case_title: The Roy Morgan Research Centre Pty Ltd v Commr of State Revenue (Vic) (1997) 97 ATC 5070

case_text: In the course of proceedings earlier in the Victorian Court of Appeal in The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 97 ATC 5070, Winneke P, with whom J D Phillips and Kenny JJA agreed, said at 5074 as to the nature of the evidentiary approach to imputation of the liability of an employer to pay pay-roll tax as follows: 'The exercise is not, as Tadgell, JA. observed in Green v Victorian Workcover Authority [1997] 1 VR 364 at 375 "a mechanical one". Rather it is a matter of obtaining the overall picture from the accumulation of detail. Tadgell, JA described the exercise by citing, with approval, a passage from the judgment of Mummery, J. in the case of Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where his Lordship said of a determination whether a person was a servant or independent contractor: "This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another." ... .' The juridical approach there described blends constructively with those notions appearing in other authorities I have cited in the course of these reasons, each accommodating varying or different features but nevertheless attracting at least broadly the operation directly or indirectly of not dissimilarly expressed principles. 191 There remains for consideration the implications of the aspects of the conduct and functions of the respective parties undertaken in the context of what may be described as the totality of the relationship between the parties to this litigation and the working out thereof. That notion has been substantially addressed already in these reasons, but it is necessary or appropriate to conclude additionally upon the evidentiary material addressed in the context of the invocation of authority undertaken by CAO in its comprehensive treatise reproduced by way of overview of the conduct and functions of the respective parties in the segment commencing at [132] of these reasons. In so doing, I would keep in mind what was pointed out in Roy Morgan Research at 5074 ( ante ) as to '... obtaining the overall picture from the accumulation of detail' , and 'the overall effect of the detail, which is not necessarily the same as the sum total of the individual details'.


case_outcome: referred to

case_title: Stephenson v Delphi Diesel Systems Ltd [2003] ICR (Industrial Cases Reports for England and Wales) 471

case_text: The opinion of Munby J at [89] was therefore that '[i] f the obligation to remunerate the worker is imposed on the agency, there cannot be a contract of service between the worker and the end-user' , and conversely 'if, at the same time, control is vested in the end-user, then there equally cannot be a contract of service between the worker and the agency' . Those propositions were considered by his Lordship to reflect 'a consistent line of authority holding that in [such] circumstances there is no contract of employment indeed no contract at all between the worker and the end-user' . Moreover it is in line with Australian authority (for example Forstaff ) to postulate the need for there to be a contract in operation between a putative employer and a putative employee in order to establish the relationship of employer and employee. The extensive line of authority listed in [90] of his Lordship's reasons bearing upon the propositions which he enunciated include Stephenson . I would draw attention to the concluding sentence at [53] of the reasons for judgment in Stephenson , being that '[o] n any view it would, in our opinion, be unusual to describe an individual as having a contract of employment with a party who has no legal obligation to pay his wages and to whom he had no legal obligation to provide work' . Further authority in England conceivably to like effect was nevertheless cited by Munby J at [90] of his reasons.


case_outcome: applied

case_text: The applicants cited a number of authorities bearing upon the principles for determination of the existence or otherwise of an employment relationship. The first was the dicta of Wilson and Dawson JJ (of course as members of the High Court of Australia) in Stevens v Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1 ; (1986) 160 CLR 16 at 36-37, the immediate context there being an issue as to the vicarious liability in tort of a sawmiller for its independent contractors as distinct from its employees: 'The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance. Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.' In the present context however there is no issue arising as to the status of the applicants as employees per se , but rather whether each was employed at the material times by CAO as the applicants contended, rather than by MES as the labour hire agency. It may be accepted that the contractual arrangements in operation as between CAO and MES at the material times are not determinative per se of the characterisation relevantly of the relationship in place between each of the applicants on the one hand and CAO on the other, though such arrangements were not of course irrelevant. 95 It was contended by the applicants nevertheless that indicia as to whether there is an employment relationship found in the reasons for joint judgment of Wilson and Dawson JJ in Stevens at 36-37 should here apply in principle. The appeal raised the issue as to whether a principal is liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous. Unanimously the High Court held that the relationship was one of independent contractors. The principal judgment was written by Mason J (as he then was), with whom Brennan J expressed general agreement, and the fifth member of the Court (Deane J) agreed with the reasons for conclusion of Mason J. That authority related thus to vicarious liability in tort, and as I have foreshadowed, may be said therefore to be not operative at least directly on point in relation to the present cause of action. 96 Given the measure of assistance to be gained from that dicta of Wilson and Dawson JJ in Stevens for which the applicants contended, it becomes appropriate in any event for completeness to list what the applicants further contended to reflect an 'overwhelming balance of indicia... in favour of an employment relationship' between the applicants and CAO: (i) CAO exercised, and had the right to exercise, control over the applicants' work and all related matters; (ii) CAO provided and maintained the equipment used in the work; (iii) CAO allocated the applicants to crews and provided them with rosters which indicated when they were required to work; (iv) CAO had the right to dictate the place of work, hours of work and the like; (v) the work did not involve the applicants providing their own place of work or their own equipment; (vi) the work did not involve the creation of goodwill or saleable assets; (vii) the work did not involve the payment by the applicants of business expenses of any significant proportion, nor remuneration without the deduction of income tax; (viii) for all practical purposes, the right to dismiss or suspend the applicants was also exercised by CAO. Nevertheless those indicia are essentially or equally reflective of a labour hire arrangement, except perhaps for (viii) above, which factor carries per se the handicap of the somewhat uncertain notion 'for all practical purposes', and tends therefore to beg the question as to de jure purposes and implications. 134 The effect and operation of that line of authority may be outlined as follows: (i) the totality of the relationship is to be considered; thus in Stevens , the following appears in the reasons for judgment of Mason J (as he then was) at 24: 'But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.' To that dictum may be added what I have earlier cited at [26] of my reasons from the joint judgment of Wilson and Dawson JJ in Stevens ; (ii) in the most recent of the foregoing five authorities above recorded ( ACT Visiting Medical Officers) , a Full Federal Court comprising Wilcox J, myself and Stone J in a joint judgment applied the principles emerging from analogous authority for the purpose of characterising relevantly the visiting medical officers engaged by public hospital authorities to provide medical services to public patients; the Full Court observed the practical realities inherent in the circumstance that in the course of their treatment of patients undertaken at the hospitals, the visiting medical doctors 'moved seamlessly between patients in the two groups' , being both private and public patients, as an integral part of the businesses that each of those doctors individually carried on; (iii) in BHP Billiton the person at the centre of the dispute had been employed by BHP Billiton and its precursors as a locomotive driver until he was made redundant in 1999; in 2001 he applied successfully for employment with a labour hire company then supplying contract drivers to BHP Billiton; from that time to 2004, and while directly employed by the labour hire company but working at BHP Billiton, he applied for advertised direct employee position with BHP Billiton on four separate occasions but was unsuccessful each time; the Union alleged that BHP Billiton had unreasonably refused to employ him, and that he was in any event jointly in the employ of entities inclusive of BHP Billiton; declaratory relief was sought to that latter effect, as was also an order in any event that such person be employed by BHP Billiton on an award; in the course of decision-making the Industrial Appeal Court of Western Australia was required to consider the Union's case that the person concerned was an employee of BHP Billiton according to ordinary concepts; the Union submitted that the correct approach to deciding the question as to the existence or otherwise of an employment relationship was to have regard to the totality of the relationship, citing inter alia in that context Hollis and Stevens . At [114] in the reasons for judgment of Le Miere J, with whose reasons Wheeler J agreed and Pullin J at least substantially agreed, it was observed as follows: 'In Hollis v Vabu and Stevens v Brodribb Sawmilling Co Pty Ltd the High Court set out the common law principles for distinguishing between an employee and a contractor. These principles do not embody a definition of employment as such. They rely instead on a test which involves the consideration of a number of established factors or indicia, some of which are characteristic of a contract of service and others of which suggest a non-employment relationship. The task of the court which must assess the employment status of a worker is to consider the parties' relationship in light of each of these indicia and to determine, on balance, into which legal category the relationship falls. The exercise is not a mechanical one. Rather it is a matter of obtaining the overall picture from the accumulation of detail.' 138 Attention was then returned by CAO to what I have extracted above at [139] from the dictum of Mason J (as he then was) in Stevens , and additionally to what preceded the same by the way of following observations of his Honour at [24]: A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.' In the light of his Honour's observations in Stevens which I have cited both earlier and immediately above, the existence of actual control residing in the entity conducting labour hire operations may not have the same significance in a labour hire context. 139 It is also instructive to retrace the evolution of Australian authority to Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122 ; (2000) 2 VR 635 at [54] , in the context of a pay-roll tax dispute, in which Phillip JA (with whose reasons Buchanan J agreed, as did Ormiston JA whilst adding observations of his own), said as follows: 'All of this is very helpful here, for it indicates that in a case like the present where A makes an agreement with B under which A supplies to B the services of C for the performance of work and A also makes a contract with C for C to perform the work for B, it can be said readily enough, that in performing the work C not only benefits B but is also advancing the business of A, to the benefit of A. It is true that the High Court was considering a statutory definition serving to extend the concept of employment; but it seems to me to follow that a temporary, in accepting an engagement to perform work for Drake's clients, is doing the work as much for Drake as for the client....' Phillips JA referred to a number of authorities, including Stevens, and at [56] continued as follows: 'In cases like these, we are often instructed to stand well back to assess the situation, after first having regard to the detailed facts. Standing back, it seems to me that in this case the subject matter of the contract between Drake and the temporary is casual employment. Once that step is taken, the rest falls into place. Drake can be seen, in a relevant sense, to be employing the temporaries to do casual work, albeit that the contract between the temporary and Drake arises only upon the temporary accepting the offer of work through Drake. The arrangement made with Drake is for casual work: the temporary is to go to the designated work-site and perform work according to the directions of the designated employer for the day; that all flows from the contract made by the temporary with Drake. Tomorrow or next week or next month it will be a different work-site and a different temporary employer, but again that will be the consequence of the temporary accepting an offer from Drake and a contract arising between Drake and the temporary.' His Honour's conclusion on this point was relevantly at [57]: 'Accordingly, if one looks at the matter "from a distance" as it were, the conclusion that the temporaries are employees of Drake according to ordinary concepts of the common law is one which not only can be supported but is I think required: the temporaries are engaged by Drake to perform casual work and the difficulties inherent in this case arise, first, from the very nature of casual work as impermanent and, secondly, from the fact that the contract between Drake and the temporary involves the temporary's doing work for and at the direction of a third party, Drake's own client. But given the contract made by the client with Drake and the contract made by Drake with the temporary, it seems to me perfectly consistent to conclude that the temporary is the employee of Drake in the relevant sense at common law.' 141 CAO submitted that the extent of control in a labour hire context is of less significance than in the normal employment context, and my attention was further drawn to the reasons for judgment of Merkel J in Damevski at [162], where his Honour referred briefly to Mason & Cox at [24]-[29] and Drake Personnel at [55] and observed that the entitlement of an employer to direct a purported contractor is '... relevant in determining whether an employment relationship exists although it is not as important as it may once have been, particularly in a labour hiring agency context'. In such a context, the fact that the client determines the hours of work should not preclude the existence of a contract of employment between a labour hire company and the worker, CAO thus contended and in my opinion rightly. CAO submitted moreover that '[s]ignificantly, the test for whether or not a contract is one of employment is not the "organisation test", which was identified by Mason J in Stevens at 26-29 and Wilson and Dawson JJ at 35-36, and where his Honour indicated at [27]-[28] that he was '... unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services', because '[that] test does no more than shift the focus of attention to the equally difficult question of determining when a person is part of an organisation such that his wrongs may be imputed to that organisation'. Again of course as I have earlier emphasised, his Honour's consideration did occur in an immediate context of vicarious liability in tort, but nevertheless that dictum provides a measure of guidance in contexts involving issues as to the existence or otherwise of an employment relationship in an industrial setting. 143 CAO submitted additionally that the evidence did not support a conclusion other than that the ultimate legal control over each of the applicants resided with MES, and further that although CAO could forbid the applicants to enter the mine and could restrict their movement on the mine site, that situation was no different from what applied to any person present on the mine site or seeking to enter the mine site. Moreover CAO emphasised that the factor of control was only one factor to be considered in assessing the existence of an employment relationship, and was not a determinative factor; I was referred in that regard to ACT Visiting Medical Officers at [19] and [27]. As to the proposition that a person accepting superintendence or control of another person did not necessarily mean that the person became an employee, I was referred to Queensland Stations Proprietary Ltd v the Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539 at 552, Stevens at 36 and Ready Mixed Concrete (South East) Ltd v Minister Of Pensions and National Insurance (1968) 2 QB 497 at 526 (MacKenna J); that dictum in Ready Mixed Concrete at 526 included the following: 'A man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence.'


case_outcome: cited

case_text: CAO submitted that in substance and reality, the applicants entered into a contract with and were each employed by MES, and their attendance at the HVO to perform work pursuant to that contract involved no 'distinct offer of employment' by CAO, nor 'an acceptance of such employment by the applicants'. CAO referred by way of analogy to Swift Placements Pty Limited v WorkCover Authority of New South Wales (2000) 96 IR 69 at [38], where the following appears in the judgment of the Full Court of the Industrial Relations Commission of New South Wales in Court Session (Wright, Walton and Hungerford JJ): '38. Shortly stated, Mr Terkes obtained the work from the appellant and agreed to perform it on the appellant offering it to him; attendance by him at Warman's premises to commence and continue performance of the work involved no separate or distinct offer by Warman nor acceptance by Mr Terkes. It follows, in our view, that to the extent any legal relationship existed it did so between the appellant and Mr Terkes, although, of course, the nature of such relationship is another question.' 129 CAO next addressed the relevance of control to the establishment of a contractual relationship and submitted to the negative of any proposition to that effect. I was referred to Swift Placements at [31], where the following appears: 'Here, of course, Mr Terkes operated the machined owned by Mr Warman and at its premises, but, unless Warman engaged him to do work for it on certain terms then the fact it may have had a degree of control over such work would count for little other than as providing some evidence that it may have employed him.' A further exemplification of judicial discussion of the significance of control to the existence or otherwise of a contract of service in favour of a worker may be found in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 where the New South Wales Court of Appeal (Handley JA, with whose reasons Mahoney and Powell JJA agreed) withheld from finding that a binding legal relationship of employer and employee was established in relation to an injured volunteer worker at a religious camp, in circumstances, where that person's volunteer work at the camp fell within the description of '[f] amily, social and domestic arrangements' (at 310); accordingly that injured person was held not to qualify for workers compensation, as an employee the subject of a contract of employment. 187 I would therefore conclude that CAO is correct in its contention that in substance and reality, each of the applicants entered into a contractual relationship with and was employed by MES according to the general law at all material times, and that the applicants' respective attendances at the HVO to perform mining work, albeit for the benefit of CAO as a major operator in the HVO, as well as in a commercial sense for MES in the context of its business of labour hire, did not constitute or involve explicitly or implicitly any offer of employment by CAO to either of them, nor any acceptance by either of them of any offer of employment by CAO, explicitly or implicitly. The work which each of the applicants undertook in the HVO was undertaken by way of labour hire in the context of their respective employment functions undertaken contractually for MES, and thereby as employees of MES alone according to law. CAO's citation of Swift Placements in that context of labour hire precedent was appropriate. 188 Apart from an absence of evidentiary circumstances indicative explicitly or implicitly of any relationship according to law of the employment by CAO of either of the applicants at any material time, there are further factors and reasons which serve to demonstrate why the applicants' case for establishment of any employment relationship between themselves and CAO should fail. 189 There is force in the additional submissions of CAO, appearing under the heading 'Mutual assent analysis', contextually to a threshold acknowledgment of the principle that a viable contract of employment existing by mutual assent may be recognised by law in circumstances where the traditional analysis of offer and acceptance is inappropriate. For the reasons advanced however by CAO, and appearing in [126]-[128] above, I agree that the kind of circumstances in which a contract has been imputed by judicial precedent to exist in contexts yielding a conclusion of mutual assent are removed from the circumstances in evidence in the present litigation.


case_text: CAO next addressed the relevance of control to the establishment of a contractual relationship and submitted to the negative of any proposition to that effect. I was referred to Swift Placements at [31], where the following appears: 'Here, of course, Mr Terkes operated the machined owned by Mr Warman and at its premises, but, unless Warman engaged him to do work for it on certain terms then the fact it may have had a degree of control over such work would count for little other than as providing some evidence that it may have employed him.' A further exemplification of judicial discussion of the significance of control to the existence or otherwise of a contract of service in favour of a worker may be found in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 where the New South Wales Court of Appeal (Handley JA, with whose reasons Mahoney and Powell JJA agreed) withheld from finding that a binding legal relationship of employer and employee was established in relation to an injured volunteer worker at a religious camp, in circumstances, where that person's volunteer work at the camp fell within the description of '[f] amily, social and domestic arrangements' (at 310); accordingly that injured person was held not to qualify for workers compensation, as an employee the subject of a contract of employment. 159 CAO drew attention to the purported characterisation of the so-called triangular arrangement appearing at [52]-[53] of the reasons of Mummery LJ. I have already extracted earlier (at [85] in these reasons) much of what appears in [53]; in [51] his Lordship referred to the legitimacy of having regard to ' the fact, if it be the case, that a series or a number of transactions are intended to operate in combination with one another or are ingredients of a wider transaction intended as a whole'. That approach does not sit readily with the approach taken in the Australian authorities in relation to circumstances involving labour hire operators (such as in Forstaff). CAO's contentions were in summary to the effect that the analysis of Mummery LJ (and implicitly therefore also of Sedley LJ) fell 'rather short', in that the first issue normally required to be resolved in labour hire cases, such as Brook Street , is simply whether there existed a contract at all between the worker and the client of the labour hire agency, or else between the worker and the labour hire agency. I was referred to Ermogenous and Teen Ranch , both of which involved an issue as to whether the parties mutually intended to enter into a contractual relationship, the element of intention in that regard being paramount. The respective factual circumstances in those United Kingdom and Australian cases were some distance removed from the industrial context of the relationships involved in the present proceedings. 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable & Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable & Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable & Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable & Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable & Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances.


case_title: The Queen v Foster and Others; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10 ; (1952) 85 CLR 138

case_text: Generally as to the significance of the extent of direction and control of the applicants exercised by CAO, the applicants submitted that the Court was requested to look at all of the circumstances of the employment relationship, and in particular whether the label given to it reflects the reality, as well as the significance, of 'the control test' in any analysis of the employment relationship. CAO pointed however to the need to bear in mind that the contexts of the judicial observations for instance in The Queen v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10 ; (1952) 85 CLR 138 at 151 (Dixon, Fullagar and Kitto JJ) and Dalgety Farmers were not related to labour hire arrangements, contrary of course to the situation here. That different context was said to reduce the reliance that may be placed on those judicial observations. That passage relied upon by the applicants in The Queen v Foster joint judgment at 151 was as follows: 'For, if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual.' It was hence said by CAO that the circumstances in which persons are engaged to undertake work have developed materially since those general observations were made, particularly in relation to the evolution of activity of labour hire agencies. Thus in terms of control, it was further said by CAO that the relevant inquiry is not confined to the party that has exercised control, but extends to the circumstances by which control came to be exercised, including any contractual allocation of control by an employer to that other party, and any contractual undertaking by an employee to accept control from such other party. 181 Significance was further sought by the applicants to be assigned to CAO's management, and in particular as to management's alleged discipline of each of the applicants, whereof evidence was adduced by the applicants, being management and discipline seemingly indistinguishable in principle, or at least largely so, from that in force for the time being in relation to CAO's mining workers acknowledged to be in CAO's employment. I have outlined the evidentiary material relied upon by the applicants in that regard, and the asserted ascription on the part of the applicants of relevance thereto said to be a factor pointing to an employment relationship in relation to each of the applicants. It is not foreign to or inconsistent with any such operational structure, whether as here involving mining with heavy machinery, or otherwise, that CAO took the purported disciplinary action that it did in relation to the alleged worksite misconduct on the part of Mr Cumberland complained of by CAO, given especially CAO's evident perception, rightly or wrongly objectively speaking, of the physical danger thereby caused by his operation of CAO's heavy machinery. In that regard I have already acknowledged the force of CAO's submissions. I have earlier at least inferred that the applicants' purported reliance upon The Queen v Foster needs to be discounted or else rejected in contexts of labour hire circumstances such as are here involved.


case_outcome: discussed

case_text: Counsel for the applicants next drew attention to the more recent case in England of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2006] QB 510 as '[s]upport for a different approach depending on time and integration on the worksite, albeit in the context of vicarious liability', in the light of what was there postulated by Lord Justice Rix at [80] on the theme of 'practical and structural considerations' in relation to the engagement by a 'temporary employer' of a person who might still be 'recognisable as the employee of his general employer'. His Lordship expressed the following views at [80]: 'One is looking therefore for practical and structural considerations. Is the employee, in context, still recognisable as the employee of his general employer and, in addition, to be treated as though he was the employee of the temporary employer as well? Thus in the Mersey Docks situation, it is tempting to think that liability will not be shared: the employee is used, for a limited time, in his general employer's own sphere of operations, operating his general employer's crane, exercising his own discretion as a crane driver. Even if the right of control were to some extent shared, as in practice it is almost bound to be, one would hesitate to say that it is a case for dual vicarious liability. One could contrast the situation where the employee is contracted-out labour: he is selected and possibly trained by his general employer, hired out by that employer as an integral part of his business, but employed at the temporary employer's site or his customer's site, using the temporary employer's equipment, and subject to the temporary employer's directions. In such a situation, responsibility is likely to be shared. A third situation, where an employee is seconded for a substantial period of time to the temporary employer, to perform a role embedded in that employer's organisation, is likely to result in the sole responsibility of that employer.' Of course the present issue arising is not concerned with identifying where vicarious liability in tort might lie in relation to any imputed 'shared' circumstances of labour hire, as was the case in Viasystems . 94 The further submission of the applicants was that '[t]o the extent that there is any uncertainty over whether the initial arrangements in June/July 2001 put in place a contract of employment between the applicants and [CAO], the evidence as to the full time continuing and exclusive relationship between [them] by 1 July 2002 removes that uncertainty'. By that later time, so the applicants' submission continued, 'it is abundantly clear that the reality of the work circumstances', which I have sought to fully outline in these reasons, 'rendered the relationship between the Applicants and MES as being one essentially relating to "paper" matters, such as the administration of the payroll.' It was said further by the applicants that it was during that later time that the applicants 'had the real relationship' with CAO, it being said to be significant that it was CAO rather than MES which brought about a fundamental change in the applicants' contracts of employment in January 2002. That later time was said to be when the applicants at the direction of CAO 'commenced working a 12 hour shift roster rather than the 8 hour rosters they worked prior to this time'. By 'real relationship' however, the applicants' emphasis was upon circumstances continuing in substance and reality upon the basis of a hire of labour pursuant to a contractual arrangement between CAO and MES. 161 The differing approach of Munby J, as the third member of the Court of Appeal in Brook Street , adopted at [83] what CAO described as a more conventional position in terms of authority. His Lordship's starting point was that 'the mere fact that there is a contract between the worker and the agency, and another contract between the agency and the end-user, plainly does not prevent there also being a contract between the worker and the end-user. Nor, of itself, does it prevent any contract between the worker and the end-user being a contract of service'. That approach is more in line with Australian authority and also with the United Kingdom approach taken subsequently in Viasystems in relation to what was described in the concluding sentence of [80] by Rix LJ . Where Munby J's reasoning departed at least implicitly from the approach of the other members of the Court of Appeal was in his isolation at [83] of two critical elements of an employment relationship, namely 'the obligation to remunerate and the right to control' . Munby J cited authority stating that the 'mutuality of obligation and the requirement of control on the part of the potential employer [are the] irreducible minimum for the existence of a contract of employment '. His Lordship further cited authority to the effect that ' [t] he significance of mutuality [is] that it determines whether there is a contract in existence at all' , and that ' [t] he significance of control [is] that it determines whether, if there is a contract in place, it can properly be classified as a contract of service, rather than some other kind of contract' . Moreover Munby J considered at [87] that ' [t] he requirement that there be mutuality of obligation necessarily focuses attention on the obligations (if any) undertaken by the end-user ', which his Lordship described as not inclusive of any obligation 'to provide the servant with work in addition to wages' , any such latter obligation being 'not very often to be found expressed in written contracts of employment' .


case_text: In accordance with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, I join the Migration Review Tribunal as the second respondent. 6 Section 116 of the Act provides: '(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ... (b) its holder has not complied with a condition of the visa; (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.' 7 Regulation 2.43(2)(b) of the Regulations prescribes a breach of Condition 8202 as a prescribed circumstance for the purpose of s 116(3) of the Act. Condition 8202 provides as follows: '8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student the holder is enrolled in a full-time course of study or training. (3) A holder meets the requirements of this subclause if: (a) in the case of a holder whose education provider keeps attendance records the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term and semester of the course; and (b) in any case the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term or semester (whichever is shorter) of the course. (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa the holder is enrolled in a full-time course of study or training.'


case_title: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 177

case_text: I accept the submissions of the first respondent. In determining whether to withhold relief on the grounds of futility, the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 applied a test which asked whether the jurisdictional error was one 'which could possibly have deprived the appellants of a successful outcome to their application for review'. In this case, the jurisdictional error was not one which could possibly have deprived the applicant of a successful outcome to his review before the Tribunal. The evidence shows even if the attendance record is assessed by reference to the period of 7 October 2003 to 28 November 2003, which is the period referred to in the Notice of Intention to Consider Cancellation, and the period referred to in the s 20 Notice and the Certificate of Attendance, the applicant's attendance record did not meet the 80 per cent requirement. Accordingly, if the matter was remitted to the Tribunal, it could not possibly reach the necessary state of satisfaction as would permit compliance by the applicant in accordance with Condition 8202(3)(a)(ii). Further, there would be no procedural unfairness to the applicant in withholding relief on this basis because the applicant was given the opportunity to make submissions on his attendance record over the full period of the second term, and by his letter of 23 April 2004 took advantage of that opportunity. In my view, this is a case where, in the exercise of my discretion, relief should be withheld on the basis that it would be futile to send the matter back to the Tribunal. 36 The third ground relied on was that the cancellation of the decision was contrary to the principle of 'substantive fairness'. 37 This ground does not disclose a head of jurisdictional error. Counsel for the first respondent, however, treated this ground as a complaint about procedural fairness. There was, in my view, no breach of procedural fairness.


case_title: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35

case_text: The appeal in Zhou is still pending. However, the first respondent has drawn my attention to Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 ('Humayun') a decision of the Full Court which was delivered on 22 March 2006. Wilcox J (with whom Conti and Stone JJ agreed) said: 'Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by Mr McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any views about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out under Subdivision GB of Division 3 of the Migration Act (ss 137J-137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate's decision would not affect the power of the MRT to review the reported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 , 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 , 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218. Both the respondents' contentions are correct. There is nothing in this point.' 44 By reason of the Full Court in Humayun having considered and rejected the grounds underlying the Federal Magistrate's decision in Zhou , there appears to be no utility in awaiting the outcome of the Full Court appeal in Zhou . 45 I accordingly dismiss the application with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 8 May 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr P R MacLiver Solicitor for the First Respondent: Australian Government Solicitor Date of Hearings: 14 October 2005, and 15 February 2006 Date of Judgment: 8 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/522.html


case_text: I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , the High Court declared s 486A of the Migration Act invalid. Section 486A purports to impose time limits on the High Court's jurisdiction to entertain applications for review in much the same way as s 477 applies to the Federal Magistrates Court. The High Court declared s 486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s 75(v) of the Constitution . In my opinion, this decision does not bring the validity of s 477 into doubt. The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution . If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45] - [47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43] ).


case_title: Fisher v Minister for Immigration and Citizenship [2007] FCA 591


case_title: SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39


case_text: I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.


case_text: The appellants responded that, given that Mrs Lobo had attended the first Tribunal hearing, their situation is no different from one in which the Tribunal, having conducted a hearing at which the applicant was present, proceeds to make a decision based upon information adverse to an applicant, not provided by the applicant and not put to him or her by the Tribunal at any stage. Counsel for the appellants referred to observations of Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [192] that 'it is not right to see [an] applicant's appearance before the tribunal pursuant to s 425 ... as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process'. 43 The appellants also claimed that the Tribunal had breached s 359A of the Act. They rely on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41], in which Finn and Stone JJ said that, under s 424A of the Act, a provision applicable to the Refugee Review Tribunal ('RRT') which is similarly worded to s 359A, information which is integral to the reasoning process rejecting the applicant's claim, as a matter of fairness, must be disclosed to the applicant and the applicant must be told of its relevance to the review. The appellants submitted that the AIRC information fell within this category. The appellants further argued that the decision in SAAP, which also concerned s 424A, established that the duty in s 359A is strict. Therefore, unlike the procedural fairness claim, the appellants submitted that Mrs Lobo is not burdened with showing that she could have answered the material, and the issue of 'practical injustice' is irrelevant to the question of jurisdictional error. 48 I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214


case_text: The appellants also claimed that the Tribunal had breached s 359A of the Act. They rely on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41], in which Finn and Stone JJ said that, under s 424A of the Act, a provision applicable to the Refugee Review Tribunal ('RRT') which is similarly worded to s 359A, information which is integral to the reasoning process rejecting the applicant's claim, as a matter of fairness, must be disclosed to the applicant and the applicant must be told of its relevance to the review. The appellants submitted that the AIRC information fell within this category. The appellants further argued that the decision in SAAP, which also concerned s 424A, established that the duty in s 359A is strict. Therefore, unlike the procedural fairness claim, the appellants submitted that Mrs Lobo is not burdened with showing that she could have answered the material, and the issue of 'practical injustice' is irrelevant to the question of jurisdictional error. 48 I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.


case_text: The Court has discretionary power to make orders as to costs, which power is to be exercised judicially: see Federal Court of Australia Act 1976 (Cth), s 43 and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. The Court is now concerned with what are commonly known as "costs thrown away". An order for costs thrown away is not infrequently made in circumstances such as the present, where an adjournment application succeeds, and the party seeking costs maintains a readiness to proceed on the day fixed for trial but for the conduct of the other party. The costs thrown away are such costs as have been reasonably incurred that relate to work done and wasted as a result of the successful adjournment application: see Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329 at 330 and Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251 at 254. Generally, costs thrown away are costs that have been incurred once and will be incurred again for the purpose of the trial that is fixed a second time: Roger Quick and David Garnsworthy, Quick on Costs (Thomson Law Book Company, 2009) par [1.1230]. It is to be borne in mind that the likelihood or otherwise of a party being ultimately successful in the proceeding is not a relevant consideration on the question whether an order for costs thrown away should be made.


case_title: Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329


case_title: Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251


case_text: In this circumstance, the Commissioner should have his costs thrown away by reason of the adjournment of the trial, including the hearings on 5 and 18 September 2008. The next question is whether these costs should be paid on an indemnity basis. The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J; Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ; and O 62 of the Rules. It is unnecessary to outline in detail the principles governing when a departure from the usual rule is justified: see, for example, Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375 (" Boyapati (No 2 )") and the authorities therein. As the Full Court said in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs".


case_title: Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151


case_title: Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375


case_title: Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659


case_text: In Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett "), Gilmour J discussed the circumstances in which departure from the general rule in Order 62 rule 3(3) may be justified: see Barrett at [23]-[24] and the authorities there discussed and cited. It is unnecessary to repeat his Honour's discussion here. Having regard to the relevant authorities, including Barrett , I would not grant leave to tax costs forthwith in this case, at least not now. I accept that Mr Sobey has led the Commissioner to incur costs over and above what he would have incurred had Mr Sobey conducted his case diligently. The issues in this case are not complex, however, and I would not expect the trial to be especially lengthy or complex. The parties ought to be ready for a trial, at the latest, by early next year. This ought not to be a case in which the Commissioner waits unduly long to recover any costs due on taxation. 31 In the circumstances as presently disclosed, I would not order costs to be paid forthwith. 32 Accordingly, I would order that Mr Sobey pay the Commissioner's costs thrown away by reason of the trial of the proceedings being adjourned, including the hearings on 5 and 18 September 2008. I would further order that these costs be paid on an indemnity basis. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny . Associate: Dated: 17 November 2008 Counsel for the Applicant: Mr F G A Beaumont QC with Mr E J Power Solicitor for the Applicant: Charlesworth Josem Partners Pty Ltd Counsel for the Respondent: Mr G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 September 2008 Date of Judgment: 17 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1621.html


case_text: The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_title: Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396


case_text: The Minister submits that this issue was fully canvassed before the RRT. Indeed, the RRT heard from a witness called on behalf of the appellant to address this very question. Section 425 requires that an applicant be given an opportunity to give evidence and make arguments about "the issues arising in relation to the decision under review". See the discussion of s 425 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] [35] and [45] [49]. The section does not, however, require an opportunity to be given to respond to every item of particular evidence. That aspect of procedural fairness is, rather, dealt with by s 424A: see WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57] per French J.


case_title: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184


case_title: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277


case_title: WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220


case_text: the purposes of this proceeding, I will also assume that the investments in the Promissory Notes were subject to the requirements of managed investment schemes under the Corporations Law. There was considerable debate before me as to this question. In light of the view I have come to on other issues, it is unnecessary for me to come to a final view on this question. My own tentative view is that the correct contention is that the issue of the Promissory Notes did not form part of a managed investment scheme. The arguments not accepted by Simmonds J in Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241 seem to have considerable force. It seems to me that all that is involved here is the issue of promissory notes by a corporation with particular credit worthy characteristics and with a particular financing structure, which included the provision of certain securities for the lending of monies to investors. Each investor was offered and accepted a promissory note. All that was offered and acquired was the entitlement to payment of interest and repayment of capital in accordance with the promissory note, and no more or less. This is not the acquiring of rights to benefits produced by any 'scheme'. As I have said, I do not find it necessary to go further into this matter it would involve an analysis of the decision in Emu Brewery Mezzanine WASC 241, and possibly, the decisions of Finkelstein J in Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805 ; (2006) 157 FCR 229 and Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358 , and the question of the extent to which I should follow those decisions even if I considered any of them to be error. Characterisation of Representations


case_outcome: followed

case_text: is important to analyse the conduct and statements of PIR as a whole, taking into account disclaimers and other circumstances showing the true character of the conduct and statements themselves: see eg Campbell (2009) HCA 25 at [130] and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592.


case_title: Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 ; 257 ALR 610

case_text: a disclaimer was included in the PIR reports. I accept that disclaimers may not be effective to absolve a maker of a statement from liability for misleading or deceptive conduct or liability under s 53 of the TPA: see eg Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375. However, in this case there is not just the disclaimer. Contrary to the contention of Wealthcare, I do not regard the position as analogist to the attempted reliance upon the disclaimer in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd 1993 ATPR 41-249. The context of all the statements in the PIR report referred to above indicated the limited basis of the information being put forward by PIR: see Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 at [29] - [30] . It is important to analyse the conduct and statements of PIR as a whole, taking into account disclaimers and other circumstances showing the true character of the conduct and statements themselves: see eg Campbell (2009) HCA 25 at [130] and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592. In coming to the view that Mr Roberts did not rely upon the alleged misrepresentations I am mindful of the comments made by the High Court in Campbell (2009) HCA 25 at [143] . The essential question is one of causation. It may be artificial to talk in terms of reliance in determining what would have occurred if the true position were known. Nevertheless causation and reliance are related concepts (see eg Heydon , Trade Practices Law (2008) vol 2 at [11.720]). In this proceeding, I have come to the conclusion that there was no causal connection between the alleged misrepresentations and the actions of Wealthcare, because there was no reliance in fact upon the alleged misrepresentations.


case_text: may be an issue as to the whether there is an inconsistency between the cases relied upon by Wealthcare and Digi Tech (Aust) Ltd v Brand [2004] NSWCA 58 at [147] - [160] , but this does not need further consideration. As Wealthcare did not rely on the alleged representations in the PIR report, no 'indirect causation' can arise. Put another way, it cannot be said that Wealthcare's reliance on the PIR reports was 'a cause' of Dartberg's investing because there was no reliance at all by Wealthcare to find any 'indirect causation'. For the above reasons, the Court will order: The cross-claim be dismissed. The parties confer as to the appropriate order to make as to costs, and if no agreement can be reached, file and serve within 14 days any submissions as to costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 9 October 2009 Counsel for the Cross-Claimants: Mr P Cawthorn SC with Mr M Osborne Solicitor for the Cross-Claimants: Moray & Agnew Counsel for the First Cross-Respondent: Mr D Collins SC with Mr J Davis Solicitor for the First Cross-Respondent: HWL Ebsworth Date of Hearing: 18, 19, 20, 21 May, 1 June 2009 Date of Judgment: 9 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1153.html


case_text: does not matter whether the alleged misrepresentations were statements of fact, law or opinion whatever they were, it is my view that the alleged misrepresentations had the effect, or likely effect, on Wealthcare of statements taken from or based upon the Information Memoranda: see eg Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 , 148; Gardam v George Wills & Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415 , 427 (per French J) and Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666.


case_text: accept the submission of Wealthcare, that it only has to be shown that PIR's conduct or the falsity of the alleged representations was a cause of its loss: see eg I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [25] and [55] to [57]; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 , [13] and [14] per Gleeson CJ and King v Yurisich (2006) 234 ALR 425 at [90]. However, I have come to the view that the alleged misrepresentations had no impact whatsoever on Mr Roberts' approach to the investments, and he would have made the recommendation to Mr Pollard irrespective of whether the alleged misrepresentations were included in the PIR reports or not.


case_text: does not matter whether the alleged misrepresentations were statements of fact, law or opinion whatever they were, it is my view that the alleged misrepresentations had the effect, or likely effect, on Wealthcare of statements taken from or based upon the Information Memoranda: see eg Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 , 148; Gardam v George Wills & Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415 , 427 (per French J) and Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666. In coming to the view that Mr Roberts did not rely upon the alleged misrepresentations I am mindful of the comments made by the High Court in Campbell (2009) HCA 25 at [143] . The essential question is one of causation. It may be artificial to talk in terms of reliance in determining what would have occurred if the true position were known. Nevertheless causation and reliance are related concepts (see eg Heydon , Trade Practices Law (2008) vol 2 at [11.720]). In this proceeding, I have come to the conclusion that there was no causal connection between the alleged misrepresentations and the actions of Wealthcare, because there was no reliance in fact upon the alleged misrepresentations.


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


case_text: contended this would not matter, because Dartberg still suffered loss due to PIR's conduct, relying on the 'indirect causation' line of cases: see eg Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526 and McCarthy v McIntyre [1999] FCA 784. It was contended that PIR's conduct was a cause of Dartberg's loss.


case_outcome: distinguished

case_title: John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd [1993] FCA 295 ; (1993) ATPR 41 249

case_text: a disclaimer was included in the PIR reports. I accept that disclaimers may not be effective to absolve a maker of a statement from liability for misleading or deceptive conduct or liability under s 53 of the TPA: see eg Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375. However, in this case there is not just the disclaimer. Contrary to the contention of Wealthcare, I do not regard the position as analogist to the attempted reliance upon the disclaimer in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd 1993 ATPR 41-249. The context of all the statements in the PIR report referred to above indicated the limited basis of the information being put forward by PIR: see Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 at [29] - [30] .


case_title: King v Yurisich (2006) 234 ALR 425


case_title: McCarthy v McIntyre [1999] FCA 784


case_title: Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375


case_text: main claims made by the plaintiff Dartberg Pty Limited ('Dartberg') against Wealthcare related to investments made by Dartberg on the recommendation of Wealthcare in promissory notes issued by two companies Market Street Mezzanine Pty Ltd ('Market Street') and York Street Mezzanine Pty Ltd ('York Street'). Each of those companies was within the Westpoint Group of companies which collapsed. A convenient sketch of the background to the raising of monies by way of the promissory notes and the collapse of Westpoint is to be found in the judgment of Finkelstein J in Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358. The primary claim between Dartberg and Wealthcare was settled by a settlement agreement dated 23 June 2008 which provided for payment by Wealthcare of the sum of $350,000 inclusive of interest and costs to Dartberg. Wealthcare now seek damages against PIR in the amount of $350,000 plus costs incurred in defending the claim brought against Wealthcare by Dartberg. As I have said, I do not find it necessary to go further into this matter it would involve an analysis of the decision in Emu Brewery Mezzanine WASC 241, and possibly, the decisions of Finkelstein J in Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805 ; (2006) 157 FCR 229 and Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358 , and the question of the extent to which I should follow those decisions even if I considered any of them to be error. Characterisation of Representations


case_text: do not need to consider the effect of the terms of settlement and the principles in Unity Insurance Pty Ltd v Rocco Perzzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603. This question would only arise if PIR were otherwise liable to Wealthcare, and the requirements of Wealthcare in establishing its loss or damage needed to be considered.


case_text: It is well settled that the Court is vested with discretion to award security for costs, and that the power is wide, with the need to exercise the discretion judicially being the only relevant limitation ( Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3). Although O 28 r 3 Federal Court Rules refers to matters the Court may take into account when considering an application for an order for security for costs under s 56 of the Federal Court Act, it is clear that the rule is not intended to be an exhaustive statement of the factors the Court may consider, nor does the rule limit the power of the Court under s 56 ( Bell 2 FCR at 2-3).


case_text: Although the jurisdiction of the Court to order security for costs is enlivened in this case by what are reasons to believe that the applicant could not satisfy a costs order if it were unsuccessful, the decision to make the order is nonetheless at the discretion of the Court. The onus of persuading the court that an award of security for costs should be made lies on the party seeking the order: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 285, Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8).


case_title: Cherry v Read unreported, Black CJ, Sackville and Finn JJ, 21 November 1996


case_text: Two additional guidelines suggested by Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635 are: 1. Whether there are aspects of public interest which weigh in the balance against the making of an order; and 2. Whether there are any particular discretionary matters peculiar to the circumstances of the case. 24 In this case, the first question is whether the applicant is capable of meeting a costs order in favour of the respondents in the event that the respondents are successful in defending the applicant's claim in the substantive proceedings. Submissions of the respondents 25 Referring extensively to Mr Thirgood's affidavit, Mr Piggott for the applicant submitted in summary that the bases for the belief that the applicant will be unable to meet a costs order are as follows: 1. The applicant pleads in its statement of claim that it did not complete the contracts because it was unable to raise the necessary funds. 2. The applicant has a paid up capital of $1.00. 3. The applicant has granted a fixed and floating charge over all of its assets to St George Bank Ltd to secure up to $6.56 million, and a fixed charge over a motor vehicle to BMW Australia Finance Ltd to secure in excess of $43,000. 4. The applicant owns no real property in Queensland, and although it is the registered proprietor of three real properties in Western Australia each of those properties is subject to a registered mortgage and two are subject to a registered caveat. 5. Property of which the applicant is the registered proprietor in Western Australia - the Canning Road Property - is held by the applicant on trust for the Success Development & Property Group Unit Trust. The applicant entered the relevant contracts the subject of its claim as trustee for a different trust, namely the SDA Tarameo Unit Trust. 6. The applicant is yet to meet a costs order made by Siopis J on 6 February 2007. 7. In correspondence and in affidavit material filed on the notice of motion: a) The applicant has not asserted, and has made no attempt to show, that it could meet a costs order out of assets it owns beneficially. b) The applicant has not explained or identified the level of its indebtedness presently secured by each of the registered charges and mortgages identified by the respondent. c) The applicant has not explained the registered caveats over two of its real properties. 26 Submissions 1-6 were not disputed by the applicant. 27 In addition to this the respondents challenge the alleged value of property held by the applicant. As I noted earlier in this judgment, Mr Piggott objected to para 4 in Mr Hosgood's affidavit which reads as follows: "On 11 September 2007, I obtained a document from my client titled 'Executive Summary Valuation' annexed hereto and marked JOH-01. I am informed by this document that on 15 April 2007, the total aggregate market value as complete of Canning Road Development was $4,775,000." 28 The annexure JOH-01 titled "Executive Summary Valuation" appears to be a document of 14 pages in length relating to the Canning Road Development prepared by Hegney Property Valuations for the applicant. Mr Piggott directed my attention to the extensive disclaimer in cl 13 of the document which includes, inter alia , the following statements: "Neither the whole nor part of this report, nor any reference thereto may be included in any document, circular or statement without our written approval of the form and context in which it will appear. In accordance with standard practice it is stated that this report is prepared for the addressee only and no liability for damages incurred by a third party using the whole or any part thereof will be accepted. This valuation has been prepared on specific instructions from Keith Amor for the purpose of establishing current market value. The report is not relied upon by any other person of for any other purpose. We accept no liability to third parties nor do we contemplate that this report will be relied upon by third parties. We invite other parties who may come into possession of this report to seek our written consent to them relying on this report. We reserve our right to withhold consent or to review the contents of this report in the event that our consent is sought." 29 Mr Piggott further submitted that the Executive Summary Valuation did not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia. In summary, Mr Piggott submitted that in light of these issues, the probative value of the evidence as to value of the Canning Road Development was low and should not be admitted. Submissions of the applicant


case_text: If the respondents sought to enforce payment of security for costs against the applicant, the respondents would have a claim against the applicant, which presumably would then claim a right of indemnity out of the trust assets of the Success Development & Property Group Unit Trust. This assumes, of course, that the applicant's liability was properly incurred in the affairs of the trust (cf comments of McPherson J in General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388 at 390, followed by White J in Westpac Banking Corporation v Garrett [2004] SASC 265 at [27] ). As I have already discussed, it is uncertain in this case whether the liability of the applicant would be properly incurred on behalf of the Success Development & Property Group Unit Trust, such as to entitle the applicant to a right of indemnity.


case_text: In my view, on the basis of the evidence before me and the submissions of the parties, there is reason to believe that the applicant is unable to pay the costs of the respondents if they are successful in their defence. I take this view for the following reasons: • As I noted earlier, there is no dispute that the costs of the respondents are as calculated by Mr Graham. • As I also noted earlier, there is no dispute as to the reason for the failure of the applicant to complete the relevant contracts, the low paid-up capital of the applicant, the failure of the applicant to date to meet the costs order of Siopis J, the substantial securities given to financial services providers over both real and personal property of the applicant, the absence of real property in Queensland, and the fact that what seems to be the primary assets of the applicant are held by the applicant on trust for an entity which appears to have no interest in this litigation. • No evidence has been produced by the applicant as to the value of assets, if any, held by the applicant in its own right or on trust for any entity which has an interest in this litigation, including the SDA Tarameo Unit Trust. • Even assuming that the Canning Road Development would be available to satisfy an order for security for costs, at present, there is no satisfactory evidence before the Court as to the value of that property. In my view, to accept the evidence in the "Executive Summary Valuation" annexed to Mr Hosgood's affidavit would unfairly prejudice the respondents. I uphold the objection of Mr Piggott as to the admissibility of both para 4 and annexure JOH-01 of Mr Hosgood's affidavit. In particular, I note: o As a general proposition, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) Evidence Act 1995 (Cth). An exception to the rule in s 76(1) is where a person has specialised knowledge based on the person's training, study or experience, in which case evidence of an opinion of that person that is wholly or substantially based on that knowledge is admissible: s 79 Evidence Act o In this case no evidence has been produced as to whether Hegney Property Valuations, or the person at that firm who prepared the "Executive Summary Valuation", possessed specialised knowledge within the meaning of s 79 Evidence Act so as to render admissible the "Executive Summary Valuation" and its contents. o Even if the "Executive Summary Valuation" was prepared by a person with specialised knowledge within the meaning of s 79 Evidence Act , the disclaimers in the document are such that not only is it clear that the document was not prepared with a view to it being relied on by the applicant in litigation, it appears that the author of the document specifically disqualified the document from such use. The Court has a general discretion to exclude evidence under s 135 Evidence Act where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time. The fact that the "Executive Summary Valuation" is relied upon by the applicant as evidence, in circumstances where the person who prepared the report did not appear to appreciate that the document would be the subject of such use, in my view strongly militates in favour of its exclusion as evidence under s 135: cf Campbell J in United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [15] . o Finally, I note that the "Executive Summary Valuation" does not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 6 June 2007, or its predecessor the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 11 April 2007. While I note that the guidelines are not intended to address all aspects of an expert witness's duties, they are clearly intended to assist expert witnesses prepare reports which avoid the criticism that the expert lacks objectivity. In this case, it is clear that no consideration has been given by the person who prepared the document as to Guidelines, or their duty to the Court. 42 In any event, in relation to this Deed of Guarantee, I am further disinclined to exercise my discretion in favour of the applicant where this Court has previously indicated that a personal guarantee given in satisfaction for security for costs is acceptable in only exceptional circumstances: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 , cf Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (formerly Turnbull Cooktown Pty Ltd) (No 3) [2007] FCA 1078 at [30] - [31] . The applicant has demonstrated no circumstances in this case justifying the acceptance of a personal guarantee as distinct from a cash payment or a bank guarantee. Additional points


case_text: Principles which courts typically take into account in determining such applications were outlined by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 as follows: 1. That such applications should be brought promptly. 2. That regard is to be had to the strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim. 4. Whether the respondent's application for security is oppressive. 5. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security. 6. Whether persons standing behind the company have offered any personal undertaking to be liable for the costs. 7. Is the party against whom security is sought in substance a plaintiff.


case_text: In any event, in relation to this Deed of Guarantee, I am further disinclined to exercise my discretion in favour of the applicant where this Court has previously indicated that a personal guarantee given in satisfaction for security for costs is acceptable in only exceptional circumstances: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 , cf Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (formerly Turnbull Cooktown Pty Ltd) (No 3) [2007] FCA 1078 at [30] - [31] . The applicant has demonstrated no circumstances in this case justifying the acceptance of a personal guarantee as distinct from a cash payment or a bank guarantee. Additional points


case_text: In my view, on the basis of the evidence before me and the submissions of the parties, there is reason to believe that the applicant is unable to pay the costs of the respondents if they are successful in their defence. I take this view for the following reasons: • As I noted earlier, there is no dispute that the costs of the respondents are as calculated by Mr Graham. • As I also noted earlier, there is no dispute as to the reason for the failure of the applicant to complete the relevant contracts, the low paid-up capital of the applicant, the failure of the applicant to date to meet the costs order of Siopis J, the substantial securities given to financial services providers over both real and personal property of the applicant, the absence of real property in Queensland, and the fact that what seems to be the primary assets of the applicant are held by the applicant on trust for an entity which appears to have no interest in this litigation. • No evidence has been produced by the applicant as to the value of assets, if any, held by the applicant in its own right or on trust for any entity which has an interest in this litigation, including the SDA Tarameo Unit Trust. • Even assuming that the Canning Road Development would be available to satisfy an order for security for costs, at present, there is no satisfactory evidence before the Court as to the value of that property. In my view, to accept the evidence in the "Executive Summary Valuation" annexed to Mr Hosgood's affidavit would unfairly prejudice the respondents. I uphold the objection of Mr Piggott as to the admissibility of both para 4 and annexure JOH-01 of Mr Hosgood's affidavit. In particular, I note: o As a general proposition, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) Evidence Act 1995 (Cth). An exception to the rule in s 76(1) is where a person has specialised knowledge based on the person's training, study or experience, in which case evidence of an opinion of that person that is wholly or substantially based on that knowledge is admissible: s 79 Evidence Act o In this case no evidence has been produced as to whether Hegney Property Valuations, or the person at that firm who prepared the "Executive Summary Valuation", possessed specialised knowledge within the meaning of s 79 Evidence Act so as to render admissible the "Executive Summary Valuation" and its contents. o Even if the "Executive Summary Valuation" was prepared by a person with specialised knowledge within the meaning of s 79 Evidence Act , the disclaimers in the document are such that not only is it clear that the document was not prepared with a view to it being relied on by the applicant in litigation, it appears that the author of the document specifically disqualified the document from such use. The Court has a general discretion to exclude evidence under s 135 Evidence Act where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time. The fact that the "Executive Summary Valuation" is relied upon by the applicant as evidence, in circumstances where the person who prepared the report did not appear to appreciate that the document would be the subject of such use, in my view strongly militates in favour of its exclusion as evidence under s 135: cf Campbell J in United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [15] . o Finally, I note that the "Executive Summary Valuation" does not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 6 June 2007, or its predecessor the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 11 April 2007. While I note that the guidelines are not intended to address all aspects of an expert witness's duties, they are clearly intended to assist expert witnesses prepare reports which avoid the criticism that the expert lacks objectivity. In this case, it is clear that no consideration has been given by the person who prepared the document as to Guidelines, or their duty to the Court.


case_text: However in my view, even assuming that the document is a guarantee as a matter of law, in the absence of supporting evidence or authority I am not prepared to accept that cl 12.1(d) empowers the applicant to either assume an obligation or give a guarantee binding the assets of the Success Development & Property Group Unit Trust of a substantial sum as security for the costs of the applicant in its capacity as trustee for another Unit Trust in litigation in which, prima facie , the beneficiaries of the Success Development & Property Group Unit Trust have no interest. Irrespective of any commonality of trusteeship, I am not persuaded that the broad terms of the power vested in the applicant by cl 12.1(d) permit the applicant to act in potential disregard of the interests of the beneficiaries of the Success Development & Property Group Unit Trust (cf, by analogy, Walker v Wimborne [1976] HCA 7 ; (1976) 137 CLR 1). Indeed although the proposed Deed of Guarantee, annexed to the affidavit of Mr MacKinlay, contains a statement that the applicant is "entitled to be indemnified out of the trust property of the SDPG Unit Trust for any liability which (sic) incurs (sic) behalf of the trust", it contains no reference to the applicant being entitled on behalf of the Success Development & Property Group Unit Trust to enter this transaction, and be indemnified out of that property for liabilities arising out of this transaction.


case_title: Westpac Banking Corporation v Garrett [2004] SASC 265


case_outcome: considered

case_text: No claim for privilege was made in respect to those documents which merely recorded (for example) the fact of payments by the Fifth Respondent or documents which simply recorded trust account records of payments of legal fees by the Fifth Respondent or cost agreements. Such a concession was rightly made both by Counsel for the First, Second and Fourth Respondents and by Senior Counsel for the Fifth Respondent. See: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 67 8 per Tamberlin J; Cook v Pasminco Ltd (No 2) [2000] FCA 1819 at [45] [48], [2000] FCA 1819 ; 107 FCR 44 at 52 3 per Lindgren J; Allen Allen & Hemsley v Deputy Commissioner of Taxation (NSW) [1989] FCA 125 ; (1989) 20 FCR 576 at 583 4 per Bowen CJ and Fisher J.


case_text: Even though declaratory and injunctive relief has been granted already, it is not considered that an order would have been made that such costs as are to be paid should be paid forthwith. The conduct of the litigation to date has certainly not been characterised by any degree of expedition; but the hearing of the balance of the proceeding and the resolution of all outstanding issues, it is anticipated, can be accommodated at a comparatively early date: cf Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; Smart Co Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [43] per Lander J. In such circumstances it is not considered that there should be a departure from the general principle that costs should be payable when the rights of the parties -- including any liability in damages -- are finally determined.


case_title: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 , 107 FCR 44


case_text: A like comment may be made in respect to paragraphs [2], [3] and [4] of the Subpoena directed to Simpsons Solicitors. Paragraph [3] of that Subpoena employs the language of documents " that refer or relate to " a particular document -- as does paragraph [8] of the Subpoena to Jordan Djundja Lawyers. Again, properly construed, it is not considered that those paragraphs are oppressive. The use of the phrase " relating to " in a subpoena does not necessarily mean that the subpoena has been drafted too widely or is otherwise oppressive: cf Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 at 192 per Smithers J. Paragraph [3] of the Simpsons Solicitors Subpoena , when read in its entirety, is confined to the circumstances in which the Affidavit of Mr Kiriakidis of 22 April 2008 was sworn. The confined nature of the documents required to be produced in answer to paragraph [3] is not rendered oppressive by reason simply of the use of phrases such as " relating to " or " without limitation ". The use of those phrases is in a context where the person upon whom the Subpoena has been served is not required to form a view as to whether other documents " relate to " a particular subject-matter (cf Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 per Jordan CJ); the task is confined to locating those documents " relating to " a particular document. In Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929 Waddell J relevantly observed: Use of expressions such as "relating to" need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all "invoices" relating to sales of a particular item to the defendant on a particular day. The use of the word "invoices" would restrict the potential width of the expression "relating to". Similarly, in American Express Warehousing Ltd v Doe [1967] 1 Lloyd's Rep 222, the Court of Appeal held that a requirement to produce the "contract slips" and "quote slips" relating to each of a number of insurances was not objectionable. A much more complicated set of circumstances in which use of the expression "related to" was held not to be objectionable appears in the decision of the Federal Court of Australia in Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; 18 ALR 555. ...


case_text: When considering whether or not a subpoena has been issued for a legitimate forensic purpose, it is sufficient if the material sought to be subpoenaed has some " apparent relevance to the issues in the principal proceedings " that is " adjectival ": Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103 per Beaumont J. Relevance which is purely " speculative " will not suffice: Mandic v Phillis [2005] FCA 1279 at [36] , [2005] FCA 1279 ; 225 ALR 760. Conti J there noted Beaumont J's reference in Arnotts to the judgment of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 at 502 and continued: [35] Drawing on Deane and Gaudron JJ's above dicta, Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. His Honour enumerated two questions to be asked (at ALR 103 of his reasons for judgment): (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party]. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed]. [36] His Honour (at ALR 103) referred to the meaning of "apparent relevance" in the following terms: The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established. In Kimberley Homes at 115 16, Hill J referred with approval to Beaumont J's test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material, the subject of the subpoena, would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432 , Spender J also considered Beaumont J's test of "adjectival relevance" and explained it (at 439) as follows: Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. As is the case presently before the court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a "fishing expedition".


case_title: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58


case_title: Lucas Industries Ltd v Hewitt (1978) 45 FLR 174


case_title: Mandic v Phillis [2005] FCA 1279 , 225 ALR 760