney-General, or to a person authorised by him, in which Commonwealth privilege already subsists. So understood, a provision such as a subs 55ZH(4) is necessary to prevent waiver of privilege where the privilege holder is not the Commonwealth. Inherent in the passage quoted from the Full Court's judgment in Rio Tinto at [19] supra, is the conclusion that the act of using legal advice in a way that contributes to a statutory decision does not itself constitute a waiver of privilege. This conclusion was also at least implicit in Waterford : there would have been no point in allowing legal privilege in respect of communications to persons exercising statutory powers if consideration of the advice in the course of exercising those powers would effect a waiver of the advice.


case_text: Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted.


case_text: follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].


case_title: City of Wanneroo v Holmes (1989) 30 IR 362


case_title: Kucks v CSR Limited (1996) 66 IR 182


case_title: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211


case_title: Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209


case_title: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84


case_title: Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56; [2005] HCA 10 ; (2005) 222 CLR 241


case_text: next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009).


case_text: next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry. Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described ( Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.