case_text: is then submitted that Gray's reasoning was based upon the analysis in Re Excel Finance Corporation Ltd (Receiver and Manager Appointed); Worthley v England (1994) 52 FCR 69 of the statutory provisions as they stood prior to the amendments which were in force at the time relevant to this case in particular by reference to the former s 597 rather than by reference to the present s 596A and s 596B. A particular complaint is that this caused no attention to be paid to the mandatory nature of s 596A. It will be recalled that par 19(b) and par 19(c) of the Gray memorandum were in the following terms: '(b) Different matters arise for consideration at each stage of the two stage process. The first stage requires ASIC to consider the relationship which the applicant has to the corporation, and may also include matters personal to the applicant, such as the applicant's relationship to the person to be examined. The second stage requires the Court, in deciding whether to grant the examination order, to take into account different matters including the relationship between the examinee and the corporation as well as relationship between the applicant and the examinee. (c) Contributories (including members) are a class of persons that would normally have the appropriate connection to the company to be an appropriate person to be authorised by ASIC.' It is argued that, as a result, ASIC did not take into account a relevant consideration namely the current form of the statute, did take into account an irrelevant consideration, namely the former provision, and made an error of law. In my opinion, the point which is made, whilst correct insofar as it goes, does not affect the validity of the reasoning adopted. The discussion by Gummow, Hill and Cooper JJ in Re Excel 52 FCR between 79 and 88 explains the difference between the authorisation decision, on the one hand, and the issue of the summons on the other and puts the issue in its historical context. Their Honours said (52 FCR at 83 84): 'What subs (1) does, in its reference to authorisation, is permit the Commission to extend the class of persons who may, in a particular case, have standing through the grant by the Commission of authorisation. The Commission, in determining whether to grant authorisation, will consider the relationship which the person seeking authorisation has to the relevant corporation and the external management of that corporation which is in progress. Contributories and creditors would normally have the appropriate connection with the corporation (as the history of examination orders, already set out, demonstrates), although other factors relevant to a particular case may make the authorisation of such persons inappropriate.' And their Honours said (52 FCR at 86): 'But while the purpose of examinations ordered to take place under s 597(3) may be so stated, the role to be played by the procedure of authorisation contained in subs (1) is much narrower. It is to the subject matter, scope and purpose of subs (1) to which attention must be given to resolve the present question, not the subject matter, scope and purpose of subs (3). As we have already noted, the grant of authorisation under subs (1) does no more than confer standing upon the person authorised to make an application. That being the case, reference to the subject matter, scope and purpose of subs (1) leads to the conclusion that the decision-maker, in determining whether to authorise a particular person to make applications in relation to a particular corporation, will be required only to consider the relationship which that person has to the external administration and in a particular case the appropriateness of that person being given standing to apply to the Court under subs (2).' In my respectful opinion, those statements remain apposite notwithstanding the amendments to the provisions. The two stage process remains and there is nothing about the amendments which renders inappropriate the explanation of the proper approach to the first stage. It should be noted that historically any contributory could apply for an examination order. Furthermore, the relevant parts of the Gray memorandum refer to the authorities relevant to the new provisions and expressly refer to the new provisions themselves. It can be assumed that the decision maker, Taylor, was familiar with the statutory provisions. He was, after all, the delegate of ASIC. The question is whether the decision in question prejudiced the rights of the Administrators. There is some debate as to whether the relevant power being exercised is that conferred by s 11(4) of the ASIC Act or the substantive provisions of the Corporations Act . The better view in this Court is the former ( Re Excel 52 FCR at 82). Whether the correct answer is either or both is of little significance for the resolution of the present issue. The power is unconstrained by any express provision and the only effect of the impugned decision is to put the appointee in a position to apply for a summons pursuant to s 596A and s 596B of the Corporations Act as an eligible applicant. That appointment has no effect upon any other person. The interests of other persons are not affected unless and until a summons is issued. The focus upon the Administrators in this case tends to distort perspective. It does not even follow that the issue of a summons for examination and the conduct of the examination will have an adverse impact upon all potential examinees. An examinee may be asked to give an account of what occurred in the affairs of the company without any reflection upon the examinee or the disclosure of any information personal to the examinee. Examinations may be conducted in order to obtain information without any defined target and, even if there is a defined target, many examinees will not be that target. Given the width of s 596A and s 596B , it is apparent that it would be quite impractical to give notice to all persons who might be conceivably affected by the appointment of a person as an eligible applicant in relation to the affairs of a particular corporation either as a potential examinee or a person potentially affected by evidence to be given by an examinee. In the present case it may be accepted that, at the time the decision was made, the Administrators had been identified as both targets and examinees. Thus, in a practical sense, a grant of the status of eligible applicant was a step towards an examination which was either inevitable or highly likely. In my opinion, that practical consequence does not mean that the difference between the stages explained in Re Excel 52 FCR 69 can be elided. In Ainsworth Mason CJ, Dawson, Toohey and Gaudron JJ said (175 CLR at 576): '... what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.' Either the statutory power is subject to the obligation to afford prior notice or it is not. The circumstances of the particular application for exercise of the power do not affect the question as to whether the implied obligation has any operation in relation to the power in question. The decision to authorise the Evans did not itself directly adversely affect the interests of others in the manner required to bring the statutory presumption into play. For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_outcome: cited

case_text: place of so called 'legitimate expectation' in administrative law has always been controversial. It was considered most recently by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 per Gleeson CJ at [26] [38]; per McHugh and Gummow JJ at [47] [49], [61] [83] and [103] [106]; per Hayne J at [116] [122]; per Callinan J at [140] [148]. In my opinion, that discussion is inconsistent with the features in the dealings between the parties here that were identified as giving rise to or creating an obligation to give notice to the Administrators before exercising the statutory power in question. I should add that the ASIC publication concerning natural justice (Australian Securities and Investments Commission, Policy Statement 92: Procedural Fairness to Third Parties, Australian Securities and Investments Commission , Canberra, 1995) does no more than purport to give effect to the requirements of the law.


case_text: the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_text: second argument was that if ASIC had notified the Administrators prior to the decision, so giving them the opportunity of making submissions in opposition, there is no reason to suppose that would have produced a different outcome ( Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141). It was submitted that ASIC had received significant submissions from or on behalf of the Administrators in relation to the original investigation and in relation to the release of transcripts which said all that could be said, as was revealed by the nature of the response made when the authorisation was known. Counsel for ASIC submitted that the evidence suggested that ASIC took those considerations into account. Some of the difficulties of applying the Stead principle were discussed by McHugh, Gummow, Callinan and Heydon JJ in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . In the present case, the question was whether particular persons should be appointed as eligible applicants. I can see no evidence that that topic was addressed in the submissions made on behalf of the Administrators prior to the decision being made.


case_text: [1992] HCA 10 ; 175 CLR 564 concerned publication of a damning report. The same can be said of Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353 that was effectively overruled by Annetts v McCann (per Mason CJ, Dean and McHugh JJ 170 CLR at 598) and Ainsworth (per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 576 577).


case_text: Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich & Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.


case_title: Commonwealth Bank of Australia v Heinrich [2003] FCA 540


case_outcome: discussed

case_text: Freeman v National Australia Bank Ltd [2006] FCAFC 67 a Full Court observed (at [24]-[25]) that existing authority established that in determining whether particular proceedings are in fact vexatious, a court may take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. The Full Court also noted that the expression "habitually and persistently" implies more than "frequently", and suggests a degree of stubbornness on the part of the person in question. The element "without any reasonable ground" is of course to be determined objectively. It is immaterial that the person may believe in the justice of his or her argument, and may not understand that the argument has been authoritatively rejected.


case_title: Granich & Associates v Yap [2004] FCA 1567


case_outcome: applied

case_title: Henderson v Henderson (1843) 3 Hare 100; (1843) 67 ER 313

case_text: Singh is therefore confronted with the fact that, by reason of his failure to read the SSAT's reasons for decision, or to have them translated to him, he did not raise, on merits review, an argument that would have been open to him. This brings into play the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. There the High Court accepted as correct the extended principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115; (1843) 67 ER 313 at 319: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." In Anshun , the Court found that the principle laid down in Henderson extended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun . Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through "negligence, inadvertence or even accident" led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this.


case_title: Horvath v Commonwealth Bank of Australia [1999] FCA 504


case_title: Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478


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


case_title: Ramsey v Skyring (1999) 164 ALR 378

case_text: 42B(1)(b) must be applied having regard to a fundamental principle of the rule of law. Every person has a right to apply to a tribunal, or a court, to seek remedies in consequence of an alleged infringement of his or her rights. Because a direction given under s 42B(1)(b) denies a person this right, it is a remedy that should not be invoked except in an extreme case. See generally Ramsey v Skyring (1999) 164 ALR 378 at 389-91 (per Sackville J).


case_outcome: referred to

case_text: Tribunal summarised Mr Singh's contentions as follows. He claimed that the application that he brought before the SSAT differed from his earlier applications because it raised a new and different issue, namely whether the payment of $129,382.87 (which he received as a lump sum) was a "lump sum compensation payment" or whether it was "arrears payments for the social security purposes". He further claimed that he was seeking, by the current proceedings, to have determined whether a decision of the Federal Court, Secretary, Department of Social Security v Cunneen [1997] FCA 1033 ; (1997) 78 FCR 576, was correct. The Tribunal concluded that Mr Singh was attempting again to review decisions that had previously been made by Centrelink, by the Tribunal itself, by the Federal Magistrates Court and by this Court regarding his compensation recovery. It found that Mr Singh believed that he had a right to bring this latest proceeding because he was of the view that there had been a "conspiracy and fraud on the part of Centrelink and the Insurer". The Tribunal referred to the various documents lodged by Mr Singh, noting that they contained inflammatory and derogatory references regarding the conduct of officers of Centrelink, the Workers' Compensation insurer and his former solicitors. According to the Tribunal, Mr Singh alleged conspiracy, lies, fraud, betrayal of trust, deception and that innocent injured workers had been cheated. The Tribunal noted that s 42B of the AAT Act was rarely invoked. It referred to dictionary definitions of the terms "frivolous" and "vexatious" and said (at [35]): "I am of the view, having regard to the history of the proceedings initiated by Mr Singh, that his intended application is in fact both frivolous and vexatious."


case_text: Singh then appealed to the Full Court of the Federal Court seeking to revoke the orders made by consent by Finkelstein J. That appeal was dismissed by Beaumont, Kiefel and Hely JJ on 21 September 2001: Singh v Secretary, Dept of Family & Community Services [2001] FCA 1281. Following further requests from Mr Singh, Centrelink wrote to him on 22 January 2002 stating that it had reviewed his case and decided not to change its decision to recover a compensation debt of $88,633.34. Mr Singh asked that the matter be referred to an authorised review officer. On 4 February 2002, an authorised review officer informed Mr Singh that he had no power to review the matter as it had already been reviewed by the SSAT, as well as the Tribunal itself. Mr Singh then lodged a further application with the SSAT on 19 February 2002. The SSAT decided on 13 May 2002 to again affirm the decision under review.


case_title: Singh v DFCS [2003] FMCA 566

case_text: Singh then lodged a further appeal to the Tribunal, which on 17 December 2002 affirmed the decision of the SSAT dated 13 May 2002. On 2 January 2003, Mr Singh appealed to the Federal Court seeking to set aside the Tribunal's decision of 17 December 2002. On 19 March 2003, I ordered that Mr Singh's application be transferred to the Federal Magistrates Court. On 5 December 2003, Hartnett FM dismissed the appeal with costs: Singh v DFCS [2003] FMCA 566. Mr Singh appealed to the Federal Court, and the appeal was heard by Gray J. On 23 December 2004, his Honour dismissed the appeal with costs: S ingh v Secretary, Department of Family and Community Services (Centrelink) [2004] FCA 1685. On 9 September 2005, the High Court dismissed an application for special leave to appeal, with costs: Singh v Secretary, Dept of Family and Community Services (Centrelink) [2005] HCATrans 759.


case_text: is necessary to set out something of the background to this matter. Gray J summarised a large part of that background in his judgment dated 23 December 2004: Singh v Secretary, Department of Family & Community Services [2004] FCA 1685. The Tribunal also summarised the history of this matter in its decision dated 3 July 2006. Mr Singh was born in 1950. He was employed by the Public Transport Corporation from 1983, initially as a tram conductor, and later as a tram driver. On 2 January 1991, Mr Singh suffered a work-related injury, which resulted in an ongoing medical condition. Between 12 June 1991 and 30 November 1993, following an admission of liability, Mr Singh received weekly compensation payments from an insurer, pursuant to the Accident Compensation Act 1985 (Vic). Mr Singh then lodged a further appeal to the Tribunal, which on 17 December 2002 affirmed the decision of the SSAT dated 13 May 2002. On 2 January 2003, Mr Singh appealed to the Federal Court seeking to set aside the Tribunal's decision of 17 December 2002. On 19 March 2003, I ordered that Mr Singh's application be transferred to the Federal Magistrates Court. On 5 December 2003, Hartnett FM dismissed the appeal with costs: Singh v DFCS [2003] FMCA 566. Mr Singh appealed to the Federal Court, and the appeal was heard by Gray J. On 23 December 2004, his Honour dismissed the appeal with costs: S ingh v Secretary, Department of Family and Community Services (Centrelink) [2004] FCA 1685. On 9 September 2005, the High Court dismissed an application for special leave to appeal, with costs: Singh v Secretary, Dept of Family and Community Services (Centrelink) [2005] HCATrans 759.


case_text: Singh then filed a notice of motion in this Court seeking to set aside the reasons for judgment and the orders of Gray J made on 23 December 2004. On 24 October 2005, Gray J dismissed the motion, with costs: Singh v Secretary, Department of Family and Community Services [2005] FCA 1625.


case_text: on 6 February 2006 Mr Singh sought to issue a further notice of motion. That matter was heard in chambers by Ryan J who on 8 March 2006, directed the Registrar not to accept the notice of motion: Singh v Secretary, Department of Family and Community Services [2006] FCA 189. In the interim, on 31 October 2005 Mr Singh wrote to a delegate of the Secretary to the Department of Family and Community Services requesting a recalculation of the compensation debt. A Centrelink officer refused that request, citing the various decisions previously made by the Federal Court. That decision was affirmed on review by an authorised review officer, and on 22 March 2006, on appeal to the SSAT. It was against that decision of the SSAT of 22 March 2006 that Mr Singh sought review in the Tribunal. That application resulted in the Secretary, Department of Employment and Workplace Relations making an application to the Tribunal to have Mr Singh's application dismissed as frivolous and vexatious, and to have him prevented, without leave, from re-agitating the issues that have given rise to the numerous proceedings identified above. The Tribunal conducted a hearing on 19 June 2006. Mr Singh applied at the outset to have the Tribunal member, Mr John Handley, disqualified from hearing his application because Mr Handley was not "independent" having previously dealt with one of Mr Singh's many applications in relation to this matter. Eventually, Mr Singh withdrew that application and, as the Tribunal records (at [5]), consented to the matter proceeding before Mr Handley. In its reasons for decision, the Tribunal set out in some detail the history of Mr Singh's attempts to avoid having to repay the various sums totalling $88,633.34. It noted that he had provided some 300 pages of documents in support of his application to review the decision of the SSAT dated 22 March 2006, and that when he discovered that the respondent would seek to have his application summarily dismissed he wrote attaching another 68 documents. In addition he subsequently provided the respondent with a further 17 page document and, when the hearing commenced, lodged a further seven page document being the contentions upon which he relied. The Tribunal added that the application brought by Mr Singh was in its view "obviously untenable" and "utterly hopeless". It referred to the "repetitious appeals" lodged by Mr Singh as having no merit, and to the order of Ryan J on 8 March 2006 that the most recent application to this Court not be accepted because it amounted to an abuse of process. It described Mr Singh's constant attempts to re-litigate issues that had been conclusively determined against him as a waste of public resources, involving the harassment of persons, and as an abuse of process. It formulated its direction preventing him from bringing further proceedings, without the leave of the Tribunal, with some care. Its aim was to ensure that Mr Singh was not precluded from seeking review of decisions that were unrelated to those that were the subject of the numerous challenges brought by him in recent years. Mr Singh appeared before me without legal representation. He had the assistance of an interpreter, but generally seemed well able to communicate in English.


case_text: The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'. 16 In Wang , Bowen CJ stressed that, where a public regulator is seeking an injunction to restrain conduct which might mislead or deceive members of the public generally (and, I would interpolate, a relevant section or sections of the public, even if numerically small), 'the weight of public interest in the scales in favour of rejecting an application for a stay would be very heavy.' 17 There are legitimate public interest considerations to be ventilated, and possibly vindicated, in these proceedings and, while not overlooking the inconvenience for the respondents of having to fight on a number of fronts, and the expense and difficulty of so doing, it seems to me that the justification for a stay has not, on a balance of relevant factors, been made out. 18 Accordingly, I reject the application for a stay with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 29 March 2006 Counsel for the Applicants: Ms N Sharp Solicitor for the Applicants: Corrs Chambers Westgarth Solicitor for the Respondents: Ramrakha Jenkins Date of Hearing: 21 March 2006 Date of Judgment: 21 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/302.html


case_outcome: followed

case_text: The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'. 15 In Sterling Pharmaceuticals at 291, Lockhart J sought to provide something of a check-list of matters that might be considered. These included the priority in point of time of the institution of the different proceedings; whether the termination of one proceeding was likely to have a material effect on the other; the public interest; the undesirability of waste of time and effort; and of course, costs, if substantially the same issues were to be ventilated in actions in different courts; the general policy of the law discouraging multiplicity of proceedings in relation to similar issues; and, as his Honour said, '[g]enerally balancing the advantages and disadvantages to each party'.


case_text: The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'.


case_text: Section 424A of the Act is one of a number of provisions designed to accord what might be described as "statutory procedural fairness" to applicants before the Tribunal. Relevantly its purpose was explained by Gummow J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 191 as follows: "[116] Paragraph (b) of s 424A(3) relieves the RRT from what otherwise might be an obligation to give particulars of information already supplied by the applicant for the purpose of the application. In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 34, 38-39, the Full Court indicated that the subject matter of the exception is information provided by the applicant for review by statutory declaration under para (a) of s 423(1) and in response to an invitation by the RRT under s 424(2). That construction was not challenged on this appeal and should be accepted. [117] ... [118] What can be stated is that the evident object of s 424A is that, with the qualifications and exceptions just mentioned, fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it. In Al Shamry, Merkel J correctly observed: " Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposed to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reasons for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it" See also at 175 [50] per McHugh J.


case_text: The obligation imposed on the Tribunal by s 424A(1)(a) is an obligation to provide "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision ... under review." This provision requires the Tribunal to alert an applicant to specific information which it considers would be the reason for dismissing the applicant's claim. The Tribunal cannot resort to generality when the information it has relates to specific conduct by specific individuals and it is that conduct which is relied on by the Tribunal as the reason or part of the reason for it dismissing an appeal: see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [31] - [36] . 17 The legal issues raised by this case are somewhat different and, insofar as the researches of counsel and my own review of authority would suggest, are novel. The appellant's allegation of lack of specificity in this case focuses on the terminology adopted by the Tribunal when it sought information from the appellant in its letter of 23 January 2006. His contention is that the reference to "[y]our profile as a leader and activist in Burma ..." is insufficiently precise because it fails to make clear what information is comprehended by the word "profile". In particular, it is contended that the reference to the appellant's "profile" does not make clear to him that the Tribunal had in contemplation an adverse finding that he was not known as an Indian leader of demonstrations in 1987 and that a reason for this conclusion was that the claim was made for the first time at the review stage of his application. The respondent Minister contends that the appellant can be taken to have understood what was meant by the reference to his "profile" by reason of the various exchanges during the hearing before the Tribunal during which the member invited comment from the appellant about him being an "Indian leader". In one such exchange, for example, the member said to the appellant: "The Indian leader this has only been raised more recently. In your first lot of documents, you said you took part. You were a bystander. You were hit and you took part because you got angry. But there is no talk about you being an Indian leader or outer head. Its something that has come up more recently I think. I could be wrong. I was wondering why its only been raised more recently rather than in your initial statement." 18 Whether or not information has been identified with sufficient specificity for the purposes of s 424A(1) of the Act will be a matter of fact, degree and context depending on the circumstances of the case. Past dealings between an applicant and the Tribunal may have involved the adoption of terminology which, although it may lack clarity if addressed to a third party, will readily be comprehensible to the applicant. 19 In this case, the reference, by the Tribunal, to the appellant's "profile" and changes to it between the time he made his original application and the time at which he was preparing submissions to the Tribunal and appearing before it can reasonably be seen to comprehend his claimed profile as an Indian leader. He used the term "profile" in this way in his statutory declaration of 14 December 2005. The declaration read in part: "The Burmese authorities are very suspicious of Burmese who have been overseas in western countries such as Australia, particularly if they have a past and significant profile in Burma like myself. I wish to add by way of clarification that my involvement in the protest of 6 August 1987 was very important. I was a leader of this protest was in the front line. I was known by the authorities as "the Indian leader" because of my appearance and ethnicity. So at the time, the authorities considered me a leader. The same is the case later in the 8/8/1988 protest, where I again took a leading role in the demonstrations. Protesters at my house ("the Indian's house") before going to the demonstrations. This is why I continue to be monitored and pursued by the authorities." However, a more extensive "profile" was described in written submissions lodged with the Tribunal five days later. The relevant submission was that the appellant had "a profile as an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies." That document also contained reference to the appellant's alleged "profile as security guard with the US Embassy and political dissident." 20 The Tribunal sought to meet its obligation under s 424A(1)(a) by advising the appellant that it had information that would, subject to any comments which he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. One item of information which was identified was the appellant's "profile as a leader and activist in Burma [seeming] to have increased in the time [since he] first arrived in Australia and claimed protection and [his] more recent statements at the hearing." I have come to the view that the language employed by the Tribunal has failed to satisfy its obligation under s 424A(1)(a) of the Act because it fails to alert him with sufficient specificity to the adverse material on which it ultimately relied, in part, to reject his claim. The reference to the appellant's "profile as a leader and activist in Burma" does not unambiguously draw his attention to the view that he "was known as an Indian leader of the demonstrations". The profile claimed by the appellant was much broader in its reach ("an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies."). Moreover, the wording employed by the Tribunal lacks the necessary clarity. It is open to the construction that it is referring to an increase in the appellant's profile in Burma in the period between his arrival in Australia in March 2004 and the hearing before the Tribunal on 19 December 2005. The Tribunal does not make it clear that the point of its concern is that the appellant's claims had appeared to it to have changed in Australia in that period. The appellant's response to the Tribunal's request to comment on this item of information led to a denial that his profile had increased "in the way suggested". It does not appear that the appellant and his advisors understood that the Tribunal was directing particular attention to the claim that he was perceived to be "an Indian leader". 21 Although the point was not raised or relied on by the appellant, I would also express my doubt that the Tribunal satisfied its obligations to the appellant under s 424A(1)(b) of the Act . The Tribunal advised the appellant that the reason that the information identified in its letter of 23 January 2006, "is relevant [is] because it indicates some inconsistent account in relation to these aspects of your claims and evidence at different stages of the proceedings." Such a statement was apt to mislead if it was intended to refer to alleged inconsistencies between what the appellant said at the time at which he applied for a protection visa and what he told the Tribunal in written submissions and orally. No "proceeding" was extant at the time of the original application.


case_text: The respondent Minister contends that, even if the Tribunal has failed to meet its obligations under s 424A of the Act , it should be held that it was, in any event, not obliged to comply with s 424A(1) because it was relieved of that obligation, in respect of the relevant item of information, by the terms of s 424A(3)(b). That provision stipulates that s 424A(1) does not apply to information "... that the applicant gave for the purpose of the application ..." The question then becomes one of identification: precisely what information was given by a particular applicant to the Tribunal that the Tribunal considers would be the reason or part of the reason for affirming the decision under review? The relevant application is the application to the Tribunal not the earlier application for a protection visa: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. One can readily understand the purpose of a provision such as s 424A(3)(b) where an applicant has given the Tribunal information which is adverse to his or her interests. It is not as readily apparent that such an exemption is intended to apply in circumstances in which the Tribunal determines that it does not accept such a claim and proposes to reject it. 23 In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .


case_text: In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471


case_outcome: considered

case_title: NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205


case_title: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435


case_text: It is clear in the present case that the appellant "gave" the Tribunal the relevant information to the extent that he made the claims relating to his profile, referred to above at [19], in written submissions. He thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The more significant issue for present purposes is whether the appellant also "gave" the information that he had not made the relevant claims at the time at which he originally applied for a protection visa. In my view he did give this information to the Tribunal. It is implicit in the declaration which he made on 14 December 2005 which is quoted above at [19], when he says, immediately before the reference to his profile as "the Indian leader" that this was information which he wished "to add by way of clarification." The omission was expressly acknowledged on a number of occasions during his interview with the Tribunal. In his oral evidence the appellant told the Tribunal about the events in September 1987 in which he said he was identified as "the Indian leader". The Tribunal member raised the question of whether this claim had earlier been made. The appellant's legal representative drew attention to the passage in the appellant's statutory declaration of 14 December 2005 which is quoted above at [19]. The following exchange then ensued: "MS TSIAKAS: It's in your recent document. I know that, but it wasn't in your original document that people were gathering at your house and they were calling you an Indian and gathering at the Indian's house, and I am wondering why. INTERPRETER: That's right. I didn't have that open to me. I didn't have the time for the situation that allowed me to do so. That's why I had to change solicitor. MS TSIAKAS: Why didn't you have the opportunity? This is very important evidence for you to have provided at the time. INTERPRETER: At the time, the person who was writing all this Mr Roberts didn't write properly. The three brothers the three of us were there. We were doing everything hurriedly until I got to see Mr Manne (in distinct) I've already made the information to you. The Tribunal was thus advised that the appellant's claimed profile as an Indian leader had not been advanced at the time at which he made his original application. 25 The appellant "gave" the Tribunal the information relating to his claimed profile as an Indian leader and the information that he had not referred to this claim in his earlier dealings with the department. This omission was one of the reasons advanced by the Tribunal for rejecting the appellant's evidence that he was known as an Indian leader and that demonstrators had gathered at his house. The Federal Magistrate was, therefore, in my opinion, correct to hold that s 424A did not apply because the relevant "information" was information of the kind comprehended by s 424A(3)(b).


case_text: After the foregoing reasons had been prepared counsel for the appellant sought and obtained leave to file further written submissions because of the publication of reasons in two other cases. The reasons had been published after I had reserved judgment in the present proceeding. The two cases were the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 and that of Kenny J in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826. Written submissions in reply were also filed by counsel for the Minister pursuant to leave. 27 In SZEOP the central issue was whether the Tribunal had satisfied its obligations under s 424A(1) of the Act . The Tribunal had determined that the appellant's delay in making a claim for a protection visa once he had arrived in Australia was a reason for concluding that he had fabricated a claim to being homosexual. The Tribunal had sent a letter to the appellant under s 424A(1) in which it invited comment on the proposition that: "Your delay in applying for Australia's protection is relevant because it casts doubt on the genuineness, or at least the depth, for your claimed fear of being persecuted if you return to Bangladesh." Rares J held that this invitation was insufficiently precise: it "did not include any suggestion that the appellant's claim to be a homosexual would be positively disbelieved as a fabrication because he had delayed in making his protection visa application": at [35]. There is nothing in his Honour's reasons which causes me to depart from my conclusion that the Tribunal, in the present case, failed to meet its obligations to the appellant under s 424A(1). Indeed, his Honour's reemphasis of the need for sufficient specificity in s 424A letters in entirely consistent with the views which I have expressed.


case_outcome: distinguished

case_text: After the foregoing reasons had been prepared counsel for the appellant sought and obtained leave to file further written submissions because of the publication of reasons in two other cases. The reasons had been published after I had reserved judgment in the present proceeding. The two cases were the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 and that of Kenny J in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826. Written submissions in reply were also filed by counsel for the Minister pursuant to leave. 28 One of the issues in MZXFQ related to the application of s 424A(3)(b) in circumstances in which the appellant had given oral evidence before the Tribunal in which he confirmed, at the invitation of the Tribunal, that his previous written statements were accurate. He had also lodged with the Tribunal a statutory declaration in which he made reference to his initial statement in support of his protection visa application. The Minister argued that, in these ways, the appellant had republished to the Tribunal information which had been made in his initial statement. Her Honour rejected this submission. She said, at [47]: "The Tribunal purported to rely on information in the initial statement in assessing the appellant's credibility although the appellant did not invite reference to his initial statement in the course of the Tribunal hearing. I would reject the contention that the appellant "gave" the whole of his initial statement to the Tribunal, when, in answer to the Tribunal's question, he confirmed with the Tribunal that he did not wish to amend it or his 2005 statutory declaration. ... I would also reject the contention that, because of the terms of his 2005 statutory declaration, he "gave" the information in his initial statement to the Tribunal for the purposes of its review. His affirmation that, whilst his initial statement was "correct and true" he sought to provide the Tribunal with "extra details" in the 2005 statutory declaration did two things. It affirmed that his claims had not altered over time and that there were more particulars he could give in relation to them. In and of itself this did not republish the initial statement to the Tribunal. There is, moreover, nothing else in the 2005 statutory declaration or in the circumstances of the case that would give rise to the implication that the initial statement had been republished to the Tribunal. On the contrary, the terms of the 2005 statutory declaration indicate that it was intended to take the place of the initial statement as a fuller embodiment of the applicant's claims than the initial statement. Despite reference to the initial statement, the statutory declaration plainly stood by itself. It did not require the reader to refer to the earlier document in order to understand its contents." 29 Unlike MZXFQ the present case concerns a situation in which the appellant failed to raise a claim in his initial statement which he subsequently advanced before the Tribunal. There is no doubt, in my opinion, for the reasons which I have given in para [24] above that the appellant "gave" the Tribunal the information that he had not previously made the relevant claim. This case did not involve an alleged republication of the whole of the appellant's initial statement. Moreover it did not involve a mere assertion that what had been said in the initial statement was true and correct. The Tribunal was told that the claim had not been made in the initial statement and given the reasons why that was so. Accordingly, in my opinion, the decision of her Honour does not assist the appellant in this case. 30 The appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 15 June 2007 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Clothier Anderson & Associates Counsel for the Respondent: Mr J Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 April 2007 (Written submissions received 4 & 7 June 2007) Date of Judgment: 15 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/663.html


case_title: Mitchell v Bailey (No 2) [2008] FCA 692

case_text: 2 July 2008 I handed down judgment in Mitchell v Bailey (No 2) [2008] FCA 692. Having considered a petition which had been filed in the High Court and referred for trial in this Court I concluded that the Australian Electoral Officer ("AEO") for Victoria had erred in ruling that nine ballot-papers, cast in the election for a Member of the House of Representatives for the Division of McEwen, held on 24 November 2007, were formal. I found that a further 142 votes, which the AEO had determined were informal were formal and should have been counted. As a result of these decisions I determined that the first respondent had been certified correctly as the candidate who had been elected for the Division. She had been so elected by a margin of 27 votes after the preferences of other candidates had been distributed. The parties sought an opportunity to consider my reasons before making submissions as to what orders should be made by the Court. The parties agreed on the orders which they wished the Court to make. Pursuant to O 35 rule 10 of the Federal Court Rules , they submitted minutes of consent orders on 4 July 2008. The agreed orders were: "1. The petition is dismissed. The Commonwealth pay the Petitioner his costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis. The Commonwealth pay the First Respondent her costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis." Written submissions were filed by all parties supporting the making of these orders. At no stage was the Commonwealth a party to the proceeding. The second respondent expressly disavowed any right to speak on behalf of the Commonwealth in relation to costs issues. For this reason I listed the matter for hearing on the question of whether a costs order could be made against the Commonwealth without the Commonwealth being afforded the opportunity to be heard. At the hearing senior counsel for the second respondent advised the Court that an appropriate officer within the Department of Finance and Deregulation had been advised of the proposed orders and would write to the Court advising that the Commonwealth did not oppose the making of such orders. By letter dated 7 July 2008 Mr Marc Mowbray-d'Arbela, the Assistant Secretary, Legislative Review Branch, Financial Management Group of the Department of Finance and Deregulation advised the Court that he was authorised "to convey the position of the Commonwealth in relation to costs." That position was that the Commonwealth did not object to the Court making the orders which were sought.


case_text: Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 at 142, Brennan J said that the discretion to make a costs order against the Commonwealth under s 360(4): "... may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order."


case_text: and Toohey JJ, in a passage which was subsequently said by Gaudron J, in Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 633, to be cast in "wider" terms, said (at 143) that: "This power to order costs against the Commonwealth, which is unlikely in the ordinary case to be a party to proceedings before the Court of Disputed Returns, is not constricted by reference to the principles controlling the making of an order for costs inter partes. It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition beyond saying that it should be exercised when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition." In my view it is appropriate that the orders sought by the parties in relation to costs should be made. The proceeding raised issues which were novel and which it was in the public interest to resolve. The Court found that a significant number of inadvertent errors had been made during the scrutiny of reserved ballot-papers. The petitioner had been prejudiced by an even greater number of errors than had been alleged in the petition. These errors would have affected the outcome of the election had it not been that an even greater number of errors were made which prejudiced the successful candidate. The fact that these errors had occurred and required correction by the Court is probably a sufficient reason, standing alone, to make the orders sought. There were, however, a series of novel issues which it was necessary to resolve in the course of the proceeding. Those issues included: Whether the parties, or their legal advisors, could be provided with access to the reserved ballot-papers consistently with the provisions of s 360(1)(iii) of the Act and, if so, on what conditions. Whether the Act imposed any statutory obligations on an Australian Electoral Officer which, if not complied with, could give rise to a contravention of the Act. What processes should be adopted by the Court in order to deal with a petition which alleged that errors had been made by an Australian Electoral Officer in determining the formality of reserved ballot-papers. Whether the Court should engage in merits review or judicial review of decisions made by an Australian Electoral Officer under s 281 of the Act. It was, in my opinion, necessary and desirable, in the public interest, that these issues should be resolved.


case_text: I was referred by the respondent to the judgment of Finkelstein J in Maher v Commonwealth Bank of Australia [2004] FCA 248. The facts in that case bear a remarkable similarity to those in the present case. It was another case in which Mr Maher made an application to adjourn a trial saying that he was suffering from physical disabilities which prevented him from sitting or standing for any length of time and that he would be unable effectively to present his case without the assistance of counsel. His Honour had declined to grant the adjournment sought. These events occurred on 30 January 2004. 13 On 2 February 2004 Mr Maher sent a facsimile transmission to his Honour's associate asserting that he needed an indulgence to delay the matter and that he had notified the respondents by facsimile transmission. The case was called on as scheduled on 2 February 2004 and Mr Maher didn't appear. His Honour advised counsel that he would stand the matter down for a short time to determine whether Mr Maher was absent by reason of his attendance in another court. When the matter resumed his Honour was advised that Mr Maher was not to be found. At that stage Mr Maher's application was dismissed with costs. 14 Another aspect of the matter (a cross-claim) involving Mr Maher was due to be heard later that day and Mr Maher appeared. He advised Finkelstein J that he had just filed an appeal against his Honour's refusal to grant the earlier adjournment. He did not explain why he had not been in court at 11 am when the matter was called on and his Honour adjourned the hearing of the cross-claim until 4 February 2004. On that date his Honour, through his associate, received a communication from Mr Maher seeking an adjournment of that day's hearing on account of a medical problem and indicating that he would provide a medical certificate confirming this on the next day. A facsimile was sent on the same day to the registry which asked that his Honour be advised that Mr Maher would be unable to attend the hearing of the matter on account of his medical condition. 15 The case was called on as scheduled on that day and the matter proceeded in Mr Maher's absence and was adjourned part heard until the following day. On the following day there was another facsimile sent to his Honour's associate by Mr Maher again asserting an inability to attend court and seeking an indulgence for a further adjournment on account of a medical problem. There were two medical certificates attached which asserted that he was medically unfit to attend court on the previous day and there was also a certification of his unfitness to attend from the second day of the hearing, namely 5 February 2004. 16 When the matter came back on his Honour determined that the matter would proceed and it did. On the same day Mr Maher sent another facsimile letter to his Honour's associate indicating that he had been in touch with a solicitor. He sought an indulgence for a further adjournment so that he could obtain legal advice. His Honour delivered judgment in favour of the respondent. The following day Mr Maher moved to set aside the judgments and his Honour advised Mr Maher of the matters which it would be necessary for him to establish in order to have that occur. At the hearing of the application which took place later in February 2004 Mr Maher appeared and advised his Honour that he was not prepared to seek an affidavit from his medical practitioners deposing to his illness and sought only to rely on the certificates. Again that approach seems remarkably similar to the one adopted yesterday in argument before me. 17 Having regard to these matters his Honour said: "[17] With this history in mind, I am in no doubt that Mr Maher made a deliberate decision not to attend the hearing on Monday 2 February 2004 in the expectation that the case would not go on in his absence and that he would thereby obtain the adjournment he was refused on the preceding Friday. I am convinced that Mr Maher intended to take whatever steps were necessary to defer the hearing while he continued his attempts to obtain pro bono counsel. [18] Moreover, I simply do not accept Mr Maher's claim that he was physically unable to attend the hearing on 4 or 5 February 2004. The medical certificates are unconvincing. And, I suspect that Mr Maher did not obtain an affidavit from his doctor, or secure his attendance by subpoena, because the doctor's evidence would not have assisted his cause. [19] Mr Maher's cavalier attitude is inexcusable. There is no reason why a person who is hell-bent on delaying a proceeding in this way should be indulged. I suspect that if a new trial is ordered and Mr Maher still does not have counsel to assist him, he will renew his efforts to have the trial delayed. Tempted as I am to simply dismiss his motion out of hand, I accept that the more important consideration is to determine whether his own claim or his defence or the bank's claim has any merit. If either has merit then it is best left to go to trial. Mr Maher can be suitably punished by an appropriate order in relation to costs, although even that may not put an end to his humbug." 18 Those comments are apposite having regard to the facts of this case. I do not accept that the applicant was prevented by ill health from attending the court at 10.15 am on 3 April 2008. Despite the medical certification given the next day that he was unfit to work he advised that he could attend court at 2.15 pm on 3 April 2008. He had failed to give adequate instructions to solicitors even though he was well aware that Goldberg J had said on the previous Friday that the matter would proceed on 3 April 2008. This was another calculated attempt at delay. 19 What is to be done? Very reluctantly I have come to the view that the applicant should have the opportunity to present such arguments as he is able in support of his three notices of motion. He should not however be able to do so unless and until he has paid the respondent's costs which were thrown away by reason of the late application for an adjournment of the hearing on 28 March 2008 and his failure to appear on 3 April 2008. In this context I have regard to the matters referred to by Sundberg J in his reasons for ordering that security be provided for the respondent's costs of the appeal from the federal magistrate. (See at paragraphs 12 to 17 of Sundberg Js reasons.) 20 I have read Sundberg J's reasons. In my view the applicant's prospects of succeeding in obtaining any of the orders sought in his three notices of motion are slight. The respondent claims $13,111 by way of costs thrown away. This amount will, in all probability, tax out at a lesser sum. I therefore propose to order that the setting aside of my orders be made conditional on the applicant paying the respondent $8000 towards its costs. In the circumstances the orders which will be made are: 1 On condition that, by 4 pm on 20 May 2008, the applicant pays to the respondent $8,000 in respect of its costs thrown away by reason of the adjournment sought and granted on 28 March 2008 and by reason of the applicant's failure to appear on 3 April 2008, the orders made herein by Tracey J on 3 April 2008 be set aside. 2 The applicant's notice of motion dated 10 April 2008 otherwise be dismissed. 3 If, by operation of order, 1 the orders made on 3 April 2008 are set aside, the applicant pay the respondent its costs thrown away on the adjournment and incurred by reason of the applicant's failure to appear less any costs paid pursuant to order 1. 4 If, by operation of order 1, the orders made on 3 April 2008 are set aside, the hearing of the applicant's notices of motion dated 13, 14 and 19 March 2008 be fixed for 16 June 2008. 5 The applicant pay the respondent's taxed costs of the motion. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 2 May 2008 Counsel for the Applicant: Mr R Cook Solicitor for the Applicant Mr D Nelson Counsel for the Respondent: Mr R Shepherd Solicitor for the Respondent: A J Mullumby Date of Hearing: 23 April 2008 Date of Judgment: 23 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/584.html


case_text: Jarbin Pty Ltd v Clutha Ltd (in liq) (2004) 208 ALR 242, Campbell J concluded at [68] that s 564 operates as an exception to the prima facie equality of treatment of "all unsecured creditors within the respective classes which s 556 recognises". Barrett J in Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 accepted at [8] that as a matter of power the Court may under s 564 make an order that causes a creditor chosen for preferred treatment to rank ahead of "any one or more of the creditors having claims within the s 556(1) categories". That construction was said to follow firstly because s 556(1) is subject to Division 6 and thus subject to the power conferred on the Court by s 564 and secondly, because s 564 provides that a preferred creditor may be given an advantage " over others in consideration of the risk assumed". At [9], Barrett J said this: Section 564 contemplates that assisting or indemnifying creditors within its purview may be given "an advantage over others". The section does not say "all others" or "some others" or "any others". In referring to "others" generally, it contemplates, in my view, that the court may, by its order, give the assisting or indemnifying creditors "an advantage over" any one or more of the other creditors or all of them, with the result that the court may, as a matter of jurisdiction, cause the debts of the creditors in question to be placed on any of the rungs of the ladder of priority created by s 556(1) (and, within a particular rung, above, below or beside the creditors with claims that s 559 causes to rank equally inter se), above the topmost of those rungs or below the bottom rung (yet ahead of "all other unsecured debts and claims"). In short, s 564 is cast in terms giving the court a complete discretion regarding positioning of the whole or any part of the debts of the assisting or indemnifying creditors on the scale of priorities in the winding up and the opening words of s 556(1) cause any such positioning ordered by the court to have effect despite what would otherwise be the order of priority under s 556(1). Clearly, the exercise of the discretion under s 564 of the Corporations Act in such a way as to prefer an indemnifying creditor to that of the liquidator in payment of his claim for the expenses properly incurred in preserving, realising or getting in property of the company, would be very unusual. In Jarbin Pty Ltd v Clutha Ltd (in liq) (supra) an order was made for distribution of the settlement sum on the assumption that allowance would be made for the payment of recovery expenses of the liquidator and his advisers. The authorities do not reveal any examples of an advantage being conferred upon an indemnifying creditor in priority to the costs of recovery of the property. In the present circumstances, there are two factors which seem to me to be particularly important in weighing all the factors. First, the settlement sum was not brought about simply by reason of the provision of the indemnity. Plainly, the indemnity was catalytic. However, there is no doubt that the continuing recovery action by the liquidator and the solicitors for the liquidator during the second half of 2007 and 2008 completed the chemistry of that reaction, brought the negotiations to a head and resulted in a settlement agreement. No criticism can properly be levied against the Deputy Commissioner for failing to join in that settlement even though such a step might have been productive of an additional $15,000.00 elevating the settlement sum to $100,000.00. The Deputy Commissioner is charged with the important responsibility of protecting the taxation revenue of the Commonwealth by enforcing the taxation laws and properly exercising administrative discretions conferred upon him or her. The price the Deputy Commissioner was being asked to pay in joining in the settlement was the granting of a release and discharge of the relevant taxpayers. Plainly, that release would have been inappropriate simply as an exercise in facilitating a settlement of the liquidator's claims. The material shows that the proposed release was not based on any assessment by the Deputy Commissioner of the liability of the taxpayers in connection with their performance or otherwise of taxation obligations. The second factor is the apparent acceptance by the liquidator that the Deputy Commissioner would be entitled, in principle, to payment from the recovered monies of the amount of the indemnity. That "in principle" position may not have been informed by the possibility that the value of the recovered property or monies obtained in settlement would not exceed the costs of recovery steps or proceedings. Perhaps the liquidator assumed or alternatively the parties assumed that the present question brought before the Court would not arise in the way that it has. However, the liquidator's correspondence and the Indemnity Agreement seem to suggest that the indemnifying creditor was to be afforded priority in the recoupment of the indemnity from an amount recovered. Section 564 of the Corporations Act confers power to make such order as the Court deems just. Although an order conferring an advantage on the Deputy Commissioner to that of the liquidator in payment of recovery costs and expenses is unusual, it seems to me that the contribution of the three principal participants who have suffered a loss as a result of those contributions - in the case of the Deputy Commissioner, the provision of the indemnity in the amount of $30,000.00 and in the case of the liquidator and his advisers, the steps or activities undertaken by them in pursuing recovery action to a settlement conclusion ought, in principle, to be borne rateably.


case_text: Jarbin Pty Ltd v Clutha Ltd (in liq) (2004) 208 ALR 242, Campbell J concluded at [68] that s 564 operates as an exception to the prima facie equality of treatment of "all unsecured creditors within the respective classes which s 556 recognises". Barrett J in Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 accepted at [8] that as a matter of power the Court may under s 564 make an order that causes a creditor chosen for preferred treatment to rank ahead of "any one or more of the creditors having claims within the s 556(1) categories". That construction was said to follow firstly because s 556(1) is subject to Division 6 and thus subject to the power conferred on the Court by s 564 and secondly, because s 564 provides that a preferred creditor may be given an advantage " over others in consideration of the risk assumed". At [9], Barrett J said this: Section 564 contemplates that assisting or indemnifying creditors within its purview may be given "an advantage over others". The section does not say "all others" or "some others" or "any others". In referring to "others" generally, it contemplates, in my view, that the court may, by its order, give the assisting or indemnifying creditors "an advantage over" any one or more of the other creditors or all of them, with the result that the court may, as a matter of jurisdiction, cause the debts of the creditors in question to be placed on any of the rungs of the ladder of priority created by s 556(1) (and, within a particular rung, above, below or beside the creditors with claims that s 559 causes to rank equally inter se), above the topmost of those rungs or below the bottom rung (yet ahead of "all other unsecured debts and claims"). In short, s 564 is cast in terms giving the court a complete discretion regarding positioning of the whole or any part of the debts of the assisting or indemnifying creditors on the scale of priorities in the winding up and the opening words of s 556(1) cause any such positioning ordered by the court to have effect despite what would otherwise be the order of priority under s 556(1). It is clear from the liquidator's letter of 2 June 2006 and cl 9 of the Indemnity Agreement of 6 February 2007 that the indemnity was to be provided by the Deputy Commissioner on the footing that where an amount was recovered or received by the liquidator arising out of the processes sought to be undertaken through the use of the indemnity, the liquidator would apply to the Court for an order that the indemnifying creditor would receive priority for the amount of the indemnity. That position was also an element of the proposal in relation to the further indemnity. Having regard to the expectations reflected in the liquidator's letter of 2 June 2006, it seems that the parties proceeded on the basis that property (an amount) recovered by reason of the various processes would significantly exceed the costs of recovery and would thus be productive of a fund of money from which distributions would be made in part reduction of the Deputy Commissioner's debt, after redemption of the indemnity amount. Part reduction of the debts of the trade creditors of $27,071.34 in the aggregate, may have been unlikely. In any event, redemption of the amount of the indemnity was to be a priority. The debt to the Deputy Commissioner was revised on 5 June 2007 to $128,927.61. In the result, the settlement funds fall well short of meeting the costs and expenses of recovery. The authorities ( Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (supra); Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294; State Bank of New South Wales v Brown (2001) 38 ACSR 715) demonstrate that in exercising the discretion consideration needs to be given to the risk run by the indemnifying creditor in providing the indemnity; the value of the property recovered or the sum recovered; the failure of other creditors to participate in providing an indemnity; the proportions between the debt due to the indemnifying creditor and other debts; the public interest in encouraging creditors to provide indemnities so as to enable a liquidator to pursue remedies which would result in recovery of the property of the company; and all other relevant circumstances.


case_text: view of the scope of the power conferred on the Court by s 564 and the relationship between s 564 and s 556(1) was adopted by Austin J in Australian Steel Company v EPS Group [2006] NSWSC 1080; (2007) 59 ACSR 602 although his Honour thought that the discretion was not correctly described as a "complete discretion" or a "totally open discretion" but rather a power to make such orders as the Court deems just. Nevertheless, the discretion is conferred in broad terms. As to the question of power, the liquidator contends that he is not a creditor in respect of a claim for the payment of the costs and expenses of recovering property of the company for the purposes of s 556(1) and therefore his claim to those costs and expenses cannot be deferred to that of the indemnifying creditor as an exercise of power to adjust claims within s 556(1). Secondly, the liquidator as a person with a claim for payment of recovery costs and expenses is not a person contemplated by the phrase in s 564 "an advantage over others". The liquidator is not, it is said, an "other" person. Accordingly, there is no power to confer an advantage on the Deputy Commissioner over the liquidator in relation to the liquidator's claim to receive the settlement monies in satisfaction of the costs and expenses incurred in recovering the property of the company. Section 556(1) , subject to Division 6, attributes priority of payment to particular classes of debts and claims, as compared with all other unsecured debts and claims. The first such debt or claim is expenses properly incurred by the liquidator in preserving, realising or getting in the property of the company. Section 556(1) treats those expenses as a claim of the liquidator upon the estate or property of the company. Such a claim ranks above all other claims primarily because those expenses in the ordinary course represent the price paid to secure the company's assets or realise or get in the property of the company for the benefit of those entitled to participate in the distribution of that property according to the provisions of the Corporations Act . The paramouncy of those expenses conveys a clear statutory intention that the liquidator is entitled to recoup out of the property of the company, the costs and expenses "properly" incurred in taking the relevant steps that meet the statutory description in s 556(1)(a). However, that claim nevertheless remains a claim within s 556(1) and is subject to a power in the Court conferred by s 564 to adjust the order of priority including the paramouncy of such a claim, as appears just in all the circumstances, as between an indemnifying creditor and others. In that sense, the reference to others must be taken to be a reference to any other person (or entity) that has a debt or claim to be paid in the winding up of a company whatever the priority of that debt or claim may be according to the proper operation of the relevant provisions of the Corporations Act .


case_text: is clear from the liquidator's letter of 2 June 2006 and cl 9 of the Indemnity Agreement of 6 February 2007 that the indemnity was to be provided by the Deputy Commissioner on the footing that where an amount was recovered or received by the liquidator arising out of the processes sought to be undertaken through the use of the indemnity, the liquidator would apply to the Court for an order that the indemnifying creditor would receive priority for the amount of the indemnity. That position was also an element of the proposal in relation to the further indemnity. Having regard to the expectations reflected in the liquidator's letter of 2 June 2006, it seems that the parties proceeded on the basis that property (an amount) recovered by reason of the various processes would significantly exceed the costs of recovery and would thus be productive of a fund of money from which distributions would be made in part reduction of the Deputy Commissioner's debt, after redemption of the indemnity amount. Part reduction of the debts of the trade creditors of $27,071.34 in the aggregate, may have been unlikely. In any event, redemption of the amount of the indemnity was to be a priority. The debt to the Deputy Commissioner was revised on 5 June 2007 to $128,927.61. In the result, the settlement funds fall well short of meeting the costs and expenses of recovery. The authorities ( Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (supra); Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294; State Bank of New South Wales v Brown (2001) 38 ACSR 715) demonstrate that in exercising the discretion consideration needs to be given to the risk run by the indemnifying creditor in providing the indemnity; the value of the property recovered or the sum recovered; the failure of other creditors to participate in providing an indemnity; the proportions between the debt due to the indemnifying creditor and other debts; the public interest in encouraging creditors to provide indemnities so as to enable a liquidator to pursue remedies which would result in recovery of the property of the company; and all other relevant circumstances.


case_title: State Bank of New South Wales v Brown (2001) 38 ACSR 715)


case_text: Since the delay in filing the application is short and the applicant was not assisted by a lawyer before the Federal Magistrates Court, the failure to file the application within the time limited by the Rules is sufficiently explained. The real questions are whether the judgment of the Federal Magistrates Court is attended with sufficient doubt so as to warrant reconsideration by an Appeal Court and whether substantial injustice would result if leave were refused ( Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 655 ; (1991) 33 FCR 397 ; Herald & Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 440 [19] ; and MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665). In a case where the question of substantial injustice is to be assessed in the context of contended error by the primary court in addressing whether the Tribunal engaged in jurisdictional error in relation to a claim of well-founded fear of persecution for a Convention reason (1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees: see ss 65(1) and 36 (2)(a) of the Act ), error on the part of the primary court on the issue of the Tribunal's jurisdiction is likely to give rise to injustice which satisfies the test. Although the two issues are separate, they are necessarily related and must be carefully balanced. The gravity of the consequences of error in the case of a refugee claim may prove to be very significant. The primary question in this application is whether the judgment of the Federal Magistrates Court that the applicant's application for a show cause order was to be dismissed as disclosing no arguable case for the relief claimed, is attended with sufficient doubt so as to warrant consideration by this Court in the exercise of its appellate jurisdiction.


case_title: Herald & Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435


case_title: MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665


case_text: Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". 32 The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; 1964 112 CLR 125 at 130


case_text: In my opinion, s 31A applies to the present strikeout application. The provision is of a procedural rather than substantive nature. In Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 the High Court was concerned with the appellant's convictions for certain sexual offences. At the time of the alleged offences the Criminal Code (Tas) required corroboration of the evidence of the complainant but by the time of the trial that requirement had been repealed. The High Court upheld the ruling of the trial judge (Neasey J) and the Court of Criminal Appeal that the repealed provision did not apply. After citing the statement of Dixon CJ in Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 521: 'But ordinarily an amendment to the practice and procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity." 9 In the present case the language of the provision clearly directs attention to the time at which the strikeout application is made (where the party "is defending the proceeding or that part of the proceeding"). The substantive rights of Ms Duncan which came into existence in October 2005, eg her right to damages for any breach of contract, have not been affected. The present case is not in principle distinguishable from Rodway . 10 The statement of claim alleges in par 1 that Ms Duncan was responsible for the day to day management of the Service and had been its Director since appointment by the first respondent on or about 24 September 2001. It is said that at all material times Lipscombe Child Care was engaged in trade or commerce by conducting the business of a child care service. 11 Paragraph 5 alleges a contract of employment (the Contract) made on 24 September 2001 whereby Lipscombe Child Care retained the applicant as Director of the Service. In par 6 a number of terms of the Contract are pleaded, including: "(d) That in the event of a grievance, a grievance procedure set forth in a document entitled Grievance Policy would be followed. The Grievance Policy formed part of the Contract of Employment and provided, inter alia : (i) That the grievances should be, if possible, resolved informally with respect for other employees being maintained at all times; (ii) Confidentiality would be maintained at all times and formal and informal discussions with respect to the employee would be conducted in strict confidence; (iii) Disclosure information relating to the grievance would be limited to those people legitimately involved in the process, namely the Complainant and the Respondent or its Delegate: (iv) If the grievance could not be resolved on an informal level a moderator would be involved and where appropriate such moderator would be drawn from the Lipscombe Child Care Service Board of Directors: (v) At the conclusion of the formal grievance procedure, the processes and outcomes would be recorded in separate and confidential grievance files."


case_text: In my opinion, s 31A applies to the present strikeout application. The provision is of a procedural rather than substantive nature. In Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 the High Court was concerned with the appellant's convictions for certain sexual offences. At the time of the alleged offences the Criminal Code (Tas) required corroboration of the evidence of the complainant but by the time of the trial that requirement had been repealed. The High Court upheld the ruling of the trial judge (Neasey J) and the Court of Criminal Appeal that the repealed provision did not apply. After citing the statement of Dixon CJ in Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 521: 'But ordinarily an amendment to the practice and procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity."


case_text: On its face, the Grievance Procedure came into existence long after the Contract. There is before the Court a formal document headed "Contract of Employment" signed by Ms Duncan and the President of the Management Committee to which is attached a "Position Description and the Staff Policy". Included in the latter is a requirement for the Director to "Be responsible for human resources management in the Service, including staff appointments, supervision, evaluation, support and training, and OH&S." Sometimes it can be difficult to locate an offer and acceptance and, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled: Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177, Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178. However, the present case is one where there is a formal, written contract of employment, quite detailed and complete in itself, entered into at the commencement of Ms Duncan's employment. The Grievance Procedure was not part of the Contract when it was formed.


case_title: Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178


case_text: The respondents submit that the conduct alleged was not in trade or commerce. In Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 a worker was injured as a result of his foreman wrongly telling him that grates in an air-conditioning shaft were secured by bolts. He brought a s 52 claim based on misleading and deceptive conduct by the foreman, for which the employer was vicariously liable. In the view of the majority (Mason CJ, Dawson, Deane and Gaudron JJ) at 604-605, the foreman's statement was not made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee. The conduct of the foreman "consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building". 32 The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail. 34 Had this question arisen under the former strikeout standard, it would be very difficult to say this part of the case was hopeless, given the divergence of authority. However, s 31A is a clear, and different, command. I am still of the view that the application of Concrete Constructions in Martin was correct and that, accordingly, Ms Duncan has no reasonable prospect of success. Paragraphs 29, 30, 31 and 34 will be struck out.


case_text: The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.


case_title: Stoelwinder v Southern Health Care Network (2000) 177 ALR 501


case_text: In Martin v Tasmania Development and Resources (1999) 163 ALR 79, Mr Martin claimed that a letter stating that his termination was necessary on the basis of "operational requirements" was misleading and deceptive and contravened s 52. At the trial of the action I found that there were in fact "operational requirements" within the meaning of that term in the contract of employment: 163 ALR at [55]-[67]. Mr Martin succeeded on other grounds, not relevant for present purposes. However, I held that if the representations as to operational requirements were misleading and deceptive, they would not have been made in trade or commerce. In expressing disagreement with Wilcox J, I said (at [77]): "The majority in (Concrete Constructions) clearly rejected the wider construction of 'in trade or commerce', which would extend to virtually any activity of a corporation. It is true that a building company could not earn income unless it had workers who received instructions from foremen. But that was not enough to bring the alleged misrepresentation within the concept of 'trade or commerce'. Similarly, TDR could not carry out its activities of promoting Tasmanian trade and development (which activities themselves I assume for present purposes to be in trade or commerce) unless it engaged staff. Nevertheless such engagements and the necessary associated incidental negotiations, however necessary, are not in themselves of a trading or commercial nature. They are internal affairs of TDR." In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213, another final hearing, a case concerning alleged misrepresentations by an employer to employees about superannuation entitlements, I took the same view. 34 Had this question arisen under the former strikeout standard, it would be very difficult to say this part of the case was hopeless, given the divergence of authority. However, s 31A is a clear, and different, command. I am still of the view that the application of Concrete Constructions in Martin was correct and that, accordingly, Ms Duncan has no reasonable prospect of success. Paragraphs 29, 30, 31 and 34 will be struck out.