case_text: The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison's s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 210-211 [151] . 84 The principle upon which those decisions proceeded was an application of provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth). These evince a legislative intention to preserve the validity of so much of an enactment, action or instrument authorised by law as would be supported by use of the power relied upon, notwithstanding that some other part of the enactment, action or instrument in question has been found to be beyond the power relied upon for its making. Thus, s 46(2) provides that if any instrument, such as a notice under s 16(1) of the Extradition Act , made pursuant to an enactment would be construed as being in excess of the authority's power, '... it is to be taken to be a valid instrument to the extent to which it is not in excess of that power'. A search warrant has been held to be such an instrument, as McHugh JA pointed out in Peters 16 NSWLR at 41E. Accordingly, he held that the search warrants in that case were to be read and construed, to the extent that they could be read, as valid instruments. He applied what Dixon J had said in Andrews v Howell [1941] HCA 20 ; (1941) 65 CLR 255 at 281 in relation to ss 15A and 46 of the Acts Interpretation Act . A notice under s 16 of the Act is also such an instrument. 87 When Peters 16 NSWLR 24 was affirmed in Love v Attorney-General (NSW) [1990] HCA 4 ; (1990) 169 CLR 307 the issue of severance of the warrants was put to one side. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that it was clear that a warrant could, and had, to be construed so as not to do what the statute under which it was authorised itself did not purport to do. They held a State statute did not purport to authorise a breach of a federal law, s 219B of the Customs Act 1901 (Cth). They found that the warrants in that case were wholly valid ( Love 169 CLR at 323).


case_outcome: cited

case_title: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 47

case_text: Importantly, s 16(3) contemplates that the Attorney-General may give a notice before an individual has been remanded under s 15. So, Senator Johnston had power to give a fresh s 16(1) notice when he did, even though Mr Tervonen was not then held on remand pursuant to s 15 because any reasonable time under s 17(2) for giving a notice after 18 August 2006 had long since expired and, in any event, no attempt had been made to seek such an extension from a magistrate. That is, even though Mr Tervonen was not being held in custody under s 15, and his detention was unlawful, the Act did not operate to deprive Senator Johnston of the power to give a fresh s 16(1) notice. That is because the power to issue a notice under s 16(1) had not been exercised validly, and thus at all, before then: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. Senator Ellison's s 16 notice was affected by jurisdictional error and was '... no decision at all': Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.


case_title: Re Patterson; Ex parte Taylor (2001) 207 CLR 39

case_text: It follows that Senator Johnston was authorised to administer the provisions of the Extradition Act by force of s 19A(1) of the Acts Interpretation Act : Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403 [17] - [18] per Gleeson CJ, 416 [67]-[68] per Gaudron J, 451-452 [182]-[187] per Gummow and Hayne JJ, 497-500 [319]-[325] per Kirby J, 519 [380] per Callinan J. He had power to act as the Attorney-General for the purposes of the Extradition Act in circumstances of the present matter. 131 During the course of the hearing before me privilege was waived, in stages, on a number of different portions of the material before Senator Johnston. As privilege was waived, a greater appreciation of what was before the Minister emerged. First, there was a partial waiver of some of the redacted material in the briefing note and other documents which recorded Senator Johnston's decision of 30 April 2007 to issue the amended s 16 notice. Secondly, Senator Johnston waived privilege that had previously been claimed over the whole of the dual criminality advice provided to him by the CDPP. Next, some further material was revealed in the decision record of 30 April 2007. Lastly, the departmental advice to Senator Johnston about the reconditions for the issue of the s 16 notice was completely revealed. 132 Mr Tervonen argued that pars (24)-(52) and (57)-(58) of Senator Johnston's s 16 notice had been founded on warrant 5. He complained that these paragraphs in the s 16 notice were deficient on two bases: (1) As to pars (24)-(27), (30)-(32), (34), (37)-(39), (41), (42), (44), (45), (49), (50), (57) and (58) Mr Tervonen said that these paragraphs, superficially, appear to relate to the material before the Minister, but the dates of the acts or omissions in that material and the notice do not relate to the dates in warrant 5. Accordingly, that disconformity, if established, renders at least those paragraphs in the s 16 notice bad. (2) As to pars (24)-(52), (57) and (58) Mr Tervonen argued that pars 28, 29, 33, 35, 36, 40, 43, 46-48, 51 and 52 as well as those in (1) above were not based on sufficient material identifying Mr Tervonen's alleged acts or omissions.


case_outcome: applied

case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E Lord Wilberforce construed a statutory power in the 'subjective form' - 'if the Secretary of State is satisfied' - as raising two matters capable of review by the Court. First, where a judgment is to be made by the repository of a power, if the statute requires there to be some facts upon which the judgment is to be exercised, the Court may enquire into whether those facts exist. The evaluation of the facts is for the repository of the power alone, but his Lordship continued: '... the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge ...' (See too Attorney-General v Reynolds [1980] AC 637 at 657G-659C per Lord Salmon giving the advice of the Judicial Committee.)


case_text: In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 119-120 per Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test: '... nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.' 96 While s 46(2) of the Acts Interpretation Act requires the Court to approach the continued operation of an instrument, part of which has been made in excess of power, with a presumption of validity, that does not deny the application of the principle identified in Australian Stevedoring 88 CLR at 119-120. If the Court comes to the conclusion that in truth the power of the Attorney-General to give a notice under s 16(1) of the Extradition Act has not arisen because the conditions for its exercise did not exist in law and in fact, namely, that the opinion had not been formed under s 16(2)(a)(ii) , then s 46(2) of the Acts Interpretation Act will not apply. This is because of the requirement that unless the opinion required by s 16(2)(a)(ii) has been formed by the Attorney-General on a proper basis, the chapeau in s 16(2) provides that he or she shall not give the notice under s 16(1).


case_text: The CDPP's advice in relation to offence 2 in warrant 1, which became the subject of par (2) in the notice, was similar in its failure to identify any act or omission of Mr Tervonen. Thus, the concrete exercise described by Gleeson CJ, McHugh and Heydon JJ in Truong v The Queen [2004] HCA 10 ; (2004) 223 CLR 122 at 142 [29] , 143 [33] (and see too per Hayne J at 185 [189], 187 [196]-[197]) could not be performed because the description of the factual elements failed to identify acts or omissions of Mr Tervonen. 63 Similarly the CDPP's advice in relation to offence 4 in warrant 1, which became the subject of par (3) in the notice, asserted that Mr Tervonen acted in concert with one Seppala and 'ordered, hired or otherwise intentionally persuaded three persons to order goods from various suppliers' (emphasis added). Once again, this description is too general. If the case were based on circumstantial evidence, the acts or omissions of Mr Tervonen from which the inference of his complicity could be drawn needed to be stated. Did Mr Tervonen order one of the three people to do something? Did he hire one of them to do it? Did he 'otherwise intentionally persuade' someone? Or, did he direct Seppala to do one or more of those things? As Gleeson CJ, McHugh and Heydon JJ observed in Truong 223 CLR at 143 [33] (in relation to whether a person extradited to Australia on charges of conspiracy to kidnap and murder a man could be convicted of the substantive offences of the kidnap and murder by procuring them to occur): 'Agreement (here, agreement to commit a crime) is the essence of conspiracy, but the nature and scope of the alleged agreement is important when performing the exercise, required by the statute, of identifying the acts or omissions by virtue of which the particular offence of conspiracy in question has, or is alleged to have, been committed.' 64 The generality and abstraction of the CDPP's description of offence 4 in warrant 1 was such that Senator Ellison could not have formed the opinion required by s 16(2)(a)(ii) in respect of par (3) of his s 16 notice. There was a similar absence of acts or omissions of Mr Tervonen in the material before Senator Ellison in respect of the following: Warrant Offence number in warrant Paragraph number in Senator Ellison's s 16 notice 1 5 4 1 8 6 1 9 7 1 10 8 1 11 9 2 1 and 2 10 2 5 12 (see below) 4 1 17 (see below) 4 2 18 4 4 19 4 5 20 4 6 21 4 7 22 4 10 23 5 1-8, 10-14, 16-19, 21, 22, 24-28, 30-33, 35-39, 41-43, 45-56 24-52 (see below) 7 1 55 8 1 56 (see below) 65 Offence 5 in warrant 2 was described as a registration offence under Chapter 16, section 7(1) of the Finnish Penal Code. This became the subject of par (12) in Senator Ellison's s 16 notice. The CDPP described it in these terms: 'The allegation is that [Mr] Tervonen, together with others, provided false information to the National Board of Patents and Registration of Finland by providing information to be entered in the register ...' that three named persons had taken up particular positions in respect of a company when none of them had consented to do so. The CDPP continued: 'Whilst it is not directly stated in the acts and omissions, there is a reference under the heading Evidence to the fact that the signatures of [two of the persons] have not been made by the persons themselves. If the magistrate accepts that this information forms part of the statement of acts and omissions, the conduct may amount to an offence of using a false instrument contrary to s 300(2) of the Crimes Act 1900 (NSW).' 92 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664). 101 There is no basis to sever portions of Senator Ellison's s 16 notice. He never formed the opinion under s 16(2)(a)(ii) based on considering Mr Tervonen's alleged conduct. That step was a precondition of the exercise of the power to give the notice, as s 16(2) provided. As Gleeson CJ, McHugh and Heydon JJ said in Truong 223 CLR at 142 [29] the exercise required by s 16 is a concrete one, not an abstract one. They said it was to proceed by reference to the actual conduct alleged against the person in question. 170 The concrete exercise required by s 16 ( Truong 223 CLR at 142 [29]) required Senator Johnston to consider the actual conduct alleged against Mr Tervonen before he could form any opinion about the matters in warrant 5. Apart from the above offences in relation to Ms Lindholm, the actual conduct alleged against Mr Tervonen in the material before Senator Johnston was at too great a level of generality, or even abstraction, to enable him to form an opinion which satisfied the requirements of s 16(2)(a) of the Act and Art 7(2)(a) of the treaty. As the Full Court pointed out in Williams 157 FCR at 297 [45], what was required was 'a statement of what is alleged to have been actually done or omitted'. The material before Senator Johnston failed to identify what Mr Tervonen was alleged actually to have done or omitted to do in a manner which would enable the identification of any part of his conduct as amounting to an equivalent offence in New South Wales had he done or omitted to do those or some of those things in that State.


case_text: A principal object of the Act is to codify the law in relation to the extradition of persons from Australia to extradition countries without determining the guilt or innocence of a person whose extradition is sought. A second object is to enable Australia to carry out its obligations under extradition treaties (s 3(a) and (c)). The Act is structured in a way that permits decisions to be taken at a number of points in the extradition process which may halt that process, either in part or entirely. The Act contemplates four stages in the extradition process, namely: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person be surrendered: Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 628 [29] per Gleeson CJ, 635-636 [55] per Gummow and Hayne JJ (with whom Heydon J agreed on this issue at 676 [222]), 657 [144] per Kirby J applying Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. Mr Tervonen's applications in the present case arise at an early point in the process. 9 Initially an extradition country, here Finland, must make an application to a magistrate, sitting as persona designata , for the issue of a warrant for the arrest of a person under s 12(1) of the Act. If the magistrate is satisfied, on the basis of the information given by affidavit, that the person is an extraditable person in relation to the extradition country, the magistrate must issue the warrant in statutory form for the arrest of the person (s 12(1)(b)). The magistrate must then send to the Attorney-General a report saying that he or she has issued the warrant together with a copy of the affidavit (s 12(2)). The Attorney-General is then given a discretion, by s 12(3), to cancel the warrant where he or she decides not to issue a notice under s 16(1) in relation to the person or considers for any other reason that the warrant should be cancelled. Cancellation is effected by the Attorney-General directing the magistrate to cancel the warrant (s 12(3)). 10 If the warrant is not cancelled, the person, when found, is then arrested and must be brought before a magistrate in the State or Territory where the arrest occurs as soon as practicable (s 15(1)). Unless there are special circumstances justifying the remand of a person on bail, the magistrate must remand the person in custody for such period or periods that may be necessary for the proceedings to be brought, relevantly, under s 19 of the Act (s 15(2) and (6)). 88 It is important to bear in mind that in determining whether a notice given by the Attorney-General or Minister is wholly or partly valid for the purposes of s 16 of the Extradition Act , one of the significant effects of the notice is that it will authorise the detention in custody of the person who is its subject: Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ. In George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a search warrant authorised an invasion of premises without the consent of the persons in lawful possession or occupation. They said that the validity of such a warrant was necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the Court noted that the legislature had sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions to his privacy and property. They noted that in enacting the section authorising the issue of search warrants, the Queensland legislature had given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. However, the Court pointed out that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions. They then discussed the exceptions which many State and Commonwealth statutes had made to the common law position. They said ( George 170 CLR at 110-111): 'Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.' 100 The filter which the Parliament intended be applied to extradition requests under s 16 was the formation of a genuine and real opinion by the Attorney-General, or other Minister exercising the power to give a notice under s 16(1). A notice under s 16 provides a lawful authorisation for the continuing detention of a person pursuant to the operation of s 17 of the Act. The Court should not impute to the Parliament an intention to authorise interference with the fundamental right to liberty where it does not appear that the Attorney-General or Minister actually turned his or her mind to the question s 16(2) requires be addressed: Coco 179 CLR at 537; see too Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ.


case_text: In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]: 'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.' 213 I am comfortably satisfied that on the material before me, which it was in the power of the Minister to supplement, had he chosen, by revealing in evidence the redacted portions of the material before him, Senator Johnston failed to discharge the exact function he was required to discharge in accordance with law ( Vetter 202 CLR at 454 [36]). In those circumstances, it would be wrong to sever portions of the instrument based on mere speculation that, despite the errors I have found, and the absence of evidence of what he was told could be invalid in Senator Ellison's notice, the Minister addressed the rest of the amended s 16 notice correctly. He has provided no evidence to support a finding that he did. Rather, I am of opinion that by reason of the jurisdictional and other errors in his failure to address those parts of the amended s 16 notice which I have found to be invalid, and on the evidence before me, Senator Johnston did not form the opinions required by s 16(2)(a)(ii) in respect of any paragraph in the notice. 214 For the reasons that I have given, I am of opinion that Mr Tervonen's challenges have succeeded in substance. In summary, I have formed the preliminary view that, subject to hearing the parties, I should make orders to the effect of: (a) declaring each s 16 notice invalid; (b) quashing each s 16 notice; (c) directing the Minister to issue a notice in statutory form pursuant to s 17(1)(b) of the Act directing a magistrate to order the release of Mr Tervonen from custody; (d) requiring the Minister to pay Mr Tervonen's costs. 215 The parties asked that I provide them with my reasons and an opportunity to address the precise form of relief. I will therefore order that the proceedings be stood over for argument on the appropriate relief to give effect to these reasons. I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 6 November 2007 Counsel for the Applicant: DPM Ash (pro bono pursuant to O 80 of the Federal Court Rules) Counsel for the Respondent: KC Morgan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23, 24 July 2007 Date of Judgment: 6 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1684.html


case_text: In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]: 'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.'


case_outcome: distinguished

case_text: The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison's s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 210-211 [151] .


case_text: Later in 2006, Mr Tervonen commenced these proceedings, challenging Senator Ellison's notice. I refused interlocutory relief on the basis of Mr Tervonen's challenges, as then formulated by him when he was self-represented: Tervonen v Minister for Justice and Customs [2007] FCA 464. Shortly after I delivered my judgment, the Full Court of this Court handed down its decision in Williams v Minister for Justice and Customs (2007) 157 FCR 286. I then appointed counsel under O 80 of the Federal Court Rules 2001 (Cth) to represent Mr Tervonen on the final hearing. His counsel has reformulated Mr Tervonen's claims. 3 On 30 April 2007, before the date of the final hearing, Senator Ellison's successor in the office of Minister for Justice and Customs, Senator the Honourable David Johnston, signed what was intituled 'Amended Notice of Receipt of Extradition Request' under s 16(1) of the Act. That second s 16 notice was given in respect of all of the original offences in Senator Ellison's notice together with seven further ones identified in its paragraphs (57) and (58). 4 Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison's s 16 notice was invalid because: (1) the Minister did not have before him any statement of Mr Tervonen's conduct or his acts or omissions and so Senator Ellison could not form the opinion which s 16(2)(a)(ii) required, viz, that the same, or equivalent conduct, acts or omissions, if committed in Australia, would have constituted an extradition offence in relation to Australia. The material before Senator Ellison was thus said to be so deficient (relying on Williams 157 FCR at 297 [45]) that the Minister could not have formed the opinion which s 16(2)(a)(ii) required; (2) the language of the Finnish warrants on their face was incapable of satisfying the definition of 'extraditable person' in s 6(a)(i) of the Act because they did not, in terms, seek his arrest as a person actually charged or accused of an offence. Rather, they sought his arrest on the basis that they alleged that he was 'suspected with probable cause' of having committed one or a number of offences. Mr Tervonen said that the Minister could not have formed the opinion required under s 16(2)(a)(ii) in the absence of any material before him to establish that the formulation used in each of the Finnish warrants was in fact a warrant within s 6(a)(i); (3) Article 7(2) of the Treaty between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Article 3 of the Protocol between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Schedule 2 of the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen argued that because in August 2006 Senator Ellison personally did not have before him all of this material, as required by the treaty, he could not issue the notice. 5 However, Mr Tervonen's principal challenge was against Senator Johnston's s 16 notice. He argued that: (1) Senator Johnston as Minister for Justice and Customs was not able to exercise the statutory powers and functions specifically conferred on the Attorney-General by s 16 of the Act; (2) under the Act it is not open for the Attorney-General, or the Minister administering the Act, to issue a second notice in respect of the same request; (3) the particularisation of his acts and omissions in the material before Senator Johnston relating to pars (24)-(52), (57) and (58) of the second s 16 notice was insufficient to enable the Minister to form the opinion required under s 16(2)(a)(ii), so that the whole notice was invalid or those paragraphs were; (4) the language of the Finnish warrants was incapable of satisfying the statutory definition of 'extraditable person' on the same basis as ground (2) in respect of Senator Ellison's s 16 notice. 6 The Minister argued that Mr Tervonen's challenges should fail and that: • each notice was valid; • Senator Ellison's notice was not acted on by the magistrate, and so it was of no present relevance; • if any deficiency were established in respect of the material before either Minister in relation to particular paragraphs in their s 16 notices, those paragraphs should be severed and the balance of notice(s) would be valid; • Senator Johnston's s 16 notice was either a validly amended version of his predecessor's notice or a valid, newly made, s 16 notice. 39 The Attorney-General cannot be expected to be an expert in foreign law: Williams 157 FCR at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer [1995] HCA 35 ; 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. 46 However, in Williams at 157 FCR at 296 [42], the Full Court held that Cooper J's approach was incorrect. They held that s 16(2)(a)(ii) of the Act required the Minister to have before him or her a statement of what was alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition was sought: Williams 157 FCR at 297 [45], 298 [49]. In that case the material before the Minister had not included a statement of the elements of the offence in the extradition country. Gyles, Allsop and Buchanan JJ said ( Williams 157 FCR at 298 [50]): 'The opinion which must be held by the Attorney General (or the responsible Minister) under s 16(2)(a)(ii) must relate to, and be based on, actual conduct said to constitute, in a factual sense, the commission of an identified offence. In the present case there was no information before the Minister to furnish that knowledge. Accordingly, the Minister was not in a position to form an opinion about Mr Williams' conduct, whether in reliance on advice or personally, so as to conclude that the requirements of s 16(2)(a)(ii) were met. As a result the opinion was not validly formed.' 51 This offence became the subject of par (1) in Senator Ellison's s 16 notice. The elements of Chapter 36, section 2(1) of the Penal Code were not before the Minister. As the Full Court recognised in Williams 157 FCR at 298 [49], the Attorney-General or responsible Minister cannot be taken to be an expert in the foreign law. Rather, the Minister must be expected to form a view about whether identified acts or omissions (or equivalent conduct) would have constituted an extradition offence in relation to Australia. 52 The allegations concerning Mr Tervonen were set out in the CDPP's advice at a level of generality which did not identify any precise act or omission which Mr Tervonen himself was alleged to have done or omitted to do. Rather, Mr Tervonen and others were alleged to have misled a number of parties. This allegation did not identify what Mr Tervonen, or the others for that matter, did to mislead any person. Next, the CDPP's summary asserted that Mr Tervonen and the others gained control of a company in circumstances where its managing director was said not to have control over it. 53 The CDPP's advice did not put before Senator Ellison any act or omission of Mr Tervonen relating to: • his or 'the others' gaining control over the company or overriding its director; • why the director 'in reality did not have control over the company'; • the opening of accounts 'with an overdraft facility with several suppliers and service providers'; • what an 'overdraft facility' was or how it was operated on for that purpose; • how the goods and services were ordered from the supplier companies 'using the name' of the director. 57 This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82]. 76 The CDPP's consideration of offences 48, 49 and 50 in warrant 5 was confined simply to setting out a number for each of the offences, describing it in a general way and referring to the section of the Finnish statute to which the numbered offence related. There was no information whatsoever provided about the registration offences, let alone the conduct of Mr Tervonen alleged to give rise to them. The Minister had no information about any conduct of Mr Tervonen in respect of offences 48, 49 and 50 on which to form the opinion required in s 16(2)(a)(ii) to justify him signing the s 16 notice based on this material: Williams 157 FCR at 296-297 [45], 298 [50]. Other offences were included in Senator Ellison's notice, such as aggravated fraud and aggravated forgery (pars (46) and (47)) without any discussion about what the conduct was. The Minister formally conceded that pars (34)-(52) of Senator Ellison's s 16 notice should be severed from his notice. This concession was said to be made because the Minister did not have sufficient material before him to enable him to form the opinion required by s 16(2)(a)(ii) in respect of pars (34)-(52). It was correctly made. 77 Warrant 8 asserted that Mr Tervonen was suspected 'with probable cause' of the following criminal act: 'Aggravated dishonesty by a debtor, 25 June 2001 to 5 July 2001, Helsinki.' Warrant 8 stated that the grounds on which that charge was based were detailed in an appended claim for arrest, but no such claim for arrest was included in the material before Senator Ellison. 78 The CDPP's advice discussed this count, which became the subject of par (56) of Senator Ellison's notice, as follows: ' Offence 1 Aggravated Dishonesty by a Debtor Chapter 39, section 1a, Penal Code 125. If it is accepted that Tervonen was an officer of the company within the meaning of the Corporations Act 2001 (Cth) , his conduct may amount to an offence of an officer dishonestly using his position with the intention of directly or indirectly gaining an advantage for themselves or someone else, or causing a detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. 126. The maximum penalty for an offence against section 184(1) or section 184(2) the Corporations Act 2001 (Cth) , is imprisonment for 5 years (Schedule 3, Item 30).' (emphasis added) 89 In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act . They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, '... there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process'. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J. 98 I am of opinion that Senator Ellison, likewise, purported to exercise a power different from that which the statute reposed in him. Had Senator Ellison approached the function of forming the opinion required by s 16(2)(a)(ii) in accordance with law (as it had subsequently been declared in Williams 157 FCR 286), he would have noticed the deficiencies in the material before him. He would then have considered that many of the proposed paragraphs of the draft notice which he signed were not justified. I am satisfied that he did not consider the material before him in the way in which s 16(2) required. Rather, the inference which I am satisfied should be drawn is that Senator Ellison deferred to or accepted the opinion of the CDPP without himself considering any of the conduct alleged against Mr Tervonen for the purposes of s 16(2)(a)(ii). Senator Ellison simply accepted the CDPP's advice as authorising him to sign the s 16(1) notice. 99 While I have found that Senator Ellison erred in his approach, that error was understandable. I am not intending to criticise him in these reasons. He did not have the benefit of the decision, given months later, in Williams 157 FCR 286, but he acted on the then state of the law as interpreted by Cooper J in Foster 97 A Crim R 560; 158 ALR 394. 102 Moreover, I am unable to conclude that Senator Ellison applied the correct test in considering those parts of the s 16 notice which were supportable on the material before him. There is no basis to think he applied two different tests, the correct one to the material in the CDPP's advice which contained sufficient acts and omissions of Mr Tervonen to justify one or more paragraphs in the draft notice, and the incorrect one to the balance. That would be irrational. The Minister simply did not apply the right test of forming his own opinion on the manner laid down in Williams 157 FCR 286. Thus, the whole notice was invalid and there was nothing on which s 46(2) of the Acts Interpretation Act could operate. 107 If Senator Ellison's s 16 notice were invalid, Mr Tervonen argued that then Senator Johnston had no power to issue his s 16 notice. The Minister's principal submission was that it would be futile to grant relief in respect of Senator Ellison's s 16 notice because the proceedings for Mr Tervonen's s 19 hearing had been taken on Senator Johnston's s 16 notice: see Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at 194 [48] per Besanko J, with whom Moore and Buchanan JJ agreed. 111 At no time after Senator Ellison's s 16 notice was issued was the process contemplated by s 17 of the Extradition Act followed. That is hardly surprising since, at least until the decision in Williams 157 FCR 286, no-one would have considered that Senator Ellison's s 16 notice was invalid. However, it was. Thus, no s 16(1) notice had been given by the Attorney-General or Senator Ellison in the 45 day period following Mr Tervonen's remand under s 15. Therefore, s 17(2) required that Mr Tervonen be brought before a magistrate who could exercise the power to continue his remand during a period which he or she considered in all the circumstances to be reasonable for the giving of a notice under s 16 or to order Mr Tervonen's release. But that did not happen. The consequence is that no magistrate ever exercised any power under s 17(2) as the Act required. And s 17(3) required that if a s 16(1) notice was not given within the 45 day period, or a further extended period, under s 17(2), the magistrate must order the release of a person who was Mr Tervonen. 112 The language in which ss 17(2) and (3) are cast is in imperative terms. The object of those sections is to protect an individual who has been arrested and placed on remand in custody or on bail under s 15 pursuant to a warrant issued by a magistrate by the request of an extradition country. The purpose of the remand authorised by s 15 is to afford a limited period in which proper material can be placed before the Attorney-General so that he or she can determine whether to issue a notice under s 16(1). The Parliament has prescribed substantial limitations on the ability of an extradition country or the Attorney-General to delay the taking of steps to give a notice under s 16(1), should that course be pursued. 113 The process contemplated under ss 12 and 15 of a remand in custody or, in special circumstances, on bail (s 15(6)), involves an interference with the liberty of an individual who may be a subject or citizen of Australia or an alien. Executive interference with the liberty of an individual has always been jealously scrutinised by the Courts. There is a legislative intent evinced in s 17 that this should remain so for the purposes of the Extradition Act . Thus, if the magistrate is satisfied that a notice under s 16(1) is likely to be given within a particular period that is reasonable in all the circumstances, he or she is given authority to extend the time of the remand beyond 45 days. But, if the magistrate is not so satisfied, or if the period he or she allowed expires, the individual must be released from custody or discharged from any recognisances on which bail was granted to him or her (ss 17(2) and (3)). 117 But, when those advising Senator Johnston appreciated that a consequence of Williams 157 FCR 286 (which was decided on 22 March 2007) may be that Senator Ellison's s 16 notice was wholly invalid, Senator Johnston should have caused Finland to be notified so that it could decide whether to seek to have a fresh warrant issued for the arrest of Mr Tervonen so that he could be brought before a magistrate under s 12. Instead, Senator Johnston proceeded as if Mr Tervonen were lawfully on remand under s 15. 118 The First Assistant Secretary, International Crime Corporation Division, provided a memorandum to Senator Johnston on 27 April 2007. In the final but still partly redacted version of that memorandum which was tendered in evidence, the Minister was told that the deadline for consideration of the s 16 notice which he was to sign was 'as soon as possible' and that his office was aware of the urgency associated with the matter. He was told that there was a risk that the existing s 16 notice issued may be found to be partly invalid. So far as appears from the unredacted portions of this memorandum, the Minister was not made aware of the possibility that the notice might be, as I have found, wholly invalid. 119 The consequence of partial invalidity would have been that any remaining valid portions of the notice would have supported Mr Tervonen's continuing detention on remand under s 15. The memorandum informed Senator Johnston that it was arguable, in light of the decision in Williams 157 FCR 286, that: • the submission provided to Senator Ellison did not provide a sufficient description of the conduct 'constituting some of the offences for which Mr Tervonen's extradition was sought to enable the Minister to form the requisite opinion under subparagraph 16(2)(a)(ii)' (emphasis added); • as a result there was a risk that the existing notice might be found to be partly invalid; • there were also 7 additional offences referred to in pars (57) and (58) of the proposed draft notice; • the action required by him was to issue an amended s 16 notice; and • the extradition proceedings under s 19 were listed for hearing on 8 May 2007. 120 Accordingly, on the evidence before me, Senator Johnston was not aware of the possibility that Senator Ellison's s 16 notice was wholly invalid and that if it were it may have affected the obligations of Finland or Senator Johnston to bring Mr Tervonen before a magistrate. Nor does the evidence reveal which portion or portions of Senator Ellison's notice Senator Johnston was informed might be invalid. 121 What, then, is the status of Senator Johnston's s 16 notice in those circumstances? 170 The concrete exercise required by s 16 ( Truong 223 CLR at 142 [29]) required Senator Johnston to consider the actual conduct alleged against Mr Tervonen before he could form any opinion about the matters in warrant 5. Apart from the above offences in relation to Ms Lindholm, the actual conduct alleged against Mr Tervonen in the material before Senator Johnston was at too great a level of generality, or even abstraction, to enable him to form an opinion which satisfied the requirements of s 16(2)(a) of the Act and Art 7(2)(a) of the treaty. As the Full Court pointed out in Williams 157 FCR at 297 [45], what was required was 'a statement of what is alleged to have been actually done or omitted'. The material before Senator Johnston failed to identify what Mr Tervonen was alleged actually to have done or omitted to do in a manner which would enable the identification of any part of his conduct as amounting to an equivalent offence in New South Wales had he done or omitted to do those or some of those things in that State. 192 The First Assistant Secretary suggested, at one point, to Senator Johnston that he issue an amended s 16 notice. The Minister was told that, having regard to the decision in Williams 157 FCR 286, the CDPP provided further advice adding an additional 7 offences set out in pars (57) and (58). And, the First Assistant Secretary's advice also informed Senator Johnston that he had to consider each of the offences in the draft notice and determine whether he was of the opinions in s 16(2)(a)(i) and (ii). The First Assistant Secretary's briefing note then discussed some matters covering almost a page which were redacted for reasons of legal professional privilege and continued by recommending that he: '... issue a new section 16 notice ... [redactions made] ... • [redaction made] • to ensure that the additional (seven) extradition offences [redaction made] are put before the Magistrate for the purposes of his determination under section 19 Extradition Act ...' 193 The Minister was then informed that the Department considered the requirements of s 16 of the Extradition Act and Article 7 of the treaty had '... been met for the offences listed in the attached fresh section 16 notice' (emphasis added). 194 During the hearing, the parties' arguments changed from the positions taken in written submissions because more material was revealed from portions of the briefing material given to Senator Johnston after legal professional privilege was partially waived. Ultimately, Senator Johnston's attention was directed to the CDPP's fresh advice and he was informed: 'Taking into account the CDPP advice in relation to the conduct set out in the extradition request from Finland (including the supplementary documentation provided in support of the request), you may be of the opinion that if Mr Tervonen had engaged in conduct constituting the Finnish offences listed in the section 16 notice in New South Wales at the time the extradition request was received (August 2006), that conduct would have constituted extradition offences in relation to Australia.' 198 Senator Johnston did not give a fresh s 16 notice. By its very terms, his was an 'Amended Notice'. Thus, he may have proceeded on the basis that there was a risk some of Senator Ellison's s 16 notice was invalid or affected by jurisdictional error of the kind identified in Williams 157 FCR 286. But there is no basis in the evidence before me to suggest that Senator Johnston approached the matter completely afresh. I am not prepared to draw an inference that he did, on the incomplete material in evidence and the failure of the Minister to give any direct evidence of his decision-making. 199 What task Senator Johnston did undertake? Did he simply consider pars (57) and (58), being the amendments to the notice? Or, did he consider the whole of the notice afresh together with all of the material before him so as to come to the requisite opinion under s 16(2)(a)(i) and (ii) in respect of every single paragraph in the s 16 notice which he signed? 200 It is not uncommon when an amendment is made for the person making it to review the whole document, as amended, for the purposes of seeing that it then, as a whole, reflects that person's intentions or objectives. Thus, it is conceivable that Senator Johnston read all the material and satisfied himself that it was appropriate to sign the document in its totality, rather than merely focusing on two additional paragraphs that he had been advised to add. The evidence before me does not disclose what portions of Senator Ellison's notice Senator Johnston was told may have been susceptible to being found to be invalid. It is not possible for me to assess whether Senator Johnston looked at any particular paragraphs to address that question. There is no doubt that he had all of the material before him which had been provided by Finland and was aware of the risk that some, but not all, of the earlier s 16 notice might be invalid. 208 The Minister chose to tender selected portions of the material before him, while retaining claims for legal professional privilege on other portions. The portions on which privilege claims were maintained could have made clear the question which the Minister may have addressed having regard to the effect of the decision in Williams 157 FCR 286 in respect of some portion or portions of Senator Ellison's s 16 notice that may have been invalid. However, the Minister has not proved whether he had regard afresh to any particular part or parts of Senator Ellison's notice for the purposes of overcoming any perception of invalidity. Accordingly, the evidence is silent on whether the Minister directed his attention to any possible problem with respect to the paragraphs in the notice he ultimately signed which replicated paragraphs in Senator Ellison's notice for which I have held there was material on which he could have formed the opinions required by s 16(2)(a). 210 Here, Senator Johnston could have given a wholly fresh notice under s 16 in the form of the one he did. The provisions of s 46(2) of the Acts Interpretation Act would apply to sever the portions of it relating to warrant 5 which I have found to be invalid, while leaving the balance of the notice valid and operative. But, if in signing the notice he asked himself the wrong question (as his predecessor had recently done in Williams 157 FCR 286) or confined the formation of his opinion under s 16(2)(a)(ii) to pars (57) and (58), then the whole notice would be bad because of jurisdictional error, namely the failure to form the opinions required in accordance with s 16(2)(a)(ii) in respect of any paragraphs other than pars (57) and (58). Nothing in s 46(2) would save it. 211 The only amendment actually made was the addition of pars (57) and (58) and I have held those to be invalid, as I have held the whole of Senator Ellison's s 16 notice to be. The Minister has put forward in submissions a variety of possible matters to which he may have directed himself, none of which identifies, beyond the intention to add pars (57) and (58), what he was actually doing. 212 Senator Johnston addressed whether pars (57) and (58) should be added to the 'amended notice'. But he came to the incorrect conclusion that they should. I am of opinion that he did not consider the whole of the material afresh in such a way as would justify me in severing portions of the notice to preserve its validity. A considerable part of the notice could not have satisfied Senator Johnston had he correctly considered forming an opinion in accordance with s 16(2)(a)(ii). While s 46(2) of the Acts Interpretation Act enables those portions which I have found to be invalid to be severed from the notice, the material in evidence comfortably satisfies me that the Minister was not addressing himself to the correct question when considering the amended notice. As Dixon J said in Avon Downs 78 CLR at 360: 'It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'


case_text: There is no explanation of how Mr Tervonen, when he was in jail between April and August 2004, aided, abetted, counselled or procured the activities of any of Messrs Siira, Raappana or Söderqvist. In order to establish Mr Tervonen's liability as a secondary offender in Australia, it was necessary for Senator Johnston to have before him identified conduct of Mr Tervonen which showed his intentional participation in each offence, with knowledge of the essential matters which went to make up that offence: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ applying Giorgianni [1985] HCA 29 ; 156 CLR 473. It is here that the material provided by Finland fails to provide a substantive link between the conduct alleged and how Mr Tervonen could be found to have been a secondary offender under the law of New South Wales. This deficiency in the material relied on is accentuated in respect of those offences which occurred while he was in jail between April and August 2004.


case_text: Under the Extradition (Foreign States) Act 1966 (Cth), there was a similar time limit (of 45 days after arrest) imposed for the giving of a notice by the Attorney-General as is now contained in s 17. Beaumont J held that that time limit under the repealed Act did not prohibit the bringing of multiple, subsequent, applications for extradition: Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 162. He suggested that if multiple applications were made a remedy could be sought by the person whose extradition was sought based on the power of the Court to prevent an abuse by the Attorney-General of the exercise of the power. The question presented here is different. There is no suggestion of abuse in Senator Johnston's issuing a new notice. 110 If Senator Ellison's notice could not be withdrawn, then its status at the time Senator Johnston gave his s 16 notice must be determined. If Senator Ellison's notice were wholly or partly valid, Senator Johnston would have power to amend it pursuant to s 10(4). But if Senator Ellison's s 16 notice were wholly invalid, the question arises as to Senator Johnston's power to issue an amended or a fresh notice in circumstances where Mr Tervonen would have been held in custody without the lawful authority of an existing and valid s 16 notice. To that matter I now turn.


case_outcome: affirmed

case_title: SZIYV v Minister for Immigration [2006] FMCA 1621

case_text: This is an appeal from the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellants' protection visas. The appellants are brother and sister. They are Indonesian citizens of Chinese origin and Christians. They claimed a well-founded fear of persecution in Indonesia on the grounds of their race and religion. Details of their claims and the Tribunal's consideration of their claims are set out fully in the decision of the Federal Magistrates' Court: SZIYV v Minister for Immigration and Multicultural Affairs [2006] FMCA 1621. 2 Their grounds of review before the magistrate were as follows: 1. They were denied procedural fairness in connection with the making of the decision. 2. That a breach of the rules of natural justice occurred in connection with the making of the decision. 3. They feared returning to Indonesian because they were ethnic Chinese and Christians.


case_text: In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).


case_title: Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262


case_text: The Tribunal member approached the review of the conference registrar's taxation on the basis that the procedure under s 69A of the AAT Act for a review was a substantively different exercise from all other reviews conducted by the Tribunal under that Act. The Tribunal purported to follow the decision of Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 at 627. That approach involved the Tribunal considering the conference registrar's decision as to which costs to allow on taxation to be discretionary and that the task of the Tribunal was not the usual one to make the correct or preferable decision, but was to approach what the conference registrar had done with a strong presumption in favour of the correctness of the decision from which the appeal was brought. 12 Last the Tribunal found that there was no basis to increase the allowable costs which are based on O 62 r 12(1) of the Federal Court Rules and the second schedule to those rules by adding a disbursement or further amount in respect of the Goods and Services Tax ('GST') which Ms Keen was liable to pay to her solicitor for the provision of legal services the subject of the taxation. 13 Ms Keen argued that there were three questions of law raised on the appeal, namely: (a) whether the second Tribunal erred by failing to conduct a review under s 69A of the AAT Act on the basis of arriving at the correct and preferable decision; (b) that the second Tribunal erred in finding that the first Tribunal's decision in the 2002 matter was made without jurisdiction and awarding nil costs in respect of it; (c) that the second Tribunal erred in finding that Telstra was not liable to pay a sum in respect of GST in the amount of costs payable to Ms Keen under the first Tribunal's order for costs.


case_text: A more fundamental question, however, also rises. Telstra, deliberately, has eschewed taking proceedings under s 39B of the Judiciary Act 1903 (Cth) or under the Administrative Decisions (Judicial Review) Act 1977 seeking to challenge the costs order in respect of the 2002 proceedings. I raised this during the hearing with counsel for Telstra. That may well be because the disputed costs the subject of the certificate of taxation, as affected by the second Tribunal's decision, were somewhere around the amount of the filing fee in this court. Be that as it may, the question is whether the decision of the first Tribunal could be ignored by the second Tribunal. As Jacobson J held in Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862 ; (2005) 147 FCR 570 at 579 [32] - [36] the power of the Tribunal to make a costs order under s 67(8) can only be exercised once.


case_title: In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530


case_outcome: discussed

case_title: Merringtons Pty Ltd v Luxottica Retail of Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006)

case_text: Wood M in Merringtons Pty Ltd v Luxottica Retail Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006) held that the absence of an equivalent rule in Victoria was not significant because a disbursement had to represent an out-of-pocket expense. The Master said that r 837A merely embodied a principle that a party ought not to obtain more on a party/party taxation than they are ultimately required to pay (see [39]). 39 Whatever may be the position in Victoria, the provisions of O 62 r 12(1) are quite clear. In their natural and ordinary meaning, they provide that the only amounts allowable are those fees set out in the second schedule. 40 When a bill of costs for taxation is prepared, the party entitled to costs is required to set out the price of the legal service which is being claimed on taxation. Under A New Tax System (Goods and Services Tax) Act 1999 (Cth) ('the GST Act') a solicitor must render a tax invoice to his or her client. By s 29-70(1) of the GST Act a tax invoice for a taxable supply must be issued by the supplier (here solicitor), set out the ABN of the supplier and set out the price for the supply.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597

case_text: In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, Gaudron and Gummow JJ 616 [53], McHugh J at 618 [63] and Callinan J at 647 [153] held that an administrative decision involving jurisdictional error has no legal foundation and is properly to be regarded in law as no decision at all (see also Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ). Here, the Tribunal had no power to make an order that Telstra pay Ms Keen's costs of the 2002 proceedings.


case_text: I was referred to the explanatory memorandum for the Law and Justice Legislation Amendment Bill (No 3) 1994 which became the Law and Justice Legislation Amendment Act (No 1) 1995 (No 195 of 1995). Item 30 of the second schedule of that Act inserted s 69A into the AAT Act. Item 48 of the second schedule of that Act inserted s 67(14) into the SRC Act and item 47 inserted a reference to a 'district registrar' into s 67(13) of the SRC Act. In the explanatory memorandum, par 113 said: 'New subsection 69A(3) will set out the Tribunal's powers on a review in similar terms to subsection 43(1)'. That confirms what I understood to be the ordinary and natural meaning of the legislation. However in reaching, my construction, I have relied on the words of the Acts as having paramount significance ( Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 ; (2006) 225 ALR 643 at 649 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). 19 The second Tribunal made an error of law in approaching the review under s 69A(3) on the basis that there was a strong presumption in favour of the correctness of the decision from which an appeal was brought and thus did not perform the function which s 69A(3) in fact conferred on the Tribunal for it to perform, namely to review the decision so as to give what it considered to be the correct and preferable decision on the material before it. It follows that this ground of appeal succeeds. 20 Relevantly, the SRC Act defines a proceeding under Part VI (in which there are to be found ss 60-67) as having the meaning in s 4(12). That meaning is specified as being: '(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the [Tribunal] for a review of that decision.' 21 Thus, as noted above, s 64(1)(a), which is found in Part VI, entitles a claimant such as Ms Keen to apply to the Tribunal for review of a reviewable decision. In s 67, which deals with costs before the Tribunal, the general rule is set out in s 67(1). That provides that subject to the section, costs incurred by a party to proceedings instituted under Part VI in respect of that reviewable decision should be borne by the party concerned. 22 Critically, s 67(8) provides that where in any proceedings instituted by the claimant, the Tribunal makes a decision varying a reviewable decision in a manner favourable to the claimant or setting a decision aside and making a decision in substitution for it that is more favourable to the claimant than that the subject of the review, the Tribunal may, subject to the section, order the costs of those proceedings incurred by the claimant or any part of those costs to be borne by the responsible authority (here Telstra). And, s 67(13) provides that where the Tribunal orders the responsible authority to pay costs incurred by a claimant, it may in the absence of agreement between the parties as to the amount of the costs, tax or settle that amount itself or order that they be taxed by a registrar of the Tribunal.


case_title: Plaintiff S157/2001 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476


case_outcome: referred to

case_title: Seyffer v Adamson (2001) 10 BPR 19,349

case_text: In this matter the amount at issue was insubstantial. I was informed that a mediation of this matter had failed. That is regrettable. I do not know what, if any, substantive effect the error which I have found to have been made in the construction of s 69A of the AAT Act will have on a reconsideration of the matter which must now occur. However, litigation of this kind is most unfortunate. It is, of course, the function of the court to hear and determine matters within its jurisdiction, be they large or small. As Bryson J said in Seyffer v Adamson (2001) 10 BPR 19,349 at [1]: 'The Courts of Justice, like the Ritz Hotel, are open to all ...' 50 There must be orders for prerogative relief to enable the review under s 69A to proceed on correct basis. I will fix an amount for the costs of these proceedings after hearing the parties. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 4 July 2006 Counsel for the Applicant: Mr P Jeffriess Solicitor for the Applicant: Stacks/Forster Counsel for the Respondent: Mr B Kelly with written submissions by Mr N Polin Solicitor for the Respondent: Henry Davis York Date of Hearing: 27 June 2006 Date of Final Submissions: 29 June 2006 Date of Judgment: 4 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/834.html


case_title: The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312


case_text: There is no provision in the Federal Court Rules like r 837A of the Supreme Court Rules 2000 (Tas) which was considered by Evans J in Thornton v Apollo Nominees Pty Limited (2005) 59 ATR 244. That rule permits the Supreme Court of Tasmania to allow in a bill of costs for taxation an amount referable to the GST paid or to be paid by the party entitled to the costs order.


case_title: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977


case_text: It is apparent that the scheme of powers of the Tribunal on a review of a decision of a registrar under s 69A is identical with the ordinary functions on a review of a decision of the Tribunal under s 43(1) of the AAT Act. Section 69A of the AAT Act creates no presumptions that, in conducting a review under that section, the Tribunal is to do anything other than the well accepted function of reviewing the decision so as to give what it considers to be the correct and preferable decision: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18. 17 I am of opinion that the language of s 69A is clear and carries with it the intention that the review is to be the ordinary kind of review such as that conducted by the Tribunal under s 43(1) of the AAT Act.


case_text: test for validity of a legislative instrument is "whether there is a 'real connection' between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge": Gummow J in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 163. The applicant contends that the "Relative Price Factor" derived for a fishing permit package for the northern inshore and Area E areas of the Fishery in item 5 in the table in s 32 of the Management Plan was derived by a method that was irrational, unreasonable and capricious, and was against the weight of evidence and submissions to the Authority, with the consequence that item 5 should be declared invalid. For the reasons which follow, the applicants' challenge to s 32 of the Management Plan fails, and the declaration of invalidity they seek will be refused. The Fishery And to the observation of Gummow J in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 , at 166: ... Great caution must be shown in judicial review ... of determinations resting upon factual matters where (i) the determinations in question were made after prolonged public debate and (ii) being legislative in character, the determinations were subject to disallowance by either House of Parliament and (iii) the disputed matters of fact turn upon expert knowledge and opinion, there is dispute between the experts, and there was no cross examination upon that conflict. In Bienke , Gummow J was concerned with a challenge by the owners of prawn trawlers to a management plan for the Northern Prawn Fishery promulgated in 1989. The applicants argued, amongst other things, that a number of determinations by the relevant Minister relating to the plan and changes to it were ultra vires and unreasonable. It was also said that the plan was invalid, on the basis that it deprived the applicants of the ability to fish, which was, in effect, the indirect acquisition of property without providing for just terms as required by the Constitution . A "just terms" compensation claim was pleaded in the present case, but abandoned by the applicants.


case_title: Director of Animal and Plant Quarantine v Australian Port Ltd and Others [2005] FCAFC 206

case_text: Director of Animal and Plant Quarantine v Australian Pork Ltd and Others [2005] FCAFC 206 ; (2005) 146 FCR 368 , the Full Court of the Federal Court was concerned with the review of an administrative decision to grant a Permit to import pig meat, pursuant to the ADJR Act. It was contended that the recommendation of the Import Risk Analysis Report was infected by Wednesbury unreasonableness. The nature of the decision making function in that case was described by Heerey and Lander JJ at 382, [61]: The legislation does not suggest that quarantine decisions are to be made on an assumption that every scientific fact is known about every conceivable disease or pest that might be introduced into Australia, or that such decision are to be delayed until all such facts are discovered and accepted. On the contrary, quarantine decisions have to be made in the existing state of knowledge. Imponderables have to be weighed and value judgements made. No specific criteria are laid down, other than the condition to be established must limit the level of quarantine risk to one which is "acceptably low" which necessarily assumes there will be some risk. At [63], Heerey and Lander JJ said: ... If in some steps, or sub-steps, of the process in relation to PMWS the Panel used estimate, or analogy, or indeed speculation, the Panel might be guilty of unscientific procedures. However APL had to show that the ultimate decision was not just unreasonable, but so unreasonable that no other similarly qualified decision-maker would have made it. That test necessarily allows for some degree of unreasonableness. Even if error in reasoning is disclosed, a conclusion of Wednesbury unreasonableness requires a major step further. (Emphasis added). In the case of a legislative instrument, such as the present, the matter has to go even further than Wednesbury unreasonableness. The observations of their Honours at 371, [4] have a resonance to the present proceedings: ... That process involved fact finding and the making of value judgments and risk assessments in a complex scientific setting. The good faith and scientific competence of those engaged in the task is not in question. While there is room for debate as to some aspects of the IRA Report, the Panel did not carry out its task irrationally or unreasonably. The Court is not empowered to adjudicate on the factual correctness or otherwise of the IRA Report.


case_title: Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381

case_text: CJ referred, at [133] to the observations of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381 at 384: Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact law.


case_text: J noted, at 155, that the common law right or liberty to fish in the sea and in tidal navigable rivers is a public not a proprietary right, and as such, is amendable to abrogation or regulation by legislation, citing Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 160, 168-9. In the context of the present case it is helpful to recall that par 7 of the Northern Fisheries Plan then under challenge set out the objectives and measures for obtaining them. Subparagraphs 7.1 and 7.2 stated: 7.1 For the purposes of subsection 7B(2) of the Act, the objectives of this plan are: (a) to conserve the stocks of prawns in the area of the fishery; (b) to reduce the fishing pressure on the stocks of prawns in the area of the fishery; and (c) to promote the economic efficiency of the fishery. 7.2 The measures for attaining the objectives specified in paragraph 7.1 shall include: (a) the determination of the fishing capacity of the fishery; (b) the determination of the number of units of fishing capacity for the fishery available to a unit holder for allocation and assignment, which shall be renewable and transferable; and (c) the facilitation of the withdrawal of units and boats from the fishery. [Emphasis supplied.] Gummow J, at 161, said that certain determinations by the Minister were said to be invalid "(a), because they were made ultra vires, and (b), because the determinations were unreasonable and irrational in the Wednesbury sense, or "disproportionate". At 163, Gummow J said: ... when the issue concerns not the exercise of discretion by the validity of delegated legislation, the question is ... whether there is a "real connection" between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge.


case_title: Murrumbidgee Groundwater Preservation Association Inc v Minster for Natural Resources [2005] NSWCA 10

case_text: case not dissimilar in principle to the present was Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10. In that case, the Minister had made a Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003, which was a legislative instrument under the Water Management Act 2000 (NSW). The appellant, who was an association of primary producers, unsuccessfully challenged the validity of the Plan in the Land and Environment Court and appealed to the Court of Appeal on a number of grounds, including one based on irrationality. Spigelman CJ (with whom Beazley and Tobias JJA agreed) said, at [111]: The Appellant's case on irrationality has its factual foundation in the limited interconnectivity within the aquifers the subject of the Plan. Although it is accepted that each aquifer is a single geological formation, it is submitted that the absence of interconnectivity is such that it is not rational to treat this formation as a single body of water for the purposes of a plan under the Act. At [121], his Honour summarised the contentions by the appellant: [Under this plan] the transferor will receive a windfall by obtaining consideration for an asset, being the entitlement which they may never have used and which in the future could not use. The transfer of entitlements provides no environmental benefit, it could never have been utilised, but the holder of the licence receives financial consideration (which may be quite substantial) from the transferee who can utilise the licence. Continuing: The effect is that the transferee suffers a financial detriment which is to the benefit of the transferor. In these circumstances, although there may be windfall gains and losses, there is no net benefit for the acquifer or the environment. ... ... the absurdity of the Plan is emphasised by the fact that many of those who will acquire water will have expended considerable sums in developing their properties, in some cases with the active encouragement of the government, only to now pay money for water rights without which part of their capital investment in infrastructure may be lost. ... ... the applicants submit that the consequences of the Plan is to give a windfall to some and inflict financial hardship on others. And at [122]: ... the limited degree of interconnectivity which is accepted by all experts leads to a level of unfairness that indicates irrationality or illogicality. Where there is a challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness, Spigelman CJ said, at [129]: ... Perhaps the most appropriate formulation is whether the decision is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds": Minister for Immigration and Multicultural Affairs Ex Parte Applicant S 20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 at [52] and [37], [173] ....


case_outcome: considered

case_text: J observed in P W Adams v Australian Fisheries Management Authority (1998) 49 ALD 68 , at 76-77: Plainly, there is a difference between "maximising economic efficiency in the exploitation of fisheries resources" and maximising the economic efficiency of individual participants in the fishing industry. The objectives of the AFMA are objectives intended to be pursued in the public interest; they are not intended to require AFMA to pursue, assuming that it would be possible for it to do so, the separate interests of individual participants in the fishing industry. Of course, in many circumstances, the respective interests of individual participants in the fishing industry and the public interests which AFMA is required by its objectives to pursue in the performance of its functions will be consistent. In some circumstances they will not be consistent.


case_text: J in Secretary, Department of Primary Industries and Energy v Collins [1992] FCA 61 ; (1992) 34 FCR 340 was concerned with the Great Australian Bight Trawl Fishery Preliminary Management Plan, determined by the Minutes under s 7B of the Fisheries Act 1958 (Cth). His Honour said, at 345: The starting point is the proposition that the Plan has the force of law. ... Parliament clearly intended that a plan of management .... should create detailed rights and obligations in relation to a fishery ... The provisions of the Acts Interpretation Act concerning tabling before and disallowing by Parliament are to apply. Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself. It is now accepted that the Management Plan is a legislative instrument, and is amenable to challenge only under the Judiciary Act . It was suggested that item 5 of the s 32 table of the Management Plan was not "reasonably appropriate and adapted to obtain the objectives" of maximising economic efficiency set out in s 3 of the FM Act.


case_text: the words of Gummow J, the question of validity in the present case is whether the determination of the Management Plan goes beyond what could reasonably be adopted for the purpose of allocating statutory fishing rights in the Fishery and promoting the economic efficiency of the Fishery, it not being enough that the Court itself might think that the Plan as amended inexpedient or misguided: see South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161 at 168.


case_text: CJ said, at [130]: With respect to a power to make a plan of the character under consideration in the present case, I find particularly helpful the formulation of Sir Owen Dixon in Williams v Melbourne Corporation [1933] HCA 56 ; (1933) 49 CLR 142 at 155: To determine whether the bylaw is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the bylaw appears on its face to relate to that subject. The true nature and purpose of the power must be determined and it must often be necessary to examine the operation of the bylaw in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the bylaw, the true character of the bylaw may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the bylaw will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. Spigelman CJ adopted the words of Dixon J, as he then was, in Williams v Melbourne Corporation , which involved a power to regulate traffic. Dixon J said, at 156: ... The ultimate question in the present case appears to me to be whether, when applied to the conditions of Melbourne, the bylaw involves such an actual suppression of the use of the streets for the purposes of the necessary transit of an important and ordinary commodity as to go beyond any restraint which could be reasonably adopted for the purpose of preserving the safety, convenience and proper facility of traffic in general. Spigelman CJ made the important observation, at [139]: It is always necessary to commence with the identification of the particular statutory power, understood in its context, and to assess the exercise of that power against the high standard of unreasonableness or of irrationality which the outcome must reach before the Court can legitimately infer that the legal limits to the exercise of the power have not been observed so that, to adopt the formulation from Williams v Melbourne Corporation quoted above, the Plan "could not reasonably have been adopted as a means of attaining the ends of the power" and, therefore, "is not a real exercise of the power". Spigelman CJ said, at [144]: Inevitably, when significant changes are made to an established regulatory regimes, there will be winners and losers. Considerations of equity are quintessentially matters for political decision-making. I am not satisfied that anything in the nature, scope and purpose of the Act prevents the Minister from implementing a scheme which operates to the detriment of some persons and to the advantage of others, in a manner not determined by availability of water but by broader considerations of what the Minister regards as equitable. And, at [152]: ... What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.


case_text: This appeal is from a judgment of the Federal Magistrates Court in SZFSV v Minister for Immigration & Anor [2007] FMCA 1362. The learned Federal Magistrate dismissed the appellant's application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent, made on 24 July 2006 and posted to the appellant on 1 August 2006. 2 One of the grounds of the application in the proceeding before the Federal Magistrate was that the Tribunal had failed to consider the application before it in accordance with s 425 of the Migration Act 1958 (Cth) ("the Migration Act ") because it had not provided a hearing for its second consideration of the application for review. The situation was that the Tribunal, constituted by one member, had provided the appellant with a hearing on 25 January 2005. The member who constituted the Tribunal on that occasion made a decision affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, now the Minister for Immigration and Citizenship (in both cases, "the Minister"), the first respondent, to refuse to grant to the appellant a protection visa. The appellant applied to the Federal Magistrates Court for orders in respect of that decision. She was unsuccessful and appealed to this Court. At that stage, the appellant and the Minister consented to an order, which was made by Besanko J on 9 May 2006, allowing the appeal, setting aside the orders of the Federal Magistrates Court made on 19 January 2006, and ordering that the original decision of the Tribunal be quashed by a writ of certiorari and that a writ of mandamus be issued, directing the Tribunal to "reconsider and determine the matter according to law". The Tribunal then allocated the appellant's application for review of the decision of the Minister's delegate to another member of the Tribunal. On 24 July 2006, without conducting any further hearing, that member made a decision again affirming the decision not to grant the appellant a protection visa. 3 The appellant again applied to the Federal Magistrates Court, which dismissed her application on 14 August 2007. Her notice of appeal to this Court from that judgment also raises the question whether the appellant's application to the Tribunal was dealt with in accordance with s 425 of the Migration Act . 4 It seems to me that this appeal raises an important question of principle, namely whether s 425 requires the member newly constituting the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review, when an application has been remitted to the Tribunal to be re-determined according to law, consequent upon a decision of the Tribunal having been set aside by the Court. Written submissions have been filed by counsel for the Minister on this appeal. They indicate that there appears to be a conflict of authority as between judgments of single judges of this Court, but there is no clear judgment of the Full Court providing guidance on the application of the relevant principles to such a case. 5 Section 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) provides a power for a judge in effect to refer to a Full Court an appeal to this Court from a judgment of the Federal Magistrates Court in a judgment given under the Migration Act . The criterion laid down in that provision is that a judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to an appeal to be exercised by a Full Court. In the present case, I consider it to be appropriate for the appellate jurisdiction of the Court in relation to this appeal to be exercised by a Full Court, because of the importance of the issue of principle, the apparent conflict between judgments of single judges of this Court, and the lack of clear guidance from either the Full Court of this Court or the High Court. 6 Before reaching this conclusion, I invited the appellant to indicate whether she would be badly affected by a delay in the hearing of her appeal. She did not indicate that any bad effect would flow from any delay. It is likely that the appeal will be able to be heard in the course of the Full Court sittings in February 2008. 7 I therefore propose to make an order that the appellate jurisdiction of the Court in relation to this appeal be exercised by a Full Court. I indicate, that because of the importance of the matter and the difficulty of the argument, I propose to grant a certificate pursuant to the scheme in O 80 of the Federal Court Rules to refer the appellant to counsel, who will be able to argue the matter properly on her behalf without any cost to her. 8 There remains the question of what should happen to the costs of today. In the circumstances of this case, I think that I should make no order as to the costs necessitated by the adjournment of the proceeding. It is normal that these cases are reviewed at an early stage, to see if the appeals ought to be heard by a Full Court or by a single judge. It may be that the importance of the point was not seen clearly when that review was undertaken. Very likely its importance has been underlined by the fact that counsel for the Minister has very properly filed written submissions which lay out the situation as far as the authorities are concerned. In those circumstances it seems to me somewhat unfair to put the appellant at risk of additional costs because the suggestion that the appeal ought to be heard by a Full Court has come from the Court. For those reasons the appropriate order is that there be no order as to costs. 9 The orders I make are as follows: 1. The hearing of the appeal be adjourned to a date to be fixed in the Full Court sittings of the Court in February 2008. 2. The appellate jurisdiction of the Court in relation to the appeal be exercised by a Full Court. 3. There be no order as to the costs of the adjournment. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 27 November 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: S Lloyd Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 November 2007 Date of Judgment: 20 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1860.html


case_text: The issue for determination is whether, as the Company has only acted as a corporate trustee, the liquidator is entitled to have his remuneration costs, charges and expenses paid out of Trust assets. In 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (In Liq) (1999) 30 ACSR 337. Finkelstein J considered a number of authorities in which this issue had arisen and said at 385: "These cases establish, clearly enough in my opinion, that provided a liquidator is acting reasonably he is entitled to be indemnified out of trust assets for his costs and expenses in carrying out the following activities: identifying or attempting to identify trust assets; recovering or attempting to recover trusts assets; realising or attempting to realise trust assets; protecting or attempting to protect trust assets; distributing trust assets to the persons beneficially entitled to them. The position is a little more involved as regards work done and expenses incurred in what may be described as general liquidation matters. If that work is unrelated to the beneficiaries and their claims it is difficult to see how the cost could be charged against their assets. In the case of a company that has carried on the business of trustee it might be that much of the work involved in the liquidation is chargeable against trust assets if it can be shown that the liquidation is necessary for the proper administration of the trust. But it is unlikely that this will be so where the company did not act solely as trustee or at least did not act in that capacity to a significant extent. In that event, the liquidator will be required to estimate those of his costs that are attributable to the administration of trust property and only those costs will be charged against the trust assets." 33 In the present case, the Company has acted solely as a trustee, so no issue of apportionment of costs and expenses and remuneration arises. 34 The present case is further complicated by the fact that although the liquidator may have preserved the Trust assets, at relevant times, to the knowledge of the liquidator, the Company was not the trustee of the Trust, the assets of which the liquidator was protecting. Nevertheless, I consider that the principles applied by Finkelstein J in 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (In Liq) (supra) apply in circumstances where there has been confusion or difficulties in relation to the activities of the true trustee of the Trust and where the liquidator has filled a lacuna and acted in the absence of the ability of the true trustee to do so for the purposes of securing and preserving trust assets. The liquidator was inevitably drawn into the proceeding commenced by the Commission as the Company was an initial defendant in that proceeding. 35 At the time the Scheme was being wound up, although the Company was not then the trustee of the Trust, it was inevitably involved in the winding up of the Scheme process because it had been one of the participating parties when the Scheme was established in June 1999. It was the contracting party entitled on a winding up of the Scheme to receive the distribution of the return of investment funds. In short, the participation of the Company in the winding up process of the Scheme was an essential part of that winding up. The liquidator was a necessary party involved in the winding up of the Scheme. Further, so far as the management fees were concerned, the Company, and therefore the liquidator, was the contracting party entitled to recover it. The compromise of that claim could not have occurred without the participation of the liquidator. 36 In these circumstances it is proper and appropriate that the liquidator's remuneration and his costs, charges and expenses incurred in the winding up of the Company be paid out of the assets of the Company and the assets of the Company which are held in trust for the Trust including the funds held by him in the Macquarie account.


case_text: The procedure by which the liquidator establishes his claim and entitlement to be paid remuneration is found in s 473(3) of the Act which provides: "A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined: (a) if there is a committee of inspection by agreement between the liquidator and the committee of inspection; or (b) if there is no committee of inspection of the liquidator and the committee of inspection fail to agree: (i) by resolution of the creditors; or (ii) if no such resolution is passed by the Court." As the meeting convened to consider a resolution to approve of remuneration for the liquidator did not pass that resolution, the Court now has power pursuant to s 473(3) of the Act to determine the amount of the remuneration which can be paid to the liquidator out of the Company's assets: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501; Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328; Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424 at 444.


case_title: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501


case_title: Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328


case_text: Before the Magistrate, the appellant contended that she had in fact changed her mind after completing the form on 28 January 2005 and that she had decided that she did wish to appear at a hearing. She said that she had contacted the Tribunal on 4 February 2005 and advised a male person of that fact. She asserted that the Tribunal erred in proceeding without affording her a hearing and that that error was a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293. 9 Under s 425(1) of the Migration Act , the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425(2) provides that subsection (1) does not apply if, inter alia, the applicant consents to the Tribunal deciding the review without the applicant appearing before it. 10 Before the Magistrate, the assertion that the appellant contacted the Tribunal on or about 4 February 2005 was in dispute. He decided that the appellant did not contact the Tribunal on or about that date and that by reason of her response of 28 January 2005 the Tribunal was entitled to proceed without hearing from the appellant in terms of s 425(1) of the Migration Act . In view of his finding of fact, the Magistrate did not need to consider whether, had he accepted the appellant's version of events, the Tribunal had committed an error going to jurisdiction. The only remaining question for the Magistrate was whether the Tribunal had otherwise committed a jurisdictional error and he had decided that it had not.


case_text: Plainly the Magistrate was saying that the appellant's natural justice claim had to be measured against the provisions of Div 4 of Pt 7 of the Migration Act 1958 , and so measured did not fall within the scope of the modified natural justice requirements contained therein, as is indeed the case. The complaint that his Honour failed to explain how those provisions answered the appellant's natural justice claim is baseless. The appellant was making a common law claim that was not replicated in the modified regime. See Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64] - [70] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [5] - [8] .


case_title: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62