case_text: The question of the absorption of a child into the Australian community was considered by the Full Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236. At [49] the Full Court noted with apparent approval the following passage from the reasons for judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at [45] - [46] : In relation to the question of absorption into the community French J said in Johnson at [45]-[46]: '45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): ... there does not appear to be any general agreement as to the tests for the application of this very vague conception. The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. 46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288.' 32 In Moore at [53]-[54] the Full Court stated: The absorption of children into the Australian community will be very much influenced by the absorption or otherwise of their parents. If (say) a boy entered Australia with his parents and his siblings, as an immigrant, when only one month old, different considerations would apply to deciding the question of his absorption than those which would apply if (say) a boy entered Australia as an immigrant with his parents and siblings when he was already 17 years of age. ... Absorption, to be complete, will invariably require the passage of a considerable period of time. 33 It may be assumed that the contrast that the Full Court drew in Moore between a one month old boy and a boy of 17 years of age was between (a) an infant entirely dependent on his parents and incapable of forming an intention of his own to make a home in Australia, and (b) an adolescent approaching adulthood who might well have adopted the Australian way of life for himself and formed an intention to remain part of the Australian community. 34 As mentioned above, as at Independence Day Mr Charlie was less than two years old. During the proceeding six months he would have been entirely dependent on other family members, and in particular his parents. He would have been, by reason of immaturity, incapable of forming an intention of his own of making a home on Darnley Island as opposed to in Papua. I conclude that the question of whether he had been absorbed into the Darnley Island community prior to Independence Day is to be determined by reference to whether his parents had by that time been absorbed into that community. 35 Nothing in the authorities seems to me to provide any support for a contention that Mr Charlie's parents could have become absorbed into the Darnley Island community in the short period of time between April and September 1975. It is to be remembered that a consequence of absorption into the Darnley Island community would probably have been loss of membership of the family's former Papuan community. 36 As noted above, the Full Court in Moore referred to a "considerable period of time" being invariably required for absorption. Their Honours' view finds support in Ex parte Walsh and Johnson where Knox CJ spoke of a person growing out of the condition of being an immigrant "in course of time and by force of circumstances" (see [27] above). It seems to me that the period of approximately five months between the arrival of the infant Mr Charlie on Darnley Island and Independence Day was not a "considerable period of time" within the meaning of that expression as used in Moore. Their Honours, in my view, plainly envisaged a period of some years as being required for absorption. The period of approximately five months was, I conclude, plainly insufficient for Mr Charlie, together with his family unit, to have become part of the Australian community by absorption. This is so, in my view, notwithstanding that his parents: (a) intended, as I find, in April 1975 to settle permanently on Darnley Island; (b) did not, as I infer, absent themselves from Darnley Island frequently or for long periods of time; (c) had close family connections with Darnley Island and were connected to the island by Mr Charlie Snr's employment; (d) occupied a home of their own on Darnley Island; and (e) participated, as I infer, in Darnley Island community activities.


case_outcome: considered

case_text: The notion of membership of a community with a concomitant right to live in that community was discussed by members of the High Court in Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277. That case concerned the right of the illegitimate son of a Victorian woman to return to Australia from China. His original home was in Victoria but he had been taken at the age of 5 years to China by his father. Although he remained in China for 26 years he was found by a majority of the High Court never to have abandoned his original home. 23 In Minahan Griffith CJ at 289 observed: ... anterior, both in order of thought and in order of time, to the concepts of nationality and of domicil is another, upon which both are founded, and which is, I think, an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority. It follows also that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit. ... At birth he is, in general, entitled to remain in the place where he is born. ... If his parents are then domiciled in some other place, he perhaps acquires a right to go to and remain in that place. But, until the right to remain in or return to his place of birth is lost, it must continue, and he is entitled to regard himself as a member of the community which occupies that place. These principles are self-evident, and do not need the support of authority. 24 O'Connor J at 306 said: What is the scope and purpose of the Act? [ie the Immigration Restriction Act 1901 (Cth)] To prevent the entry into Australia of persons from other countries whom the Legislature has determined ought not for various reasons to be permitted to become members of the Australian community. ... That being so, the foundation in law of the respondent's case is the unimpeachable proposition that a person cannot be an immigrant into the country which is his home. Whether at the time of his landing Australia was the respondent's home, is a question of fact .... 25 Isaacs J adopted a similar approach at 308 where his Honour observed: ... immigration connotes two facts -- the first, that there is an entry into Commonwealth territory; and the second, that the person entering is not in fact at the moment he enters one of the people of the Commonwealth. The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. 31 The question of the absorption of a child into the Australian community was considered by the Full Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236. At [49] the Full Court noted with apparent approval the following passage from the reasons for judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at [45] - [46] : In relation to the question of absorption into the community French J said in Johnson at [45]-[46]: '45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): ... there does not appear to be any general agreement as to the tests for the application of this very vague conception. The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. 46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288.'


case_outcome: applied

case_text: Nonetheless, under the Migration Act a person born in Papua after the commencement of the Citizenship Act required an entry permit to be entitled to enter or reside in any of the States or internal territories ( Re Minister for Immigration and Multicultural Affairs; Ex parte Ame [2005] HCA 36 ; (2005) 222 CLR 439 at [1] ). This was because Papua, as an external Territory, was not part of "Australia" for the purposes of the Migration Act ( Minister for Immigration and Multicultural Affairs v Walsh [2002] FCAFC 205 ; (2002) 125 FCR 31 at [15] - [21] cited with approval in Ex parte Ame at [1]). 45 More significantly, in Ex parte Ame , in the majority judgment at [21], the High Court said of the proposition that the applicant in that case was a person who had a right of permanent residence in Australia within the meaning of s 65(4)(a) of the PNG Constitution : This is not an abstract or theoretical question. It concerns the meaning of words in an instrument of nationhood and government, dealing with a practical issue affecting the membership of the new Independent State. When the framers of the Papua New Guinea Constitution referred to persons who had a right to permanent residence in Australia, part of the contextual background in which that reference was made was an Australian immigration law which, according to its terms, and as it was administered, denied people such as the applicant a right to permanent residence in Australia in the absence of a specific grant. That background explains the terms of s 64(4). 46 At [22]-[23] in Ex part Ame their Honours stated: At the time [ie in 1975], s 6(1) of the Migration Act provided that an immigrant who entered Australia without an entry permit was a prohibited immigrant. ... A right of permanent residence (in practice, a right to re-enter Australia free of the constraints of s 6) could be acquired by a person who was granted a permanent entry permit (s 15). ... The [Migration] Act applied, and was administered on the basis that it applied, to persons entering mainland Australia from external Territories. ... ...The right to permanent residence referred to in s 65(4)(a) is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia. ... 47 Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) was plainly intended to allow the PNG Constitution to govern who became a citizen of Papua New Guinea on Independence Day. It provided, consistently with the PNG Constitution 's rejection in principle of dual citizenship, that a person who immediately before Independence Day was an Australian citizen and who became a citizen of Papua New Guinea on that day ceased on that day to be an Australian citizen. Subject to the retrospective, but for practical purposes, temporary, operation of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations (Cth), the effect of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) was to deprive Mr Charlie of his Australian citizenship (see [15] above). 48 The contention that, as at Independence Day, Mr Charlie was a person who had a right of permanent residence in Australia within the meaning of s 65(4)(a) because he had the permission of the Darnley Island Council to reside on Darnley Island fails. 49 The above conclusion renders it unnecessary to determine whether Mr Charlie and his family were, for a period of time after his arrival on Darnley Island in 1975, prohibited immigrants within the meaning of the Migration Act as then in force. Even if it can be assumed that they were prohibited immigrants, and therefore technically subject to removal, it is clear that the Commonwealth did not at that time seek to implement the relevant provisions of the Migration Act in respect of persons residing on Darnley Island.


case_outcome: cited

case_text: In The King v Macfarlane; ex parte O'Flanagan and ex parte O'Reily [1923] HCA 39 ; (1923) 32 CLR 518 at 580 Starke J expressed a similar view observing: ... the Constitution unites into a Federal Commonwealth the people of Australia. The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth; it would in truth be the return of an Australian to his homeland. ... Whether any given person is one of the people of Australia is necessarily a question of fact.


case_text: Whether the view expressed by Knox CJ in Ex parte Walsh and Johnson remained the position in 1975 in respect of a person who had entered Australia after the Migration Act came into operation seems to me to be open to doubt. In The Queen v Forbes; ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168 at 172-173 Barwick CJ, with whom all other members of the High Court agreed, stated: It was said in O'Keefe v Calwell that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s 51(xxvii). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of "immigrant" s 5(1) ss 5(2), 6(2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. (citation omitted) 30 However, as no reliance was placed in argument on The Queen v Forbes or on Mr Charlie's status under the Migration Act at the time of his arrival on Darnley Island , I will not consider this issue further.


case_text: extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ".


case_title: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 , 85 ALD 532

case_text: the exercise of this discretion, some Judges have embraced the proposition that "... in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker ": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5] , [2005] FCA 195 ; 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will " ordinarily " be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding. Relevant to the ultimate conclusion reached by the Federal Magistrate was the conclusion that the Refugee Review Tribunal had committed a jurisdictional error. Even if the discretion were to be exercised afresh by this Court, that conclusion would remain equally relevant. It is proper when exercising the discretion to have regard to the merits of the substantive application sought to be advanced: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [14] , [2005] FCA 195 ; 85 ALD 532 at 538 per Finkelstein J.


case_text: an extension of time within which to appeal to this Court were granted, the appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) would be by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 , 117 FCR 424. And, on appeal, the Court would have a discretion to admit further evidence pursuant to s 27 of the 1976 Act. It is, however, unlikely that the discretion conferred by s 27 would be exercised in favour of the now Applicant to so fundamentally revisit the evidence previously given. The fact remains that there was inordinate delay as between the date of the Tribunal decision in 2001 and the application for review by the Federal Magistrates Court in 2007. Either for the reasons given by the Federal Magistrate, or by reference to the account now advanced, any decision that the application should be rejected for discretionary reasons remains, it is considered, the correct decision.


case_text: the reservation, it must be accepted, is of importance. The Federal Magistrate acted upon a concession made by the Applicant that he had received a copy of the Tribunal's decision " two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001) ". But " the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001 ". The difficulty of conceding receipt of a letter before it was sent is apparent. A fundamental mistake as to the facts may bring an applicant within House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. But the reservation, it is considered, should not prevail. The Federal Magistrate had the benefit of the Applicant giving oral evidence and his conclusions were conclusions based upon the entirety of the evidence, including his assessment as to the Applicant's credibility. It may also be queried whether the finding of the Federal Magistrate as to when the Applicant became aware of the Tribunal's decision does indeed expose error. The words employed by the Magistrate suggest error — but the contradictory findings are made within the one paragraph of his reasons. It is most likely that the error simply exposes an error in transcription rather than such a fundamental misunderstanding as to the facts as now sought to be attributed to him by the Applicant.


case_title: Kordatos v Sweeney [2004] FCA 1487


case_text: the exercise of this discretion, some Judges have embraced the proposition that "... in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker ": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5] , [2005] FCA 195 ; 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will " ordinarily " be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding.


case_text: relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] . Notwithstanding the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .


case_text: for the Applicant's delay in invoking his rights, he would in all likelihood have obtained relief: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185. Gibbs CJ there observed (at 194) in respect to relief in the nature of prohibition: If therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. This has been accepted by Gaudron and Gummow JJ as " the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution ": Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [51] , 204 CLR 82 at 106.


case_title: R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356


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

case_text: respect to the exercise of discretion, the reasons for decision of the Federal Magistrate were in part as follows: Delay [19] The first respondent submits that, regardless of whether jurisdictional error is demonstrated, the relief sought by the applicant should be denied in the exercise of the Court's discretion because he took unduly long to commence these proceedings. In this regard, it should be noted that the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001 and these proceedings were not commenced until 22 June 2007. In his evidence to the Court the applicant conceded that he had received the Tribunal's decision two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001). The applicant also agreed that he had received the decision and its covering letter from the Tribunal. He said that he did read the covering letter but not fully, did not fully understand it and was upset and puzzled. He said that he did not discuss the letter with his agent even though the agent had rung him to say that he too had received a copy of the letter advising of the Tribunal's decision. The applicant said that he did not ask his agent what to do next in relation to his visa status. ... [24] It is clear that the Court does have a discretion to deny relief in circumstances where the conduct of the applicant is inconsistent with the application for relief, including where the applicant has been guilty of unwarrantable delay: SAAP v Minister for Immigration Multicultural & Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 per McHugh J at 1026 [80]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 197 [28] . This is not a case where the applicant's delay in bringing proceedings is measured in months. It is a delay which is measured in years. The explanation advanced by the applicant for his delay in bringing the proceedings is not credible and I reject it. In his evidence the applicant said that it was through hard work and trying to find information and encouragement from a friend that he became aware of his right to appeal. No explanation was advanced as to why this process matured into an application to this Court only in 2007. Moreover, such evidence is not consistent with the applicant's knowledge that he was denied his hearing before the Tribunal. He knew that he had been invited to appear but had, in fact, been denied the opportunity of so doing. [25] Knowing that he had been denied his hearing and that his application to the Tribunal had been unsuccessful, the applicant should have made enquiries at an early date with a view to enforcing his rights and vindicating his claim to be a refugee. The fact that he did not do so requires an explanation more compelling than that he did not know that he had a right of appeal. [26] But in any event, I have found that he was aware as early as 2001 that if he wished the Tribunal's decision to be set aside he would need to seek judicial review in the Federal Court. He has put nothing before the Court to explain why he did not act on this knowledge. [27] The applicant having given no adequate explanation for the very considerable delay in bringing these proceedings, relief will be denied in the exercise of the Court's discretion. In support of the present Application for an extension of time, two Affidavits were filed. The first was sworn on 12 December 2008 and the second was sworn on 29 January 2009. The Affidavit upon which reliance was ultimately placed at the hearing was one sworn by the Applicant on 4 February 2009. The Respondent relied upon an Affidavit of the instructing solicitor sworn on 6 February 2009. Objection was taken to both Affidavits — but both were admitted subject to the objections taken as to relevance. At the outset of the hearing on 6 February 2009, the deficiency in the factual account as set forth in the February Affidavit was explored with Counsel for the Applicant — that deficiency being that it really set forth no explanation for the entirety of the delay as between January and December 2008. The opportunity was extended to the Applicant to adjourn the proceeding and to file further affidavit evidence and evidence in admissible form. The course ultimately embraced by Counsel for the Applicant, however, was to lead on that date further oral evidence from the Applicant. The Applicant was cross-examined. But for the Applicant's delay in invoking his rights, he would in all likelihood have obtained relief: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185. Gibbs CJ there observed (at 194) in respect to relief in the nature of prohibition: If therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. This has been accepted by Gaudron and Gummow JJ as " the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution ": Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [51] , 204 CLR 82 at 106.


case_outcome: followed

case_text: the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .


case_text: relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] .


case_text: extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ". Of relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] .


case_title: SZKSM v Minister for Immigration and Citizenship [2008] FCA 632


case_title: SZKTN v Minister for Immigration and Citizenship [2008] FCA 633


case_text: Application presently before the Court is an application for an extension of time within which to appeal from a decision of the Federal Magistrates Court delivered on 21 December 2007: SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073. The Applicant appeared before this Court on the hearing of the Application represented by Counsel. The facts centrally relevant to the Application are within a limited compass.


case_title: Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511


case_title: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399


case_text: Whether Lilyvale carried on the same business from 1 January 2002 to 31 March 2003 as it did immediately before either 8 or 30 August 2002 requires careful consideration of Lilyvale's activities and responsibilities both before and after the critical date in August 2002. The question is one of fact; Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 97 per Gibbs J at 104. There are two elements to the concept of a taxpayer "carrying on the same business" and both must be addressed. First, it is necessary to have a clear understanding of the concept of carrying on a business, taking into account the relevant statutory and commercial context. Then, having established that before the critical date the taxpayer is carrying on a business and the nature or characterisation of that business, it is necessary to ask if the taxpayer carried on the same business after the critical date. 60 In Avondale Gibbs J rejected a submission that the word "same" in the phrase "same business" meant "similar" or "analogous" rather than "identical". His Honour accepted that the meaning, as with any ambiguous phrase, depends on context and held that in the context of s 80E(1) of the Income Tax Assessment Act 1936-1968 (Cth), a predecessor of the provision presently under consideration, the meaning was that of "identity". Gibbs J, at 105, found support for his view in a consideration of the purpose of the legislation: This restriction is imposed to prevent persons from profiting by the acquisition of control of a company for the sole purpose of claiming its accrued losses as a tax deduction. However the restriction if imposed absolutely would lead to injustice in cases where a company, notwithstanding substantial changes in the ownership of its shares, continued to carry on the same business. No injustice would, in my opinion, result from a refusal to treat an accrued loss as a tax deduction where the company after the change carried on a different business, although one of a similar kind. Lilyvale therefore needs to show that the business it carried on after the share sale was identical to the business that it carried on in the relevant period before the share sale. 61 There was no issue as to the fact that Lilyvale was carrying on a business before the share sale. The parties do differ, however, as to their characterisation of that business. In submissions, Mr Slater QC, who appeared for Lilyvale, characterised its business, both before and after the sale, as carrying on "the business of hotelier or innkeeper at the premises in the Rocks". He submitted that in carrying on its business Lilyvale "provided accommodation for guests, provided restaurant facilities and meals for guests, and food and beverages in bars and so forth, convention facilities, parking facilities, laundry facilities and all the other things that a hotel provides to its customers or guests ... with three exceptions, it employed all the staff engaged in that enterprise". In contrast, the Commissioner submitted that Lilyvale's business consisted of the following: • the provision of the physical asset ie., the Hotel; • the maintenance of an operating bank account in the name of Lilyvale Hotel Pty Ltd in which [Enterprises Australia] deposited receipts and from which [Enterprises Australia] made payments of operating expenses, and from which Lilyvale transferred excess amounts from time to time; • the procurement of [Enterprises Australia], pursuant to the Management Agreement, to operate and manage the hotel but with a veto on capital expenditure; • the procurement of [ANA Enterprises] (later ANA Hotels), pursuant to the Licence Agreement, to allow [Enterprises Australia] to operate and manage the hotel using the trademarks associated with ANA and the ANA Hotels Systems Services.


case_outcome: discussed

case_text: Whether a person is carrying on a business and the nature of that business involves a consideration of the activities in which that person is involved. In Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 , the High Court considered questions of law which raised the issue of whether the activities of the appellant amounted to "carrying on the business of grazing". The New South Wales Court of Appeal had decided, "as a matter of fact", that the appellant's use of his land, "albeit for commercial purposes and for the purpose of profit, was not significant enough to bring it within the scope of the common or general meaning of either of the words 'business' or 'industry'." Mason J, with whom Gibbs and Stephen JJ agreed, held at 8-9, that the expression, carrying on the business of grazing, denotes "grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis". A similar approach was adopted in Federal Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 , where Gaudron, McHugh, Gummow and Hayne JJ said at 626: A business is not a thing or things. It is a course of conduct carried on for the purpose of profit and involves notions of continuity and repetition of actions. 71 The evidence shows that before the critical date Lilyvale and Enterprises Australia engaged in very different activities. It is true that Lilyvale's income (on which it was liable to income tax) was sourced from the hotel, however it was the activity of Enterprises Australia that generated that income. Lilyvale's involvement in the business of the hotel was so distant from the day to day activities of the hotel that, in my view, the course of conduct carried on in the hotel, bearing in mind the notions of continuity and repetition referred to in Federal Commissioner of Taxation v Murry (see [62] above), could not be said to be the conduct of Lilyvale. 72 As mentioned above, in the pre-sale period the Management Agreement between Lilyvale and Enterprises Australia provided that Enterprises Australia would operate and manage the hotel for a period of 20 years and would also be responsible for sales and marketing. After the sale Enterprises Australia was no longer involved with the hotel, and yet the operation of the hotel continued seamlessly. It must be assumed that Lilyvale had stepped into the shoes of Enterprises Australia. To the extent that the tasks that Enterprises Australia performed before the sale, continued to be carried out after the sale, the evidence indicates that they were carried out by Lilyvale. 73 In my view the business carried on by Lilyvale in the relevant period before the share sale was not the same as the business that it carried on in the relevant period after the sale. It follows that the present application must be dismissed and the objection decision of the respondent must be affirmed. The applicant must pay the respondent's costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 10 July 2008 Counsel for the Applicant: A H Slater QC with P M Fraser Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: N J Williams SC with A J O'Brien Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26, 27 November 2007 Date of Judgment: 10 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1031.html


case_text: Whether a person is carrying on a business and the nature of that business involves a consideration of the activities in which that person is involved. In Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 , the High Court considered questions of law which raised the issue of whether the activities of the appellant amounted to "carrying on the business of grazing". The New South Wales Court of Appeal had decided, "as a matter of fact", that the appellant's use of his land, "albeit for commercial purposes and for the purpose of profit, was not significant enough to bring it within the scope of the common or general meaning of either of the words 'business' or 'industry'." Mason J, with whom Gibbs and Stephen JJ agreed, held at 8-9, that the expression, carrying on the business of grazing, denotes "grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis". A similar approach was adopted in Federal Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 , where Gaudron, McHugh, Gummow and Hayne JJ said at 626: A business is not a thing or things. It is a course of conduct carried on for the purpose of profit and involves notions of continuity and repetition of actions.


case_text: This submission hinges on the legal characterisation of the relationship between Lilyvale and Enterprises Australia. It is an invitation, under the banner of 'agency', to attribute the activities of Enterprises Australia to Lilyvale to deem them to be Lilyvale's activities. The characterisation of the relationship in the Management Agreement as one of agency does not, however, lead inevitably to this conclusion. In International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652 the High Court observed: Agency is a word used in the law to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties. But in the business world its significance is by no means thus restricted. [emphasis added]


case_text: The fact that Enterprises Australia carried out its obligations under the Management Agreement on Lilyvale's account does not mean that the 'agency' was such that its activities must be attributed to Lilyvale, nor that its business was Lilyvale's business. The question of what business Lilyvale carried on before the sale is a question of fact, the answer to which depends on the characterisation of the activities in which Lilyvale was actually engaged (i.e. what Sheppard J in J Hammond Investments Pty Ltd v Federal Commissioner of Taxation (1977) 31 FLR 349 at 357 referred to as "the real nature of the taxpayer's business"), not on its legal relationship to Enterprises Australia and its activities. 69 I am satisfied from the evidence before me that Mr Tang's "seamless transition" was achieved; I accept that a guest in the hotel or indeed the hotel's employees, would not have discerned any material difference between the way the hotel was operated and managed before and after August 2002 until about the time when the name of the hotel was changed to the Shangri-La Hotel. The written submissions for Lilyvale summarised the applicant's evidence comparing the operation of the hotel after the sale. I accept this evidence and adopt the summary which is as follows: (a) the hotel business was conducted by the Applicant under the same name; (b) the same get-up and style, trademarks and presentation were used; (c) the management team (including in particular the general manager) continued unchanged; (d) the staff engaged in the conduct of the business continued unchanged except for normal turnover, which was lower in the Applicant's case than was normal in the industry; (e) the contracts for the provision of services by external contractors continued unchanged; (f) the services and facilities provided by the Applicant in the conduct of the hotel business were unchanged; (g) the hotel was marketed in the same way, to the same markets and using the same agents and representatives; (h) the signature restaurant (Unkai) and other restaurants continued to operate in the same way; (i) the Applicant continued to derive the (assessable) income from the provision of the same hotel services and facilities; (j) the same manuals and procedures continued to be used under licence from the same (ANA) group; (k) the same computer management and reservation systems continued to be used, obtained from the same independent suppliers; (l) the same reports continued to be supplied to the ultimate shareholders in the Applicant (albeit that the identity of the shareholders changed); (m) the owner's representative (whose identity changed from time to time) continued to perform the same role; (n) a "guest relationship manager" was retained to present a "Japanese face" to the hotel guests; (o) the management of the hotel was to the same extent (and with no greater degree of supervision) entrusted to the general manager and the executive committee; it "remained the same throughout the entire period." (p) in the period from the test time in August 2002 to April 2003, the Applicant undertook and achieved a "seamless transition," whereby it carried on its business in the same fashion as it had done before August 2002, such that no change resulting from the change in ownership was perceptible to its customers. 70 The same business test requires however, not merely that the same business be carried on, but that it be carried on by the taxpayer, in this case Lilyvale. I accept that after the share sale Lilyvale carried on the business of managing the hotel. The critical question remaining is whether the business that Lilyvale carried on before the share sale is properly characterised as the business of managing the hotel in the same way that the business it carried on after the share sale can be characterised.


case_text: In the Management Agreement the context in which the concept of agency is invoked indicates that the parties were as much concerned to exclude the possibility of their relationship being characterised as a joint venture or partnership as to invoke the concept of agency; see [9] above. There is no reason why they should not do that. As Finn J stated in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at 645-646, in the course of setting out detailed propositions about the nature of agency: It is legitimate for parties to avoid the "unwanted consequences" of a particular category of legal relationship by seeking to cast it in a form that takes it outside that category of relationship: Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 at 314. But whether or not they are successful in achieving that end does not depend simply upon whether, in an express provision of their agreement, they attribute or deny to their relationship a particular legal character -- be this, for example, employer and employee: Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 ; principal and principal or principal and agent: Board of Trade v Hammond Elevator Co, above; or partners: Ex parte Delhasse; Re Megevand (1878) 7 Ch D 511. The parties cannot by the mere device of labelling, no matter how genuinely intentioned, either confer a particular legal character on a relationship that it does not possess or deny it a character that it does possess: Ex parte Delhasse, above, at 532; see 2A Corpus Juris Secundum, "Agency", SS7; see also the observations of Lord Denning in Massey v Crown Life Insurance Co quoted in the Australian Mutual Provident Society case, above, at 389.


case_outcome: referred to

case_text: Although there has been no direct judicial consideration of the term "publication" in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section "deals expressly with the prevention of information given in open court from entering the wider public arena"; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438 per Madgwick J at [15]. The word "domain" has also been used interchangeably with "arena"; see generally Johnston v Cameron [2002] FCA 948 ; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243. In each of these cases, the entering of particular evidence or the name of a party into "the wider public arena" or "domain" contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith. 17. The underlying assumption of s 50 is the principle of open justice. The fact that the order must be necessary to prevent prejudice suggests that the party seeking to invoke a power of suppression carries a very heavy onus; see Madgwick J in Computer Interchange at [16] and Weinberg J in Johnston v Cameron at [89]. As such, the Court must consider the alleged prejudice that would be suffered by the respondent should the s 50 order not be granted. The Court must also determine whether the order is necessary to prevent this prejudice and whether this warrants a departure from the ordinary rule that open justice occur.


case_title: Johnston v Cameron [2002] FCA 948


case_text: Although there has been no direct judicial consideration of the term "publication" in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section "deals expressly with the prevention of information given in open court from entering the wider public arena"; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438 per Madgwick J at [15]. The word "domain" has also been used interchangeably with "arena"; see generally Johnston v Cameron [2002] FCA 948 ; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243. In each of these cases, the entering of particular evidence or the name of a party into "the wider public arena" or "domain" contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith.


case_text: The respondent's alternate submission, that it should not suffer or be put at serious risk of collateral damage or disadvantage through the abuse of the maps, is not made out on the evidence before the Court. Mr Stone gave evidence that the release of the maps bearing the labels applied by Mr Dell "would perpetuate and promulgate this misrepresentation, and create an opportunity for abuse". Presumably this "abuse" would be use of the information in a way designed to influence public opinion. However, it is well established that embarrassing or damaging publicity will not amount to prejudice warranting a departure from the principle of open justice; see Merkel J, with whom Finn and Stone JJ agreed in Herald & Weekly Times Ltd v Williams and Others [2003] FCAFC 217 ; (2003) 130 FCR 435 at [34] [36]. Further, the description of the maps as provisional plans rather than "indicative scenario models" or some such title cannot elevate the status of any potential use of this information to that of prejudice to the administration of justice. 23. In any event, the maps which the respondent seeks to protect by this s 50 application are already protected from inspection without leave of the Court or a Judge, or without the permission of the Registrar by O 46 r 6(4) of the Rules of the Court. As such, the Court will exercise its discretion to prevent access in circumstances where inspection would be prejudicial to the administration of justice. There has been no suggestion by the respondent that the s 50 order is necessary to prevent prejudice caused by a party other than a third party. Given the existing protection offered by O 46 r 6(4), the s 50 order is not necessary to prevent prejudice in respect to the administration of justice and the motion fails on this additional ground. 24. The respondent has also applied to the Court for an order under O 15 r 18 of the Rules of the Court to prevent the undertakings given by the applicant on 15 September 2005 from ceasing to apply. This application is brought by the respondent "only out of an abundance of caution and in order to prevent there being any argument about this aspect of the matter". Counsel for the respondent submitted that it was the intention of the respondent, evident from the terms of the undertakings, that those undertakings ensue for its benefit during the proceeding and after the hearing of it.


case_text: My attention has been drawn by counsel for both parties to well-known authorities dealing with indemnity costs, including NMFM Property v Citibank Ltd [2001] FCA 480 ; (2001) 109 FCR 77, Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. The Court has a discretion concerning the scale of costs. The discretion is unfettered except that it must be exercised judicially. The cases concerning indemnity costs illustrate that much turns upon the facts of the particular case. The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.


case_title: Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225


case_title: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397


case_text: On 10 January 2006, the application by APRA for interlocutory relief was heard inter partes by Gray J. Gray J made orders which, inter alia, restrained Siminton until the trial of the action or further order from receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside and from dealing with or disposing of certain assets and moneys: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140. 7 Siminton filed notices of motion seeking to discharge the orders made by Sundberg J, Gray J and myself. I adjourned the motions to a date to be fixed. 8 By notices of motion and statements of charge filed on 29 December 2005 and 19 January 2006 ('the contempt motions'), APRA applied for orders that the respondent be punished for contempt in respect of nine alleged breaches of the Sundberg J orders. Siminton applied to have the hearing of the contempt motions adjourned until after the hearing of the substantive proceeding against him or until after the conclusion of any criminal proceedings that might be commenced. I refused Siminton's application and proceeded with the hearing of the contempt motions. 9 Siminton, through his counsel, pleaded not guilty to the contempt charges and put APRA to proof of the charges. 13 It is not seriously in dispute, and I am satisfied that: (a) a copy of the Sundberg J orders was personally served on Siminton on 16 December 2005; (b) the terms of the orders were clear and were capable of being complied with by Siminton; (c) Siminton had knowledge of the terms of the orders. 14 The main issue at the hearing in relation to the charges was whether APRA had established beyond reasonable doubt that Siminton engaged in deliberate conduct which was in breach of the Sundberg J orders. The other issue was whether the Sundberg J orders were made without jurisdiction resulting in them being a nullity and not capable of founding a basis for the contempt motions. 15 In the statements of charge filed on 4 January 2006 and 19 January 2006 (respectively, 'the first statement of charge' and 'the second statement of charge') APRA alleged three kinds of breaches of the Sundberg J orders. First, breaches of Sundberg J's orders that Siminton be restrained, inter alia, from dealing with or disposing of moneys standing to his credit and/or that of his nominee. ('the disposal allegations'). Second, breaches of Sundberg J's orders that Siminton file certain documents and an affidavit with the Court ('the failure to file allegations'). Third, a breach of Sundberg J's order that a certain notice be placed on the websites of the Principality of Camside and the Terra Nova Cache ('the website notice allegation'). Each of the categories of charges and the charges themselves are dealt with below in chronological order. 16 On 15 December 2005, Sundberg J made the following order: '... 2. Until further order, the Respondent, whether by himself, his servants or agents or otherwise, be restrained from: ... (b) dealing with, withdrawing or disposing of, or giving any instructions in relation to the disposition or transfer of, all or any part of the moneys standing to the credit of the Respondent and/or his nominee in any account (whether held alone, jointly or in conjunction with any other person, including any accounts or property in the name of the Principality of Camside or the Terra Nova Cache) in any bank, building society or other financial institution and, without limiting the generality of the foregoing, the following account: Commonwealth Bank of Australia • Account Name: Principality of Camside • Account Number 3162 1027 8861; ... SAVE THAT nothing in this Order shall prevent the Respondent from: (d) paying his ordinary and usual living expenses up to a maximum amount of $500 per week, to be drawn first from any cash or bank account held by the Respondent other than the Commonwealth Bank of Australia account 3162 1027 8861; or (e) paying legal costs reasonably incurred in this proceeding or from paying such further sums as may be agreed in writing by the Applicant or permitted by further order of the Court. ' 17 Significant evidence in relation to the disposal allegations was set out in the affidavit of Paul Charles Monsted ('Monsted') sworn 23 January 2006. Monsted is the managing director of Technocash Pty Ltd ('Technocash') which he described as being 'an internet-based service to facilitate money transfers both within Australian and internationally.' 18 In paras [24]-[34] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.1 in the second statement of charge: '24. On 17 December 2005, the Respondent effected or gave instructions in relation to the transfer of $536,880.18 from the Terra Nova Cache account, held with Technocash, to the Agios account, also held with Technocash. 25. Technocash is an internet-based service that facilitates money transfers within Australia and internationally. 26. At all relevant times the Respondent held the Terra Nova Cache account at Technocash, Account No 6276 2753 8201 2500. 27. The formal name of the Terra Nova Cache account, being Account No 6276 2753 8201 2500, is "Dr David Siminton". The trading name of that account up to and including 21 December 2005 was "Terra Nova Cache". 28. The trading name of the Terra Nova Cache Account changed after 21 December 2005. At the time of the transfer of 17 December 2005, the trading name of the account was "Terra Nova Cache". This is evident from transaction details recorded in Annexure "PCM4" to the Monsted affidavit. 29. "PCM4" is a true copy of a print-out recording Transaction Details for the Agios account. The 5 th item in "PCM4" records a deposit of $536,880.[18] from the Terra Nova Cache account on 17 December 2005 to the Agios account. 30. The corresponding debit entry to the Terra Nova Cache account is recorded in Annexure "PCM2" to the Monsted affidavit. Item 8 records a debit of $536,880.[18] on 17 December 2005. The "Function" column records "Sent to BF", meaning that the funds were transferred to another Technocash BillFold account. The transfer was made from the Terra Nova Cache account to the Agios account. 31. The contact person for the Agios account is Hardy Erhardt, the Respondent's solicitor. 32. APRA submits that the transfer of $536,880.[18] from the Terra Nova Cache account to the Agios account was deliberate. The person who made this internet transfer was required to verify his or her intentions by selecting appropriate responses from drop-down menus after logging-on. The Respondent is the only person authorised to use his Technocash Account. No other persons are listed. 33. Further, APRA submits that the Respondent, or a person acting on the Respondent's instructions, made the transfer. The Respondent's Technocash Account has two levels of security: 33.1 The first level of security involves the user providing an account number and password to log-on to the account. 33.2 The second level of security requires the user to enter a "spend" password, which protects transfers out of the account. 34. The conclusion that the Respondent deliberately effected, or gave instructions in relation to the transfer of $536,880.[18] from the Terra Nova Cache account to the Agios account is the only rational inference to be drawn from the evidence outlined in paragraphs 32 and 33 above, and in paragraph 48 below [see para 21 of judgment]. Any alternative hypothesis could not be regarded as reasonable in the absence of evidence to support that hypothesis when that evidence, if it exists as all, must be within the knowledge of the Respondent.' (footnotes omitted) 25 Although counsel appearing for Siminton contended that the evidence did not establish deliberate breaches of the orders by Siminton as is alleged in the disposal allegations, he did not point to any specific deficiencies in APRA's evidence nor did he explain why the inferences that APRA was seeking to establish (to the effect that Siminton, whether by himself or others acting as his agent, disposed of or gave instructions to dispose of moneys in the accounts referred to in [2] of the Sundberg J orders) should not be drawn. 26 I am satisfied that the evidence adduced by the applicant establishes each of the matters of fact relied upon by APRA. The evidence was not controverted and is strongly supported by the affidavit and documentary evidence. 30 For the reasons set out in APRA's submissions, I am satisfied that APRA has proved beyond reasonable doubt that Siminton deliberately engaged in the conduct set out in charges 1.1 and 1.2 of the first statement of charge and charges 1.1, 1.2, 1.3 and 1.4 of the second statement of charge and that that conduct breached the Sundberg J orders in the manner alleged by APRA. 31 On 15 December 2005, Sundberg J made the following order: '3. Subject to the right of the Respondent to object to producing any information or document on the ground that to do so may tend to incriminate him, the Respondent, on or before 22 December 2005, make and swear, and file and serve, a full and sufficient affidavit setting out: (a) The name and address of any bank, building society or other financial institution at which there is an account in the name, or under the control, of the Respondent (including, but not limited to, any accounts in the name of the Principality of Camside or the Terra Nova Cache), together with the number of such account and the balance therein at the date of service of notice of this order upon the Respondent; (b) The amount of cash in the possession of or under the control of the Respondent at the date of service of notice of this order upon the Respondent (including any cash in the possession of or under the control of any person who lives at the same residential address as the Respondent); (c) The name and address of any person or persons indebted to the Respondent at the date of service of notice of this Order upon the Respondent, and the amount of the debt or debts owed by such person or persons; (d) Full details of all facts and matters within the knowledge or belief of the Respondent concerning the receipt of money by the Respondent, the Principality of Camside or the Terra Nova Cache, or the transfer of money by the Respondent to any other person, including in relation to each occasion on which money was received or transferred: (i) the amount so received or transferred; (ii) from whom the money was received or to whom the money was transferred; (iii) the address and [contact] details of the person or entity from whom the money was received or to whom it was transferred; (iv) when it was received or transferred; (v) for what purposes it was received or transferred; (vi) the terms upon which it was received or transferred; (vii) the manner in which the said funds were dealt with; and (viii) the current location and amount of the said funds or any earnings thereof.' 32 In paras [52]-[54] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.3 of the first statement of charge: '52. The Respondent did not, on or before 22 December 2005, make and swear and file and serve the affidavit the subject of paragraph 3 of the Order. 53. On 4 January 2006, the Respondent swore an affidavit, claiming privilege against self-incrimination in relation to the making and swearing of the affidavit the subject of paragraph 3. 54. Nevertheless, the Respondent breached paragraph 3 by failing to make and swear any affidavit on or before 22 December 2005.' (footnotes omitted) 33 Although Siminton filed no evidence, it was common ground that on a date after 22 December 2005, he exercised his entitlement to object to complying with [3] of the Sundberg J orders on the ground of self-incrimination. 34 In my view, APRA has not established charge 1.3 beyond reasonable doubt. The requirement to file the affidavit was expressed to be subject to Siminton's right to object to filing the affidavit on the ground of self-incrimination. There is some ambiguity in the order in relation to whether the obligation imposed by it is subject to the objection being made prior to 22 December 2005 or whether the obligation itself is subject to the right to object. As I explained in AIG at [33] and [41], a person will not be committed for contempt where, on one construction of the order said to have been breached, there may not have been a breach. In the present case, two constructions of [3] of the Sundberg J orders are reasonably open and, because the breach only arises on one of those constructions, the contempt alleged cannot be established beyond reasonable doubt. 35 On 15 December 2005, Sundberg J made the following order: '4. Subject to the right of the Respondent to object to producing any information or document on the ground that to do so may tend to incriminate him, on or before 22 December 2005, the Respondent produce to the Victoria District Registrar of the Court the originals of all statements of account, deposit slips, transfer applications, or records or memoranda of any kind in his possession, custody or control that relate to deposits with, earnings from (including any profit share or interest), or the withdrawal of any funds that relate to the Principality of Camside or the Terra Nova Cache.' 36 In paras [55]-[57] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.4 of the first statement of charge: '55. The Respondent did not, on or before 22 December 2005, produce to the Victoria District Registrar of the Court the documents the subject of paragraph 4 of the Order. 56. On 4 January 2006, the Respondent swore an affidavit, claiming privilege against self-incrimination in relation to the production of the documents. 57. Nevertheless, the Respondent breached paragraph 4 by failing to produce the documents on or before 22 December 2005.' (footnotes omitted) 37 For the reasons set out in [34], I am not satisfied beyond reasonable doubt that Siminton breached [4] of the Sundberg J orders by failing to produce documents to the Court as required by that order. 38 On 15 December 2005, Sundberg J made the following order: '5. Within two days of this order being served upon him, the Respondent cause to be published on the first page that a user views when he or she access: (a) any current, proposed or future internet site that uses the names "Principality of Camside", "Terra Nova Cache" or any derivation thereof; and (a) any other internet site controlled by the Respondent; a notice in form set out in Schedule 1 hereto.' 39 In paras [58]-[60] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.5 of the first statement of charge: '58. The Respondent did not, within two days of 16 December 2005 (the day when the orders of Sundberg J were served on the Respondent) cause a notice to be placed on the internet site of "the Principality of Camside" the notice in the form set out in Schedule 1 to the Order, as required by paragraph 5. 59. On 4 January 2006, the Respondent swore an affidavit in which he attested that the required notice "now appears on the website of the Principality of Camside" and that he had attempted to place a similar notice on "a website for the Terra Nova Cache". The Respondent does not testify as to the date when the required notice was inserted on the website of "the Principality of Camside". 60. Despite his belated claimed compliance with paragraph 5, the Respondent breached that order by failing, by 18 December 2005, to cause the notice to be placed on the website of "the Principality of Camside" a breach that continued until at least 23 December 2005.' (footnotes omitted) 40 In an affidavit sworn on 23 December 2005, a senior analyst at APRA, Matthew Paul Wyllie, stated that on 23 December 2005, he logged on to the Principality of Camside website and that no notice in the form set out in Schedule 1 to the Sundberg J orders had been placed on that website. He exhibited to his affidavit a print out of a webpage headed 'Welcome to HM Government of Camside' which had a button with the word 'Enter' on it. The date on the bottom of the print out is 23 December 2005. There is no notice of the requisite kind on that print out. 41 Paragraph 5 of the Sundberg J orders required Siminton to 'cause' a particular outcome. He failed to do so and there is no evidence that he was unable to 'cause' that outcome. In the circumstances, I am satisfied beyond reasonable doubt that Siminton breached [5] of the Sundberg J orders by failing to cause the requisite notice to be posted on the website of the Principality of Camside within two days of service of the Sundberg J orders. I am also satisfied beyond reasonable doubt that Siminton breached [5] by failing to cause the requisite notice to be posted on the website of the Terra Nova Cache within two days of service of the Sundberg J orders. 42 The other basis of Siminton's opposition to the contempt motions was his counsel's endeavour to argue that the Sundberg J orders were made without jurisdiction and were therefore a nullity. It was submitted that it follows that Siminton was not obliged to comply with the orders and that therefore there could be no breach of those orders. 43 Although I had some difficulty in following the submission, made on behalf of Siminton the matters alleged by him can be summarised as follows: (a) a failure to file a statement of claim as required by O 4 r 6(1A) of the Federal Court Rules ; (b) the failure of APRA to make a full and frank disclosure to Sundberg J on the ex parte application; (c) APRA's concession to Sundberg J that the evidence did not establish a breach of s 7 of the Act; (d) APRA's claim for damages was an abuse of process; (e) there was no proper basis for seeking a Mareva injunction; (f) the interim injunction should not have been made 'until further order'; (g) the usual undertaking as to damages was not required; (h) Sundberg J did not take into account the potential effect of the order on third parties; (i) APRA submission about the threshold for a Mareva injunction was wrong; (j) Sundberg J stated in the transcript that he had not read all of the evidence; and (k) APRA's application was an abuse of process. 44 There are two fundamental problems with the submission. The first is that the matters alleged by Siminton to establish absence of jurisdiction to make the Sundberg J orders do not, even if made out, establish absence of jurisdiction. Counsel for Siminton was not able to cite any authority in support of his submission that any of the above matters, if made out, would result in absence of jurisdiction. Plainly, none of the matters relied upon go to the jurisdiction of a judge of the Court to make the Sundberg J orders. I would add that, in any event, the submission was wholly misconceived as I am not satisfied that the allegations relied upon are justified or would warrant any of the Sundberg J orders being set aside. For example, s 65A(10) of the Act provides that APRA 'cannot be required' to give an undertaking as to damages. Also, it is clear that APRA's proceeding does not fall within O 6 r 6(1A). In so far as any of the above matters go to the merits, Siminton's counsel was unable to persuade Gray J on the later inter partes application hearing that Mareva type orders should not be made or that there was any disqualifying conduct of any kind on the part of APRA.


case_text: In Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 (at [6]), I set out the principles applicable to proceedings for contempt: 'Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 ('Witham') at 530.'


case_text: In Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 (at [6]), I set out the principles applicable to proceedings for contempt: 'Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 ('Witham') at 530.' 11 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ observed (at 534) that: 'The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt.' 12 The evidence adduced by APRA and relied upon by it without objection was set out in the following affidavits (together with the exhibits referred to in those affidavits): (a) David John Harley dated 22 December 2005 and 24 March 2006; (b) Matthew Paul Wyllie dated 22 December 2005 and 23 December 2005; (c) Kelly Louise Stephens dated 20 January 2006; (d) Andrew Kok Loong Loh dated 20 January 2006; (e) Yolanda Jodie Robinson dated 23 January 2006; (f) Paul Charles Monsted dated 23 January 2006.


case_text: The relevance of the failure of an accused, to give evidence was explained in RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620 where Gaudron A-CJ, Gummow, Kirby and Hayne JJ stated (at 632-633 [27]): '...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: "[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."' (footnotes omitted)


case_text: See also Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Ors [2000] FCA 629 (' AIG ') at [58]. 29 In the present case, Siminton's failure to contradict the 'damning' inferences which APRA claims ought to be drawn from the proven facts, leaves no real scope for a rational or reasonable hypothesis consistent with his innocence. In the circumstances, I am satisfied beyond reasonable doubt that: (a) the inferences contended for by APRA ought to be drawn; (b) the conclusions contended for by APRA are entirely justified and warranted by the evidence; (c) the evidence does not justify or warrant a finding that there is any reasonable or rational hypothesis consistent with Siminton's innocence of the contempt charges.


case_text: The second fundamental difficulty with Siminton's jurisdiction argument is that the Sundberg J orders were made by a judge of a superior court of record and were therefore valid and binding until set aside, even if the orders were in excess of jurisdiction: see Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571 at 590; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 602 and R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185 at 215.


case_title: Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590


case_title: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185


case_text: The need to obey superior court orders made in excess of jurisdiction was explained in Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 in which the High Court considered, inter alia, the effect of an order which ought not have been made. Wilson J and Dawson J stated (at 620): 'In the same way, a court which is given power to determine the facts upon which its jurisdiction depends may, if it proceeds upon a wrongful determination, be said in one sense to exceed its jurisdiction, but its orders will be valid unless and until corrected on appeal. The position is otherwise where it is apparent on the face of a purported exercise of jurisdiction that there is no power or where the court's jurisdiction depends upon matters in dispute which cannot be conclusively determined by the court.' (footnotes omitted) 47 See also Deane J (at 627) with whom Mason CJ agreed (at 616).


case_text: Even where jurisdiction is lacking as a result of invalidity of the legislation purporting to confer jurisdiction, an order of a superior court will be binding until set aside. In Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158, the High Court considered the effect of orders for winding up made by the Federal Court pursuant to jurisdiction purportedly conferred by invalid legislation. The High Court concluded that the orders of the court were binding until set aside despite the absence of jurisdiction. Gaudron J stated (at 185-187 [52]-[57]): '...the Constitution expressly contemplates that federal courts might be empowered to make decisions with respect to their own jurisdiction which are binding until set aside. In establishing the Federal Court as "a superior court of record", the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution . And, if the Federal Court determines that it has jurisdiction, it is obliged, subject only to limited and well recognised exceptions, to exercise that jurisdiction to determine the rights and liabilities in issue. That is the nature of judicial power. The practical consequence of those two considerations is that, by operation of s 109 of the Constitution , orders of the Federal Court, even if made without jurisdiction, are final and binding unless set aside on appeal or pursuant to s 75(v) of the Constitution . ... It follows from what has been said with respect of s 5(2) of the Federal Court Act that an order of the Federal Court made without jurisdiction is not a nullity.' (footnotes omitted) 49 Gummow J and Kirby J took a similar approach: see 235-237 [214]-[220] and 248-249 [254]-[256] respectively. McHugh J also agreed that the orders were binding until set aside in so far as they impliedly determined that the Federal Court had jurisdiction (at 215 [151]). Hayne and Callinan JJ expressed reservations about whether orders made by the Federal Court in relation to matters beyond the Commonwealth's legislative competence would be binding, but nonetheless stated (at 279 [344]): 'The practical consequence...is that orders made by the Federal Court are valid until they are set aside. That is so because implicit in an assertion of jurisdiction is the conclusion about the constitutional validity of that assertion. For the reasons given earlier, the authority to decide and the power to provide that the order is binding until set aside is sufficiently rooted in ss 77 and 76.'


case_text: However, as was observed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391: 'It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the actual legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and order must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.'


case_text: See also the discussions in Bray v F Hoffman-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 at 57-58 [197] . 52 APRA's claims against Siminton constituted a justiciable dispute arising under the Act, which is a law made by the Federal Parliament. The jurisdiction of the Court in respect of that dispute is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which confers jurisdiction on the Federal Court in any matter arising under any laws made by the Federal Parliament. It is unnecessary to consider if it also arises under s 39B(1A)(a). Section 65A of the Act and s 23 of the Federal Court Act 1976 (Cth) plainly conferred power to make the Sundberg J orders. In particular, s 65A conferred power on the Court to grant 'an interim injunction' pending determination of an application for an injunction under s 65A(1). The jurisdiction exercised by Sundberg J was one in which his Honour was given power to determine the facts upon which his jurisdiction was based. It was not a jurisdiction that was preconditioned upon facts or any other matters which his Honour was not given the power to determine. Accordingly, the orders were valid and binding until set aside even if, contrary to my findings, there was an excess or absence of jurisdiction. 53 For the above reasons, the arguments of Siminton as to absence of jurisdiction to make the Sundberg J orders are without substance and are to be rejected. 54 It follows that the charges the subject of the disposal and website allegations have been established beyond reasonable doubt and that the charges the subject of the failure to file allegations are to be dismissed. I propose to give directions for a further hearing in relation to penalty. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J. Associate: Dated: 30 March 2006 Counsel for the Applicant: D Sharp Solicitor for the Applicant: Erhardt & Associates Counsel for the Respondent: D Mortimer SC with St J Hibble and V Priskich Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 29 March 2006 Date of Judgment: 30 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/326.html


case_text: In Australian Securities and Investments Commission v Rich [2006] NSWSC 643 ; (2006) 201 FLR 207 at [9] , Austin J said that in his opinion s 26 of the Evidence Act is subject to s 192. As his Honour observed, s 192 provides that in granting leave or making a direction, the Court is to take into account, amongst other things, the powers which it has to make another order or to give directions in relation to evidence; see s 192(2)(e) of the Evidence Act . Austin J was of the view that the Court could not make a determination under s 26 of the Evidence Act as sought in that case because it was premature; see Rich at [15]. His Honour was of the view that the Court was not yet in a position to identify or assess all of the matters which must be taken into account in deciding whether to give a direction. 8 That seems to me to be the position in the present case. I will have, at the trial, power to make orders under a number of sections of the Evidence Act , including s 38 which deals with unfavourable witnesses, s 41 which deals with improper questions and, in particular, s 42 which deals with the power of the Court to limit or disallow the use of leading questions where, for example, a witness has an interest consistent with an interest of the cross-examiner or where the witness is sympathetic to the party conducting the cross-examination. It is unnecessary to address in these reasons the triggers for the operation of the powers conferred by those sections.


case_outcome: approved

case_text: It does seem to me as Young J said in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 17 that the course of trials in NSW has always been for a party calling the witness to examine the witness in chief and for all other parties to test the evidence by cross-examination, and then for the person calling the witness to re-examine the witness. 10 I do not see that anything that has been put to me this morning justifies me, at present, in departing from the ordinary course. Whilst there appears to be power to do so under s 26 , as I have said, it is in my view premature for any such order to be made. I think that the appropriate course is for the trial to take place in the ordinary way with objections to evidence being taken as and when they arise. 11 If the jurisdictional triggers set forth in s 38 are enlivened, then no doubt ASIC will make an appropriate application in the course of the hearing. I am, of course, anxious for the trial to proceed in the most efficient and expeditious manner as possible but I am unable to see any reason, at this stage, for making the orders sought in the notice of motion either in the form as filed or in the way in which it was confined by Mr Stevenson during argument.


case_text: The matters for consideration under s 84(5) of the Act, as in force, in respect of Worimi's motion are: (1) Does Worimi have an interest within the meaning of s 84(5) of the Act? (2) May that interest be affected by a determination in the proceedings? (3) In any event, should the Court exercise its discretion to join Worimi as a respondent? ( Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [32] not the subject of comment by Gyles and Sundberg JJ on appeal in Gamogab v Akiba [2007] FCAFC 74).