case_text: Notwithstanding the circumstances in which the orders were made, on 14 July 2008 the unusual course of permitting cross-examination was again raised with Counsel for the Applicants and, more relevantly, Counsel for Mr Kiriakidis. Reference was made to the observations of Menzies J in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Counsel for Mr Kiriakidis requested, and was granted, a short adjournment to obtain further instructions in light of reference being made to the unusual course being pursued. The cross-examination thereafter continued without any submissions being advanced on his behalf. As events unfolded, it was probably the only effective means whereby the Applicants could have exposed what they believed were inadequacies in the existing discovery as provided particularly by the Fourth Respondent. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided. 51 At least two observations need to be made. 52 First, some evidence given during cross-examination was that documents had been destroyed. As explained by Mr Kiriakidis, the destruction of documents occurred by reason of either: • such records as had been kept by Mr Kiriakidis being stored in boxes in a room behind a café where he was then residing, and being thrown out when he was in Greece for a period of six months from July 2006 to January 2007. The owner of the premises was said to have thrown out the boxes when Mr Kiriakidis did not return after what was expected to be only a three month visit; and • such other records as may have been maintained being routinely destroyed by employees, upon instructions, at the conclusion of every two week period. Mr Kiriakidis explained his concern as to whether or not the business was illegal and that he did not want records being maintained in such circumstances. Whether or not there was a basis for those concerns was not an issue pursued by Counsel for the Fourth Respondent during his cross-examination. It is a matter, however, which it is expected will emerge as an issue to be resolved at the final hearing.


case_outcome: followed

case_text: A fourth matter was sought to be raised by way of a Notice of Motion filed by the Fifth Respondent on 31 July 2008 seeking to set aside part of a Notice to Produce served by the Applicants upon the Fifth Respondent. Documents pursuant to that Notice to Produce were produced on 24 July 2008. When such documents as were produced were made available, neither the Court nor the Applicants were told that there were additional documents which, it was later said, also fell within the terms of one of the Subpoenas presently sought to be set aside by the Fifth Respondent and that those documents were being withheld. A notice to produce has the same coercive effect as a subpoena: Federal Court Rules , O 33 r 12; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [4] per Sackville J. The procedure to be followed when there is a " call " upon a notice to produce has been long-settled: Glass H (ed), Seminars on Evidence (1969) at 12 18. If documents which fall within a notice are not produced, it is incumbent upon those who have been served with such a notice to unequivocally identify those documents and the reason for their non-production. 3 All other outstanding Motions in the proceeding are to be heard on 11 August 2008. The First Respondent's Notice of Motion filed 31 July 2008 can also be heard on that date. The intent in resolving all outstanding interlocutory matters as quickly as possible is self-evidently to facilitate a final hearing at the earliest possible date. This proceeding has already taken far longer to resolve than is desirable -- or necessary, given the issues in dispute. It is hoped that on 11 August 2008 dates for the final hearing can be fixed for later this year. 4 The relevant orders as to costs against the First, Second and Fourth Respondents as made on 2 April 2008 were as follows: 12. The First, Second and Fourth Respondents are to file and serve any Affidavit and submissions as to why an order for the payment of the Applicants' costs to date on an indemnity basis payable forthwith should not be made for any particular period from the commencement of this proceeding to date, by 5:00pm on 8 April 2008. 13. If the First, Second and Fourth Respondents do not file and serve an Affidavit and submissions in accordance with Order 12, the First, Second and Fourth Respondents are to pay the Applicants' costs to date on an indemnity basis with such payment to be made forthwith.


case_outcome: considered

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_text: The discretion in respect to costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) unquestionably extends to a power to order that costs be paid on an indemnity basis. In Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 , Lindgren J helpfully summarised the approach to be adopted in ordering indemnity costs as follows: [4] The question of the circumstances in which costs should be awarded on an indemnity basis has been discussed in many cases, recently in this Court by me in NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 and by Katz J in Waverley Council v Refkin Pty Ltd [2001] FCA 1469. I will not refer to the various judicial formulations to date of the grounds on which it is proper to award costs on an indemnity basis. It suffices that I acknowledge that the circumstances must be "special", must take the case out of the "ordinary" category of case, and must involve behaviour associated with the conduct of the proceeding by the person sought to be made liable which is so unreasonable as to make it unjust that the other party should be limited in its recovery to party and party costs. 11 Notwithstanding the manner in which the proceeding has been conducted to date, the four factors relied upon by the First, Second and Fourth Respondents to oppose an order for costs on an indemnity basis are: (a) the fact that those Respondents have made " significant admissions ", being admissions in respect to matters previously denied in their Defence but later admitted " consequent on service of evidence by the Applicants "; (b) the conduct of those Respondents in respect to discovery, including the fact that their very consent to the order for cross-examination of the Fourth Respondent is a tacit acknowledgment on their part that the deficiencies therein are sufficient to justify the unusual exercise of the Court's power to permit cross-examination on Affidavits filed in respect to discovery; (c) a contention that such delay as has occurred is " not all ... attributable to the Respondents "; and (d) a contention that a number of the Affidavits as filed by the Applicants " go predominately [sic] to the assessment of damages " and therefore would have been filed in any event. 12 A review of the materials as filed discloses that the First, Second and Fourth Respondents initially put in issue all aspects of the Applicants' case. They thus disputed (for example) whether the films in issue were " cinematograph film [s]" and the subsistence of copyright in those films and ownership of copyright. These matters were the subject of some admissions on 7 August 2007, but it was only on 2 April 2008 that orders for declaratory and injunctive relief were made by consent.


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: In Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 Bennett J summarised the principles to be applied when considering an application that costs be paid forthwith. Her Honour observed: [104] ... the following principles emerge: • The general principle is that costs ought to be resolved when the proceeding has been concluded and the rights of the parties have been finally determined. However, O 62 rule 3(3) contemplates that, in certain circumstances, the general principle can be varied, as a matter of the court's discretion. • The exercise of the discretion should only be exercised where the interests of justice in the particular case require a departure form the general practice. • The discretion should be exercised in favour or [sic] a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule. • One consideration is the length of time that the proceedings will conclude, in the ordinary course of events. • Where costs are sought in respect of a successful strike out application, the fact that the unsuccessful party failed to remedy defects despite clear notice of those defects, may make appropriate immediate taxation and payment. • Costs incurred by reason of an ill-considered pleading may give rise to an exception to the principle that the costs await the final resolution of the issues between the parties. • In ordinary circumstances, it would be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately, since that party might ultimately be entitled to an order for costs in the substantive proceeding. 22 The making of declaratory and injunctive orders on 2 April 2008 unquestionably brought that aspect of the claims for relief as against those Respondents to an end. Left to be resolved was a determination of damages.


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_outcome: cited

case_text: Subject to my being satisfied that Mr Pantzer does not hold surplus moneys from the administration of Dr Wenkart's estate in bankruptcy in an amount that exceeds the amount to which he is "lawfully entitled" within the meaning of order 1 of the consent orders made on 11 March 2002, I conclude that the Court should make "orders in aid" of the kind sought by the cross-claim. The parties will be given an opportunity to make submissions on the terms of the order or orders appropriate to be made and as to whether the realisation of the charge should be deferred whether to allow Dr Wenkart to pay to Mr Pantzer the amount to which he is lawfully entitled, to allow the total amount to which Mr Pantzer is legally entitled to be further clarified or for any other reason. My present view, however, is that to reduce the risk of yet further litigation between the parties, an independent person, rather than Mr Pantzer, should be appointed as trustee for the sale of the Paddington property (see Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236 at [122] ). 89 Having regard to the reasons for judgment of the Full Court on appeal from the taxation judgment at first instance, I accept that the remuneration, costs and expenses of the trustee for sale and the legal expenses of transferring the Paddington property to the purchaser should be paid from the proceeds of the sale of the property as amounts to which Mr Pantzer is "lawfully entitled" from Dr Wenkart. 90 Some additional issues were also canvassed at the hearing of this matter.


case_text: The appeals to the Full Court from the taxation judgment at first instance did succeed ( Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466). In each appeal the Full Court ordered that the appeal be allowed, the orders made by the primary judge be set aside "and in lieu thereof the appeal against the decision of the taxing officer ... be dismissed" . The Full Court additionally ordered in each appeal that Dr Wenkart pay Mr Pantzer's costs of the appeal to the Full Court and the costs of the appeal from the decision of the taxing officer. It is plain that the Full Court did not overlook the observation made by me in the taxation judgment at first instance at [27]; it is expressly referred to in the reasons for judgment of the Full Court at [27]. 9 On 24 October 2006 Dr Wenkart filed a notice of motion in the appellate jurisdiction of the Court seeking to have the orders of the Full Court in each case varied in the following ways: first, by deleting the words "and in lieu thereof the appeal against the decision of the taxing officer ... be dismissed" and replacing them with the words "and the matter otherwise be remitted to the Trial Judge for further consideration in accordance with these reasons" ; secondly, by amending the costs order so as to make clear that while Dr Wenkart was to pay Mr Pantzer's costs of the appeal to the Full Court, Mr Pantzer's costs of the appeal from the decision of the taxing officer were in the discretion of the trial judge. The filing of Dr Wenkart's notice of motion was presumably motivated, at least in part, by the fact that the orders of the Full Court did not merely allow the appeals from the taxation judgment at first instance; they dismissed the appeals from the decisions of the taxing officer notwithstanding that certain of the grounds of appeal against those decisions had not been determined either at first instance or by the Full Court.


case_title: Pantzer v Wenkart [2007] FCAFC 27

case_text: On 13 March 2007 Dr Wenkart's motion was dismissed with costs by the Full Court ( Pantzer v Wenkart [2007] FCAFC 27). The Full Court indicated in its reasons for judgment that its earlier judgment should be understood to have implicitly rejected the grounds identified in notices of contention upon which Dr Wenkart contended that the taxation judgment at first instance should be affirmed. Those grounds were: "1. The trial judge ought to have held that there was no evidence before the Court which established that the work for which the taxation was performed was work performed in relation to the administration of the estate as an additional basis to reject the Appellant's claim. 2. The trial judge ought to have held that the legal firm, Sally Nash & Co, was never retained by the Appellant in his capacity as Trustee of the Bankrupt Estate of the First Respondent as an additional basis to reject in its entirely the Appellant's claim in relation to costs and disbursements. ... 4. The trial judge ought to have held that the operation of sub-section 167(1) of the Bankruptcy Act 1966 , in the circumstances, limits a bill of costs to a bill of costs which was provided by a person in relation to the administration of the Estate was an additional basis to reject the Appellant's claim." 11 In the meantime an application made by Dr Wenkart to the High Court for special leave to appeal from the substantive judgments of the Full Court had been dismissed with costs. 12 The effect of the judgments of the Full Court is that Dr Wenkart's appeals from the two decisions of the taxing officer stand dismissed. Only this proceeding remains undetermined. The issue that I identified in the taxation judgment at first instance at [27] (see [6] above) is not now open to be determined in the context of the appeals from the decisions of the taxing officer. Having regard to my conclusions below this may be of limited, if any, practical significance.


case_text: Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 21 On the same day his Honour ordered that the above question be answered in the affirmative. I interpolate that in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 published on 29 August 2003 the Full Court, on appeal from his Honour's order, noted at [8] that Division 2 of Part VIII of the Act (comprising ss 161B-167) deals generally with the remuneration and costs which may be charged against a bankrupt's estate. Their Honours observed: "The sections operate by force of the Bankruptcy Act and not because of any agreement between the parties or order of the court. Moreover, lest there be any doubt about the matter, we wish to make it clear that these provisions have effect notwithstanding the annulment of the bankruptcy. It could hardly be supposed that a trustee's right to remuneration, the manner in which that remuneration is to be determined and the trustee's right to require a third party's bill of costs to be taxed is lost upon an annulment." 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy. 64 Mr Pantzer's entitlement to remuneration up to 15 March 2002 in the sum of $98,095.16 has been the subject of litigation in other proceedings. Importantly this claim was considered by the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204. At [15] their Honours noted that at a creditors' meeting on 15 March 2002, at which Dr Wenkart was present, a document was tendered which set out Mr Pantzer's claim for outstanding remuneration as at 15 March 2002 in the sum of $115,406.07. A resolution that his remuneration be approved in that sum was not carried and Mr Pantzer's representative said that "the Trustee would therefore claim 85% of the IPAA Guide to Hourly Rates pursuant to Section 162(4) and Reg 8.08 of the Bankruptcy Act " . The Full Court at [16] disagreed with the conclusion of the primary judge that Dr Wenkart was not thereby notified of the amount of Mr Pantzer's claim for remuneration within the meaning of reg 8.09(1) of the Bankruptcy Regulations 1996 . 65 Regulation 8.09(1) provides as follows: "Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim."


case_text: Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy.


case_title: Wenkart v Pantzer (2005) 223 ALR 384

case_text: On 8 November 2005 I published judgment on the taxation appeals ( Wenkart v Pantzer (2005) 223 ALR 384 ("the taxation judgment at first instance")). I concluded that the appeals from the decisions of the taxing officer should be allowed on the basis that the bills of costs related at least in part to costs not recoverable under the Act. In each case I ordered that the certificate of taxation be set aside and the bill of costs the subject of the certificate be remitted to the taxing officer for taxation in accordance with the reasons for judgment of the Court. 6 In the taxation judgment at first instance at [22]-[27] I identified the issues raised by the taxation appeals. At [27] I observed: "Further, an issue is raised by the applications of whether, by reason of matters pleaded in matter NSD 7051 of 2002, [ie in this proceeding] upon a true and proper accounting neither Mr Pantzer, nor any person who provided services to him in relation to the bankrupt estate of Dr Wenkart, has any present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate. There is considerable overlap between the issues raised for consideration in these proceedings and the issues raised for determination in matter NSD 7051 of 2002. I have been obliged to reach a concluded view on some of those issues for the purpose of determining these proceedings. However, I am inclined to think that the remaining issues should be determined in the context of that matter. The parties will have an opportunity to place submissions before the Court on this question before final orders are made in these proceedings." 7 After considering the submissions of the parties on the question, I decided that the remaining issues should be determined in the context of this proceeding and after the hearing and determination of any appeals from the taxation judgment at first instance. That decision was reached in the light of my conclusion that the certificates of taxation the subject of the taxation appeals should be set aside for reasons unrelated to the remaining issues. The parties were subsequently advised that judgment in this proceeding would not be delivered until after the hearing and determination of the appeals instituted in respect of the taxation judgment at first instance because of the importance in this proceeding of the issues raised in those appeals. It seemed to me that, were the Full Court to allow the appeal from the taxation judgment at first instance and remit the appeal to me to be redetermined in the light of the reasons for judgment of the Full Court, it would be desirable for that redetermination to occur concurrently with the determination of this proceeding.


case_text: In Wenkart v Pantzer (No 3) [2004] FCA 280 ; (2004) 135 FCR 422, being the name under which Wenkart v Pantzer (No 8) [2004] FCA 280 was reported, ( Wenkart v Pantzer (No 3) ) at [9]-[18] Lindgren J identified some of the litigation spawned by Dr Wenkart's bankruptcy, including the early history of this proceeding which concerns various disputes between Dr Wenkart and Mr Pantzer concerning Mr Pantzer's entitlements to remuneration, costs, charges and expenses. It will be necessary to refer below to some of the early history of this proceeding in more detail. However, I do not consider it necessary to set out the entire history of the matter. 3 Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 14 The circumstances in which the present proceeding was initiated were identified by Lindgren J in Wenkart v Pantzer (No 3) particularly at [18]-[19] and at [47]-[50]. As his Honour observed, the controversy in respect of which this proceeding was commenced concerned the amount of remuneration to which Mr Pantzer was entitled; whether he was obliged to call a meeting of creditors to consider a proposal under s 73 of the Act formulated by Dr Wenkart; and, if so, how, if at all, his entitlement to remuneration could or should be protected. The procedural steps taken were that on 15 February 2002 Dr Wenkart sent a letter and a number of attachments directly to the chambers of Beaumont J. The letter requested his Honour to order Mr Pantzer to convene a meeting of Dr Wenkart's creditors. His Honour directed that a new file be opened and, it seems, treated the documents received from Dr Wenkart as an initiating process. I interpolate that on 31 March 2004 Lindgren J directed that Dr Wenkart's letter and attachments be taken to be the application by which this proceeding was commenced, that it be taken to have been filed on 21 February 2002 and that, to the extent necessary, compliance with the Federal Court Rules be taken to have been dispensed with. 15 It is necessary to refer to a number of interlocutory orders made in this proceeding. Anticipating the creditors' possible acceptance of Dr Wenkart's proposal, Beaumont J on 11 March 2002 made the following orders by consent: "1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree. 2. Thomas Richard Wenkart forthwith charges the land and improvements in folio identifier G/33817 and known as 47 Union Street, Paddington in favour of Warren Pantzer to secure the amount in paragraph 1. 3. Hapday Holdings Pty Ltd ACN 001 185 253 hereby postpones mortgage 3965299 over the land in paragraph 2 in favour of the interest of Warren Pantzer pursuant to the charge in paragraph 2. 4. The orders and agreement in paragraphs 1, 2 and 3 are only to have effect if the bankruptcy of Thomas Richard Wenkart is annulled pursuant to s74 of the Bankruptcy Act on 15 March 2002. 5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith." 16 As noted above, the creditors accepted Dr Wenkart's proposal on 15 March 2002 and his bankruptcy was thereupon annulled. 17 On 31 October 2002 Mr Pantzer filed a notice of motion in this proceeding. Lindgren J later ordered that this notice of motion be taken to be a cross-claim seeking final relief and to the extent necessary compliance with the Federal Court Rules be taken to have been dispensed with. The cross-claim, as subsequently amended, claims the following substantive relief: "1. The Court make an order in aid of its order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of folio identifier G/33817 known as 47 Union Street, Paddington, ('the property') pursuant to security granted on 11 March 2002 for the purpose of realising the property to enable payment to the First Respondent of items in paragraph 2 together with payment of any charge payable by the First Respondent pursuant to the Bankruptcy Realisation (Estate Charges) Act, 1997. 2. That the First Respondent be given power of sale of the property at auction or by private treaty and he be empowered to deduct from the proceeds of sale amounts to which he has been found in these proceedings to be lawfully entitled pursuant to the order made on 11 March 2002 in these proceedings:- (a) The First Respondent's remuneration of $98,095.16 plus interest. (b) Charges payable by the First Respondent under the Bankruptcy Realisation (Estate Charges) Act, 1997 together with any penalties or interest thereon. (c) Legal fees due to Cutler Hughes and Harris in the sum of $163,477.54 plus interest. (d) The First Respondent's remuneration costs, fees and expenses of finalising the bankrupt estate of the applicant and of determining these proceedings. (e) The commission and other expenses of any real estate agent employed by the Trustees. (f) The legal expenses of the trustee in respect of the sale. (g) The legal expenses of transferring the land to the purchaser. (h) The legal expenses of this Cross Claim. (i) The First Respondent's remuneration of acting on the sale. (j) Costs of Taxation of Anne Sexton in relation to Cutler Hughes and Harris Bill of Costs $16,061.75. (k) Costs of the First Respondent awarded by the Full Court in the Full Court appeal file N633 of 2003. (l) Interest on unpaid costs, remuneration and out of pocket expenses of the First Respondent from dates due for payment. (m) costs of High Court proceedings number S517 of 2003 (n) The balance to the Second Cross Respondent. 3. That the Applicant give the First Respondent as Trustee for Sale vacant possession of the property. 4. That a Writ of Possession of 47 Union Street, Paddington being folio identifier G/33817 issue 28 days after the date of this order." 18 On 12 December 2002 Dr Wenkart filed a notice of motion seeking orders including the following: "1 An order restraining the Respondent from selling or conveying the property at 47 Union Street Paddington being the whole of the land in Certificate of Title Folio Identifier G/33817 until further order of this Court. 2 A declaration that the Respondent is not lawfully entitled to claim any remuneration, costs, charges and expenses from the Applicant. 3 Further or in the alternative to paragraph 2 above, a declaration that the Respondent is not lawfully entitled to recover any remuneration, costs, charges and expenses prior to the annulment of the Applicant's bankruptcy pursuant to section 74 of the Bankruptcy Act on 15 March 2002 in excess of that which he was paid;" 22 On 21 October 2003 Lindgren J, in an apparent attempt to crystallise the amount of the remuneration, costs, charges and expenses to which Mr Pantzer was legally entitled (at least, as at that date) within the meaning of order 1 of the consent orders made by Beaumont J on 11 March 2003 (see [15] above), made the following orders: "1. In respect of services provided by any person with respect to the estate in bankruptcy of the applicant, whether those services were provided before or after annulment of the applicant's bankruptcy on 15 March 2002, the respondent by 22 October 2003 require such person to supply a Bill of Costs for such services pursuant to Section 167 of the Bankruptcy Act, 1966 (Cth) provided that this order does not extend to legal services provided by Cutler Hughes and Harris. 2. The respondent notify the applicant in writing by 23 October 2003 of his claim for remuneration in respect of services provided after the annulment of the applicant's bankruptcy on 12 March 2002." 23 At the time of the making of the above orders his Honour noted, amongst other things, that: "The applicant concedes that upon completion of taxation of the claims for costs and remuneration referred to in Orders 1 and 2, the amount taxed will be an amount within the following expression within Order 1 of the Orders made by Beaumont J on [11 March 2002] in this proceeding: 'remuneration, costs, charges and expenses to which [the respondent, Warren Pantzer, as trustee of the applicant, Thomas Richard Wenkart] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart'." I interpolate that, by reason of the judgment of the Full Court concerning the taxation appeals, the claims for costs and remuneration the subject of the certificates of taxation considered in the taxation judgment at first instance must, it seems to me, be understood to fall within this concession made by Dr Wenkart. I do not accept Dr Wenkart's submission that, notwithstanding the outcome of the appeals to the Full Court from the taxation judgment at first instance, I am free to refuse to give effect to the certificates of taxation. 27 The effect of the orders made by Lindgren J on 21 October 2003 is one of the issues that remains to be resolved in this proceeding. In the taxation judgment at first instance I considered this issue and at [83] concluded that, unless and until varied, the orders imposed a restriction on the remuneration and the costs, charges and expenses that Mr Pantzer was entitled to recover from Dr Wenkart in reliance on orders 1 and 2 of the consent orders made by Beaumont J on 11 March 2002. 28 It remains the case that no application has been made for the orders made by Lindgren J on 21 October 2003 to be set aside or varied. For this reason, an important issue that requires to be determined in this proceeding is whether the Full Court took a different view from me as to the effect of his Honour's orders, and the consent orders made by Beaumont J, when it allowed the appeals from the taxation judgment at first instance. If it did it would be appropriate for me now to defer to the Full Court's view. I return to the question in [44] below. 29 On 31 March 2004 Lindgren J directed Mr Pantzer, as cross-claimant, to file and serve points of claim outlining his claim for final relief including quantification and Dr Wenkart, as cross-respondent, to file and serve points in reply. 30 On 1 October 2004, pursuant to leave granted by Lindgren J, Dr Wenkart filed a notice of motion seeking, relevantly, the following orders: "1. That the Respondent comply with Section 170 of the Bankruptcy Act 1966 and give an accounting for all monies received and for all monies expended in the former bankruptcy estate of the Applicant within seven (7) days of being ordered to do so. 2. That the respondent pay: a. The sum of $277,920.30 to the Applicant being the surplus moneys from the administration of the Applicant's estate in bankruptcy; and b. Such other amounts as disclosed by reason of the Respondent's compliance with Section 170 of the Bankruptcy Act 1966 . 3. That all previous Orders for costs in these proceedings be vacated ...." 31 Shortly thereafter this proceeding was transferred for administrative reasons from the docket of Lindgren J to my docket. On 14 October 2004 it was formally noted by consent on the Court's record that: "The parties have agreed that Justice Branson should continue with the hearing of the respondent's motion brought by notice of motion filed on 31 October 2002 [ie the cross-claim] and the applicant's motion brought by notice of motion filed on 12 December 2002 as if Justice Branson stood in the shoes of both Justice Beaumont and Justice Lindgren in all respects including the respect that all evidence given before their Honours should be taken to have been given before Justice Branson and Justice Branson should be part heard on the motion." 32 After raising the matter with the parties at a directions hearing, I determined that it would be appropriate to move as quickly as possible to a final hearing at which all outstanding issues, including those raised by the notices of motion filed on 12 December 2002 and 1 October 2004 respectively, would be dealt with. In the events that happened each of the taxation appeals was initiated before that hearing eventuated and the final hearing effectively encompassed them as well. 33 After the publication of the taxation judgment at first instance and the judgment of the Full Court allowing the appeals therefrom, but before Dr Wenkart's application for special leave to appeal to the High Court was dismissed, a further notice of motion was filed by Dr Wenkart. The principal order sought by that notice of motion, which was filed on 14 February 2007, was the following order: "Order that the First Respondent forthwith take all steps to withdraw any claim for or in relation to: (a) remuneration whether by reason of the asserted claim on 17 January 2007 (or otherwise) for the period after 21 October 2003; and (b) legal costs incurred after 21 October 2003 unless an order for such costs is made by the Federal Court pursuant to FCR Order 62, and the First Respondent has complied with the taxation of those costs in accordance with that Order." 34 The affidavit filed in support of the above notice of motion referred to a letter dated 17 January 2007 by which Mr Pantzer advised Dr Wenkart of a claim for remuneration and costs (excluding legal costs) from 22 October 2003 to 31 December 2006 in the amount of $159,192.82. The affidavit further referred to a letter dated 19 January 2007 by which Mr Pantzer advised Dr Wenkart that he had received invoices from his solicitor totalling $302,682.97 and that as no request for taxation had been made he requested payment of the invoices without delay. The affidavit made plain that Dr Wenkart took the view that Mr Pantzer's claims for remuneration and expenses were without foundation because: "(a) The bankruptcy ended in March 2002; (b) Lindgren J made orders in [this proceeding] on 21 October 2003 requiring [Mr Pantzer] to make a final claim for remuneration by 23 October 2003 and a final claim for expenses by 22 October 2003; (c) [Mr Pantzer] is not entitled to claim remuneration and expenses as a trustee in bankruptcy for post annulment work as if he was a trustee in bankruptcy; (d) There is no agreement with [Dr Wenkart] to reimburse [Mr Pantzer] for his post annulment remuneration (if any) or his post annulment expenses (if any); and (e) [Mr Pantzer's] claims are personal costs which have nothing to do with the administration of the former bankrupt estate of [Dr Wenkart] (which ended in March 2002)." When the above notice of motion came before me for directions, it was agreed that it did not require immediate hearing and determination but could be determined having regard to the final judgment in this proceeding that was then reserved. Objection was not taken that it was inappropriately filed in this proceeding. 35 Having regard to the matters outlined above, the following are the principal issues that require determination in this proceeding: (1) The extent, if any, to which Mr Pantzer is lawfully entitled to remuneration, and his costs, charges and expenses for work done after the annulment of Dr Wenkart's bankruptcy, and in particular the significance, if any, in this regard of the orders made by Lindgren J on 21 October 2003? (2) Whether Mr Pantzer's legal costs after 21 October 2003 to the completion of the administration of Dr Wenkart's bankrupt estate are to be taxed on a solicitor/client basis? (3) Whether Mr Pantzer is lawfully entitled to recover from Dr Wenkart the sum of $20,000 owing pursuant to the Bankruptcy (Estate Charges) Act 1997 (Cth)? (4) Whether Mr Pantzer is required to give an accounting concerning the property and affairs of Dr Wenkart in compliance with s 170 of the Act and to pay to Dr Wenkart surplus moneys (if any) from the administration of his bankrupt estate? (5) What are the amounts, if any, to which Mr Pantzer has established that he is "lawfully entitled"? (6) Whether orders should be made to facilitate the enforcement, either immediately or deferred, in respect of the security provided by the consent orders made on 11 March 2002? 36 Dr Wenkart has contended in this and other proceedings that Mr Pantzer, as trustee of the bankrupt estate of Dr Wenkart, cannot claim any entitlement to remuneration, costs, charges or expenses under the Act in respect of any steps taken after the annulment of Wenkart's bankruptcy. I rejected that contention in the taxation judgment at first instance at [40]-[47]. The Full Court on the appeal from the taxation judgment at first instance accepted that Mr Pantzer was entitled to claim under the Act remuneration, costs, charges and expense referable to work reasonably and bona fide undertaken after the annulment of the bankruptcy for the purpose of administering the estate or performing any public duty imposed by the Act (at [43]). 37 It is no longer open to Dr Wenkart to argue in this Court that Mr Pantzer cannot claim any entitlement as the trustee of Dr Wenkart's bankrupt estate beyond 15 March 2002, the date of the annulment of Dr Wenkart's bankruptcy. 38 Dr Wenkart contended, in the alternative, that Lindgren J, by the orders made on 21 October 2003, required Mr Pantzer to make his claim for remuneration, costs, charges and expenses "once and for all". Consequently, he argued, the agreement to pay recorded in order 1 of the orders made by consent by Beaumont J on 11 March 2002 (see [15] above), and the concession noted by Lindgren J on 21 October 2003 (see [22] above), are limited to bills of costs and claims for remuneration properly made earlier than 21 October 2003 or pursuant to the order made on that day. 39 As mentioned above, I gave consideration in the taxation judgment at first instance to the issue of whether, and to what extent, the orders made by Lindgren J on 21 October 2003 limited the amount Mr Pantzer could claim as remuneration, costs, charges and expenses to which he is lawfully entitled within the meaning of the consent orders made on 11 March 2002. At [82]-[84] I observed: "Order 1 of these orders placed Mr Pantzer under an obligation by 22 October 2003 to require 'any person' (other than the firm Cutler Hughes and Harris) who had provided services with respect to the estate in bankruptcy of Dr Wenkart to supply a bill of costs for those services pursuant to s 167 of the Act. Order 2 required Mr Pantzer by 23 October 2003 to notify Dr Wenkart of his claim for remuneration in respect of work undertaken by him after the date of the annulment of Dr Wenkart's bankruptcy. It appears that as at 21 October 2003 there was no issue between the parties as to Mr Pantzer's claim for remuneration in respect of work undertaken by him on or before the date of the annulment of Dr Wenkart's bankruptcy. I conclude that, no application having been made for the orders made by Lindgren J on 21 October 2003 to be varied or set aside, Mr Pantzer's entitlement to recover remuneration, costs, charges and expenses from Dr Wenkart, and if necessary to enforce the charge against the land and improvements known as 47 Union Street, Paddington, is an entitlement to recover: (a) remuneration which satisfies both of the following requirements: (i) it is remuneration to which Mr Pantzer is lawfully entitled in respect of work properly undertaken by him in carrying out his duties under the Act after the date of the annulment of Dr Wenkart's bankruptcy; and (ii) it is remuneration covered by a claim of which Mr Pantzer notified Dr Wenkart by 23 October 2003; and (b) the amounts for which bills of costs supplied pursuant to requirements made by Mr Pantzer on or before 22 October 2003 by persons who had provided services with respect to Dr Wenkart's estate have been taxed by a taxing officer; and (c) the amount for which the bill of costs of the firm Cutler Hughes and Harris was taxed. I do not understand that the firm Cutler Hughes and Harris has provided to Mr Pantzer a bill of costs dated later than the bill considered by Beaumont J in Wenkart v Pantzer (2003) FCA 471." 40 On appeal from the taxation judgment at first instance the Full Court noted at [27]-[28] that my views on the question whether the effect of the orders made by Lindgren J on 21 October 2003 was to limit the amounts that Mr Pantzer may claim in reliance on order 1 of the consent orders made by Beaumont J on 11 March 2002 were contentious. However, presumably because it was unnecessary for it to do so, the Full Court made no further reference to my views on this question or, indeed, to the orders made by Lindgren J on 21 October 2003. 41 Nonetheless, the Full Court at [43]-[44] observed: "In the present matter however, the litigation in which Mr Pantzer became involved after Dr Wenkart's bankruptcy had been annulled was to defend, successfully, in the face of sustained opposition from Dr Wenkart, the remuneration, costs, charges and expenses he had claimed at the time of the annulment. From Mr Pantzer's viewpoint, such a course was unavoidable, in a practical sense, if he was to maintain and realise his entitlements. It was in his capacity as a former trustee that Mr Pantzer was drawn into the litigation to assert a right to be paid a claimed amount which Dr Wenkart had not challenged by seeking taxation in the way provided for by the Regulations, and to exercise an implied right of sale arising from the consent orders and the failure of Dr Wenkart to comply with them. It is true, in a sense, that the litigation was undertaken by Mr Pantzer for his benefit, as the primary judge observed. In the same sense, any litigation into which a trustee might be drawn concerning remuneration, disbursements and expenses is litigation for the trustee's benefit. But to characterise it this way does not necessarily answer the question whether the trustee (or former trustee) has been properly involved in the litigation as an incident of having acted as a trustee charged with the responsibility of administering the bankrupt's estate. In our view, the facts in the present case compel the conclusion that the remuneration, costs, charges and expenses incurred after the annulment of the bankruptcy were so incurred for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering the estate. Consequently, Mr Pantzer was 'lawfully entitled' to them within the terms of the consent orders." 42 Having regard to the above observations of the Full Court, I do not consider that I am free to accept Dr Wenkart's submission that the effect of the reasoning of the earlier Full Court set out in [21] above is that Division 2 of Part VIII of the Act applies post-annulment but only to the computation of pre-annulment claims. It seems to me that the Full Court has made clear that a trustee, or former trustee, is entitled to recover remuneration, costs, charges and expenses under the Act wherever he or she "has been properly involved in the litigation as an incident of having acted as a trustee charged with the responsibility of administering the bankrupt's estate" . Their Honours also observed that the remuneration, costs, charges and expenses "incurred after the annulment of the bankruptcy" were incurred for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering the estate with the consequence that Mr Pantzer was "lawfully entitled" to them within the meaning of the consent orders. 43 I therefore proceed on the basis that amounts claimed by Mr Pantzer as remuneration, costs, charges and expenses incurred by him for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering Dr Wenkart's bankrupt estate are amounts to which Mr Pantzer is prima facie "lawfully entitled" within the meaning of order 1 of the consent orders made on 11 March 2002. I also proceed on the basis that, subject to any relevant impact of the orders made by Lindgren J on 21 October 2003, the agreement to pay reflected in order 1 of the 11 March 2002 consent orders, and therefore the agreement to charge reflected in order 2 of those orders, extends to those amounts. 44 I next turn to the issue of the proper construction of the orders made by Lindgren J on 21 October 2003. The reasons for judgment of the Full Court make plain that, as at 21 October 2003, the possibility existed of Mr Pantzer becoming "lawfully entitled" to amounts by way of remuneration, costs, charges an expenses in respect of services not yet provided notwithstanding that Dr Wenkart's bankruptcy had been annulled nineteen months earlier. Although Lindgren J may not have turned his mind to this possibility when he made the orders (see [79] below), nothing in the language of the orders suggests that they were intended to deprive Mr Pantzer of any amounts to which he might thereafter become lawfully entitled. Nonetheless, the orders were plainly intended to have some effect; they required Mr Pantzer to take certain steps and some significance must have been intended to attend any failure by him to take those steps. Having regard to the reasons for judgment of the Full Court, I conclude that the orders required Mr Pantzer to take those steps in relation to services that had, as at that date, been provided by any person in respect of the bankrupt estate of Dr Wenkart and in relation to his claim for remuneration as at that date (ie in respect of his present, but unclaimed, entitlements). Were it established that Mr Pantzer failed to comply with the orders in respect of any services that had been provided as at 21 October 2003, or in respect of a claim for remuneration for work undertaken as at that date, Mr Pantzer would not, I conclude, be entitled to recover any amount in respect of those services or that claim for remuneration in reliance on orders 1 and 2 of the consent orders made on 11 March 2002. This, I conclude, is the full extent of the ongoing significance of the orders made by Lindgren J on 21 October 2003 so far as Mr Pantzer's entitlements to remuneration, costs, charges and expenses are concerned. 45 The question of Mr Pantzer's entitlement to recover his legal costs after 21 October 2003 raises two principal issues: (1) the significance of the orders made by Lindgren J on 21 October 2003; and (2) the significance of the orders obtained by Mr Pantzer in proceedings in this Court requiring Dr Wenkart to pay his legal costs of those proceedings. 46 My conclusion as to the significance of the orders made by Lindgren J on 21 October 2003 is set out in [44] above. 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy. 78 In this proceeding I stand in the shoes of Lindgren J (see [31] above). Wenkart v Pantzer (No 3) is an interlocutory judgment in this proceeding in which Lindgren J dismissed Dr Wenkart's objection to the Court's jurisdiction to hear and determine the motions brought by the notice of motion filed by Mr Pantzer on 31 October 2002. 79 His Honour's reasons for judgment in Wenkart v Pantzer (No 3) at [41] suggest that his Honour proceeded on the basis that the amount of the remuneration to which Mr Pantzer was or might become "lawfully entitled" from Dr Wenkart within the meaning of order 1 of the consent orders made by Beaumont J on 11 March 2002 had by then been finally determined. His Honour observed: "The amount of the remuneration to which Mr Pantzer is entitled as trustee until the annulment on 15 March 2002 has now long since been quantified at 85 per cent of $115,406.07, ie, $98,095.16 (see s 162(4) of the Act and reg 8.08 of the Regulations). It appears that the only issue now remaining to be decided (apart from the present jurisdictional question) is whether the Court should make the 'orders in aid' sought in Mr Pantzer's notice of motion filed on 31 October 2002." 80 However, the reasons for judgment of the Full Court on appeal from the taxation judgment at first instance disclose that, if his Honour did proceed on that basis, he was in error. Those reasons for judgment reveal that the precise aggregate amount to which Mr Pantzer may become "lawfully entitled" within the meanings of order 1 of the consent orders of 11 March 2002 cannot be determined until "practical effect" has been given to the consent orders. This is because the Full Court has held that Mr Pantzer is entitled to remuneration as trustee in bankruptcy (ie profit remuneration in respect of his own time, not just to his proper legal and other costs) in respect of steps taken by him "for the purpose of giving practical effect to the 11 March 2002 consent orders" (see [43] above). 83 In Wenkart v Pantzer (No 3) at [66] Lindgren J noted that Mr Pantzer's claim to enforce the charge referred to in order 2 of the consent orders made on 11 March 2002 is a claim to enforce proprietary rights springing out of a contract. After referring to s 22 of the Federal Court of Australia Act 1976 (Cth) and s 79 of the Judiciary Act 1903 (Cth) his Honour at [101]-[103] observed: "Under the law of the State of New South Wales, a charge of the kind given by Dr Wenkart to Mr Pantzer is an equitable charge enforceable in the equitable jurisdiction of the Supreme Court of New South Wales by the appointment of a trustee for sale on the application of the chargee: Tennant v Trenchard (1869) LR 4 Ch App 537; and cf Fine Real Estate Network Pty Ltd v Howell (unreported, Supreme Court of NSW, 4767 of 1994, Young J, 4 December 1997). In my opinion, the law providing for the enforcement of an equitable charge by the appointment of a trustee for sale is a law relating to procedure within s 79 of the Judiciary Act . This Court was created as a 'court of law and equity': FCA Act, s 5(2). It has power to appoint a trustee for sale of the Property. The claim to enforce the charge was 'properly brought forward' by Mr Pantzer for the purposes of s 22 of the FCA Act, in a matter in respect of which the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act . Enforcing the charge by the appointment of a trustee for sale falls within s 22 of the FCA Act and s 79 of the Judiciary Act ." 84 Dr Wenkart argued, nonetheless, that because Mr Pantzer had issued a notice purportedly issued under s 111 of the Conveyancing Act 1919 (NSW) he was bound to proceed on the basis that Part 7 of Division 3 of that Act applied in respect of the charge recognised by order 2 of the consent orders. I reject this argument. Section 111 of the Conveyancing Act applies in the case of a mortgage or charge registered under the Real Property Act 1900 (NSW). No misapprehension on the part of Mr Pantzer, or his legal advisers, in this regard can change the character of order 2. Order 2 has not given rise to a charge registered under the Real Property Act . Mr Pantzer's rights under the consent orders are rights in personam against Dr Wenkart. 85 Dr Wenkart also placed reliance on Mr Pantzer's failure to serve the notice purportedly issued under s 111 on Hapday Holdings Pty Ltd, which holds a registered mortgage over the land the subject of the charge, or on the occupier of the premises on the land. For the reasons already given this reliance was misplaced.


case_text: Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy. 66 In Wenkart v Pantzer (No 6) [2003] FCA 1210 Lindgren J dismissed a motion by Dr Wenkart that he be granted an extension of time within which to request that Mr Pantzer's claim for remuneration be taxed. His Honour noted at [34.4] that there was no evidence that Mr Pantzer's claim was excessive and, indeed, an officer of ITSA who had inspected the relevant files had expressed the view that Mr Pantzer had not carried out work unnecessarily "taking all factors into account" . His Honour additionally noted at [34.5] that it: "would be burdensome for Mr Pantzer now to have to prepare and lodge a detailed bill of costs covering the numerous events and documents involved, which occurred or came into existence over the period 30 January 2001 to 15 March 2002." His Honour also observed at [34.6]: "The purpose of the time limit [contained in reg 8.09(1)] is to ensure that finality and certainty are brought to the quantification of a trustee's remuneration within a relatively short period of time." 67 I conclude that, upon the dismissal of Dr Wenkart's motion for an extension of time within which to request that Mr Pantzer's claim for remuneration be taxed, Mr Pantzer became lawfully entitled to the amount claimed, namely $98,095.16. 68 I have already concluded above that Mr Pantzer is lawfully entitled to the amount of the charge payable under the Bankruptcy (Estate Charges) Act 1977 (Cth) (see [56] above).


case_title: Wenkart v Pantzer [2003] FCA 471

case_text: Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 24 As I noted in the taxation judgment at first instance at [10], the reason for the first of the orders made on 21 October 2003 not extending to legal services provided by the firm Cutler Hughes and Harris may be assumed to be that on 6 May 2003 the Court ruled that Mr Pantzer was lawfully entitled to be reimbursed for certain taxed costs of the firm Cutler Hughes and Harris ( Wenkart v Pantzer [2003] FCA 471). The second order may be assumed to reflect the fact that Mr Pantzer had already made claims for remuneration in respect of services provided before the annulment of Dr Wenkart's bankruptcy. 25 By letter dated 21 October 2003 Mr Pantzer wrote to Dr Wenkart in the following terms: " Re: Your Former Bankrupt Estate Matter No. NSW 5988/99/0 Notice of Claim for Outstanding Remuneration and Disbursements My claim for outstanding remuneration and disbursements (excluding legal costs) from 16 March 2002 up to and including 21 October 2003 is $127,460.25 (including GST). I reserve my rights to claim remuneration and disbursements for the period on and after 22 October 2003 in relation to the finalisation of the matters presently before the Court and otherwise in respect of the estate of the former bankrupt." 26 As I noted in the taxation judgment at first instance, it is not clear what Mr Pantzer sought to achieve by the last of the two paragraphs above. It was, of course, not open to him, by engaging in correspondence with Dr Wenkart, to alter the effect of orders of this Court. It may be that he simply wished to place on record his understanding that the orders made on 21 October 2003 did not reach to claims for remuneration and disbursements for any period commencing thereafter. 39 As mentioned above, I gave consideration in the taxation judgment at first instance to the issue of whether, and to what extent, the orders made by Lindgren J on 21 October 2003 limited the amount Mr Pantzer could claim as remuneration, costs, charges and expenses to which he is lawfully entitled within the meaning of the consent orders made on 11 March 2002. At [82]-[84] I observed: "Order 1 of these orders placed Mr Pantzer under an obligation by 22 October 2003 to require 'any person' (other than the firm Cutler Hughes and Harris) who had provided services with respect to the estate in bankruptcy of Dr Wenkart to supply a bill of costs for those services pursuant to s 167 of the Act. Order 2 required Mr Pantzer by 23 October 2003 to notify Dr Wenkart of his claim for remuneration in respect of work undertaken by him after the date of the annulment of Dr Wenkart's bankruptcy. It appears that as at 21 October 2003 there was no issue between the parties as to Mr Pantzer's claim for remuneration in respect of work undertaken by him on or before the date of the annulment of Dr Wenkart's bankruptcy. I conclude that, no application having been made for the orders made by Lindgren J on 21 October 2003 to be varied or set aside, Mr Pantzer's entitlement to recover remuneration, costs, charges and expenses from Dr Wenkart, and if necessary to enforce the charge against the land and improvements known as 47 Union Street, Paddington, is an entitlement to recover: (a) remuneration which satisfies both of the following requirements: (i) it is remuneration to which Mr Pantzer is lawfully entitled in respect of work properly undertaken by him in carrying out his duties under the Act after the date of the annulment of Dr Wenkart's bankruptcy; and (ii) it is remuneration covered by a claim of which Mr Pantzer notified Dr Wenkart by 23 October 2003; and (b) the amounts for which bills of costs supplied pursuant to requirements made by Mr Pantzer on or before 22 October 2003 by persons who had provided services with respect to Dr Wenkart's estate have been taxed by a taxing officer; and (c) the amount for which the bill of costs of the firm Cutler Hughes and Harris was taxed. I do not understand that the firm Cutler Hughes and Harris has provided to Mr Pantzer a bill of costs dated later than the bill considered by Beaumont J in Wenkart v Pantzer (2003) FCA 471." 52 In Wenkart v Pantzer [2003] FCA 471 Beaumont J ruled that "the respondent [ie Mr Pantzer] is lawfully entitled to be reimbursed for expenses incurred under the Bankruptcy (Estate Charges) Act 1997 (Cth) ". 53 The basis upon which Dr Wenkart opposed the making of an order requiring him to pay the amount of $20,000 for which Mr Pantzer remained liable as at the date of the hearing is summarised in his written submissions as follows: "45. Mr Pantzer also gave evidence that Lawler Partners was proposing to pay the amount of $20,000 for which Mr Pantzer remained liable under the Bankruptcy (Estate Charges) Act 1997 (Cth). This payment was to be made by 10 June 2005. 46. The evidence discloses that 'Not a cent' of that amount was to come from Mr Pantzer. There was no contract, arrangement, or understanding between Lawler Partners and Mr Pantzer in relation to the repayment of that amount. Mr Pantzer recognised that the amount of $20,000 was 'technically payable' by him. He agreed that it was like a 'gift to him', that Lawler Partners was paying the $20,000. Furthermore, no promise has been made in relation to the repayment of that amount by Mr Pantzer. 47. In the circumstances, having regard to the way in which Mr Pantzer puts his claim against Dr Wenkart, the Court should refuse Mr Pantzer to recover the amount of $20,000." (footnotes omitted) 54 Mr Pantzer works in the Sydney office of Lawler Partners which is predominantly a Newcastle based firm. He is not a partner or an employee of Lawler Partners but rather an "independent consultant". As the above written submissions reflect, Mr Pantzer gave evidence that Lawler Partners, rather than he personally, would make payment of the charge (and possibly interest thereon) in respect of Dr Wenkart's bankrupt estate payable under the Bankruptcy (Estate Charges) Act 1997 (Cth) by 10 June 2005. He acknowledged that there was no contract, arrangement or understanding between him and Lawler Partners in relation to that proposed payment. 69 In Wenkart v Pantzer [2003] FCA 471 Beaumont J ruled that Mr Pantzer is lawfully entitled to disbursements claimed by Cutler, Hughes and Harris. His Honour also noted that no appeal had been lodged from the decision of the taxing officer to issue a certificate of taxation on 17 February 2003 in respect of costs, including unpaid costs, in the total sum of $180,435.30. Mr Pantzer gave evidence that the amount of $163,477.54 remains owing by him to Cutler, Hughes and Harris in respect of these costs. I conclude that Mr Pantzer is lawfully entitled to this amount. 70 The invoice from the taxing officer in respect of the taxation of the costs of Cutler, Hughes and Harris was not tendered as foreshadowed in written submissions of Mr Pantzer. It appears that the amount of the invoice has not been paid. 71 Section 167(1) of the Act provides: "The trustee of a bankrupt's estate may require a bill of costs for services provided by a person in relation to the administration of the estate to be taxed by a taxing officer. The trustee may make the requirement on the trustee's own initiative, or at the request of the bankrupt or a creditor." 73 The reasons for ruling of Beaumont J in Wenkart v Pantzer [2003] FCA 471 at [11] disclose that his Honour, in whose shoes I now stand, was satisfied that Dr Wenkart's then solicitors, acting on behalf of Dr Wenkart and some of his creditors, wrote to Mr Pantzer's then solicitors on 24 April 2002 asking that Cutler, Hughes and Harris tax their costs for work done on behalf of Mr Pantzer. Having regard to the language of s 167(1) and reg 8.11(5) respectively, I conclude that in these circumstances "the person requesting the taxation" within the meaning of reg 8.11(5) was Dr Wenkart and those of his creditors on whose behalf Dr Wenkart's then solicitors were acting when they wrote the letter dated 24 April 2002. 74 There being no evidence that Mr Pantzer has paid the invoice from the taxing officer, I conclude that he is not lawfully entitled to the amount for which it was issued. Liability to pay the invoice rests on Dr Wenkart and those of his creditors who joined in the request that Cutler, Hughes and Harris tax their costs. 75 Following the making by Lindgren J of the orders of 21 October 2003 (see [22] above) Mr Pantzer requested that a claim for remuneration and certain bills of costs for services provided by others purportedly in relation to the administration of Dr Wenkart's estate be taxed. By a certificate dated 13 December 2004 the taxing officer certified that she had taxed and allowed the remuneration, disbursements and expenses claimed by Mr Pantzer for the period 15 March 2002 to 21 October 2003 in the amount of $169,955.54. The amount allowed for Mr Pantzer's remuneration was $83,219.82. Dr Wenkart's challenge to this certificate of taxation, and to a further certificate issued by the taxing officer on 12 January 2005, was dismissed by the Full Court (see [8]-[12] above). As I have observed above (see [23]), Dr Wenkart conceded that upon completion of taxation of the claims for costs and remuneration referred to in orders 1 and 2 of the orders made on 21 October 2003 the amounts taxed would be amounts to which Mr Pantzer is lawfully entitled. I conclude that Mr Pantzer is lawfully entitled to the sum of $83,219.82 for remuneration for the period 15 March 2002 to 21 October 2003.


case_title: Wenkart v Pantzer [2003] FCA 364

case_text: Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204).


case_title: Widgery v Tepper (1877) 6 Ch D 364

case_text: Dr Wenkart placed reliance on the statement of James LJ, with whom Baggallay LJ agreed, in Widgery v Tepper (1877) 6 Ch D 364 at 369 that: "The authorities are sufficient to shew that a charging order cannot be given except for an ascertained sum, and not for costs, charges, and expenses, until they have been taxed." In Wilkie v Wilkie & Anor [1905] VR 80 at 82 Hodges J accepted, on the authority of Widgery v Tepper , that an ex parte order made by him charging a sum of money paid into court as security for costs of an appeal could not stand because the costs had not yet been taxed. See also Fine Real Estate Network Pty Ltd v Howell (unreported, Young J, Supreme Court of New South Wales, 4 December 1997). 82 I do not consider that I am free to accept that the principle invoked by the Court of Appeal in Widgery v Tepper has application in the circumstances of this case to invalidate the charge purportedly granted by Dr Wenkart over the Paddington property. The orders of 11 March 2002 were made by consent (see [15] above). While the proper construction of order 2 of those orders may be open to argument, there is no doubt that Dr Wenkart agreed to charge the Paddington property in favour of Mr Pantzer to secure the amount of remuneration, costs, charges and expenses to which Mr Pantzer was or might become lawfully entitled. He did so to facilitate the consideration by his creditors of a proposal under s 73 of the Act. Having taken the benefit of the agreement reflected in the consent orders, Dr Wenkart is not free now (a) to disown order 2 because of the Full Court's determination of the true extent of Mr Pantzer's lawful entitlements or (b) to suggest that the order cannot be given any practical effect. Having regard to the reasons for judgment of the Full Court, I conclude that the charge effected by order 2 encompasses all amounts to which, during the life of the charge, Mr Pantzer is or becomes lawfully entitled from Dr Wenkart.


case_title: Wilkie v Wilkie & Anor [1905] VR 80

case_text: Dr Wenkart placed reliance on the statement of James LJ, with whom Baggallay LJ agreed, in Widgery v Tepper (1877) 6 Ch D 364 at 369 that: "The authorities are sufficient to shew that a charging order cannot be given except for an ascertained sum, and not for costs, charges, and expenses, until they have been taxed." In Wilkie v Wilkie & Anor [1905] VR 80 at 82 Hodges J accepted, on the authority of Widgery v Tepper , that an ex parte order made by him charging a sum of money paid into court as security for costs of an appeal could not stand because the costs had not yet been taxed. See also Fine Real Estate Network Pty Ltd v Howell (unreported, Young J, Supreme Court of New South Wales, 4 December 1997).


case_text: In Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118 ; (1999) 85 FCR 134 at 148, the Full Court in relation to "waiver" said: 'The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is "undue" may import consideration of compassionate or other circumstances . It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.' (Emphasis added.) 34 The Tribunal noted these remarks at [40] of its reasons for decision. However, there is considerable force in the view that, when the Tribunal came to apply the principles articulated in Bui [1999] FCA 118 ; 85 FCR 134 to the question of "undue cost" and its overriding discretion to waive the requirements of par 4007(1)(c), it failed to properly consider or give any weight to the opinions of Dr Chen. In my view, the opinions of Dr Chen that the appellant's medical condition was improving and that she would require only limited medical treatment in the foreseeable future are relevant considerations to an assessment of what constitutes "undue cost" for the purposes of par 4007(2). By failing to take into account these relevant considerations at [59] (indeed, as I have noted above, any attention given to the evidence of Dr Chen was fleeting at best), in my view the Tribunal was in error and its decision should be set aside on the basis that it failed to properly address this issue. 35 For the above reasons, the appeal is allowed. The decision of the Federal Magistrate of 11 April 2007 should be set aside. The matter is remitted to the Tribunal to be determined according to law. The first respondent is to pay the appellant's costs of the proceedings before the Federal Magistrate and this appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 March 2008 Counsel for the Appellant: Mr I Latham Solicitor for the Appellant: HIV/AIDS Legal Centre Inc Counsel for the Respondent: Mr M Cleary Solicitor for the Respondent: Clayton Utz Dates of Hearing: 14 December 2007 and 25 February 2008 Date of Judgment: 19 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/367.html


case_text: At this point, I note that the respondent submits that the issue concerning the application of Seligman 85 FCR at 127 was not put to the Federal Magistrate, and therefore cannot be raised before this Court unless leave is granted: see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 56. To the extent that it is necessary, I grant leave to raise this new point on appeal, as I regard it as both cogent and of central relevance. The Minister was on notice that this ground was going to be advanced by the appellant, and consequently no undue prejudice arises.


case_outcome: applied

case_text: The central submission advanced by the appellant is that the Tribunal erred in accepting as valid an opinion of the MOC which was 23 months old. It is said that in order to be valid, the opinion must address satisfaction of the criteria in par 4007(1)(c) as at the date of the Minister's decision , and that the MOC's report relied on by the Tribunal in this case could not satisfy this requirement. In support of this proposition, the appellant relies on the decision in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 ; (1999) 85 FCR 115 at 127, where the Full Court, after noting that reg 2.25A(3) required the Minister to take the opinion of the MOC as correct, observed this was subject to the three following qualifications: '1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4. 2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. 3. The opinion must address satisfaction of the requirements at the time of the Minister's decision .' (Emphasis added.) In this case the opinion of the MOC was dated 8 May 2003, and the decision of the Tribunal was 15 April 2005. Accordingly, it is said, the Tribunal fell into jurisdictional error by relying on a report which was 23 months out of date, and which therefore did not address the satisfaction of the requirements in par 4007(1)(c) at the time of its decision. 14 At this point, I note that the respondent submits that the issue concerning the application of Seligman 85 FCR at 127 was not put to the Federal Magistrate, and therefore cannot be raised before this Court unless leave is granted: see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 56. To the extent that it is necessary, I grant leave to raise this new point on appeal, as I regard it as both cogent and of central relevance. The Minister was on notice that this ground was going to be advanced by the appellant, and consequently no undue prejudice arises. 18 The determination of this appeal depends on an application of the test laid down by the Full Court in Seligman 85 FCR at 127, where it was stated that the Minister is required by reg 2.25A(3) to take the opinion of the MOC as correct, subject to a qualification that, inter alia , any such opinion must address whether the relevant requirements were satisfied at the time of the Minister's decision . In this case, it is clear that the relevant requirements are those contained in par 4007(1)(c) of Schedule 4 of the Regulations . It is also clear that the Tribunal's decision took the MOC's opinion as correct. The issue which arises for determination therefore is whether the Tribunal fell into jurisdictional error when it took as correct an opinion of an MOC which was given 23 months before the Tribunal made its decision, and which, as a result of this lapse in time, could not strictly be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal's decision . 19 In practical terms, the requirement in Seligman 85 FCR at 127 that the MOC's opinion must address satisfaction of relevant requirements as at the time of the Minister's decision cannot be read literally. For example, where the Tribunal is reviewing the Minister's decision, it cannot be reasonably suggested that the Tribunal should be required to have an MOC's opinion as at the same date as its decision. Generally, the Tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision. 20 However, in addressing this question, the Tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC's report and the making of its decision. In some cases, for example, it may be that an MOC's opinion expressed many years before the Tribunal's decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to that opinion's relevance, currency and reliability. Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC's report and the Tribunal's decision, any evidence of change (and, in particular, improvements) in the applicant's health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC. 21 In my view, the circumstances in this case demonstrate that the Tribunal fell into jurisdictional error when it took the MOC's opinion as correct because, applying the Full Court's statement in Seligman 85 FCR at 127, that opinion could not be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal's decision. Three considerations lead me to this conclusion. 22 First, the lapse in time in this case between the date of the MOC's opinion and the rendering of the Tribunal's decision was almost two years. Although such a delay may not be uncommon or excessive in many visa and judicial review applications, two years can be a long period in which an individual's health may improve or deteriorate significantly. Consideration of an outdated report could be unacceptable because the Tribunal, pursuant to its obligation under reg 2.25A(3), will act on a report which cannot be said to be a full and proper assessment of the applicant's health or the cost of treatment at the time the Tribunal's decision was made. In other words, the Tribunal, by consulting an out of date report, risks taking into account irrelevant considerations, namely, information and medical opinions which no longer apply to an applicant. In my view, these observations apply to the lapse in time between the issue of the MOC's report and the making of the Tribunal's decision in this case. 23 Secondly, in this case the evidence of improvement in the appellant's health over the 23 month period prior to the Tribunal's decision appears to have been significant. As Dr Chen observes, in the time since diagnosis, the appellant's viral load dropped from 750,000 copies per millilitre to an "undetectable" level, and her CD4 count rose from 230 to at least 680 cells per cubic millimetre. This improvement was described by Dr Chen as "remarkable". 24 Thirdly, there is substantial disagreement between the medical opinions of Dr Chen and the opinion of the MOC. Three reports from Dr Chen were placed before the Tribunal, with the last report being issued shortly after the hearing had taken place. The substance of the latter two opinions of Dr Chen is that the appellant was responding very well to treatment; that she would not require inpatient care for the foreseeable future; that her medication has remained unchanged and constant since initial diagnosis; that she has shown "excellent adherence to treatment"; and that her prognosis was generally very good. Counsel for the appellant observed, and it was not challenged, that the content of these reports was very different to (and, it can be added, significantly more optimistic than) the report of the MOC. Indeed, the references to hospitalisation and intermittent income support in the report of the MOC imply that significant inpatient management would be required for the appellant. This is a matter directly disputed in the reports of Dr Chen. Accordingly, although Dr Chen's reports (unlike the MOC's) do not include an estimate of the cost of the appellant's future treatment, the fact that his reports express different medical conclusions, pursuant to examinations of the appellant well after the date of the MOC's report and shortly before the date of the Tribunal's decision, casts doubt on the currency and reliability of the MOC's assessment of the appellant's medical condition and the cost of her treatment, and supports a conclusion that the MOC's report does not address the appellant's satisfaction or lack of satisfaction of par 4007(1)(c) at the time of the Tribunal's decision. 25 On the basis of these three considerations, I am of the view that the Tribunal fell into jurisdictional error by taking as correct a report of the MOC which, contrary to Seligman 85 FCR at 127, does not address the appellant's satisfaction of par 4007(1)(c) at the time of the Tribunal's decision . The Tribunal's recitation of Dr Chen's evidence is cursory, and no substantive analysis of his opinions is engaged in; at no stage does the Tribunal state that there are significant inconsistencies between the opinions of Dr Chen and the MOC, nor does it explore those inconsistencies; and it registers no concern that the report of the MOC on which it relies is almost two years old at the time of its decision. Moreover, even though the Tribunal states early in its reasons that the Full Court's decision in Seligman [1999] FCA 117 ; 85 FCR 115 is relevant to the appellant's case, there is no evidence on the face of its reasons that the Tribunal considered in any way the applicability of that authority's construction of reg 2.25A.


case_text: The appellant also submitted that the Tribunal fell into jurisdictional error by failing to seek an updated opinion from the MOC, and relies on Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 to support this proposition. Given my finding above that the error in this case lies in the Tribunal's taking as correct an opinion of the MOC which, according to the Full Court's construction of reg 2.25A(3), should not have been taken as correct, it is not necessary to make a finding on the appellant's alternative submission. If it were necessary, however, I would observe that, in my view, a failure by the Tribunal to make further inquiries does not, per se and in the absence of a statutory directive to make further inquiries, constitute jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22. Some extra element is needed to demonstrate that the decision of the Tribunal is affected by an erroneous interpretation or application of law. In this case, that element, and consequently the source of the Tribunal's error, is supplied by the circumstances I have discussed above.


case_outcome: referred to

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


case_text: One such factor is the ability to register a judgment for costs in the overseas jurisdiction. In resisting the Motion for security, the Applicants contend that the ability to register a judgment overseas has the consequence that such a judgment " will be as effective ... as it would be in the case of a plaintiff who did not ordinarily reside " overseas: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463. That was also an application for security and the case was said to raise " an important question as to the ambit of the discretion of the court to make an order for security for the payment of costs in a case where the applicant is ordinarily resident outside Australia ". Morling J reviewed the authorities, including the decision of Rath J in Connop v Varena Pty Ltd [1984] 1 NSWLR 71 and concluded at 469 70: In Connop v Varena Pty Ltd ... Rath J dealt with a somewhat similar case. In that case the plaintiff was ordinarily resident in New Zealand. There is legislation in force in New Zealand which makes it possible to enforce (by registration in that country) a judgment of the Supreme Court of New South Wales. His Honour said that an order for costs against the plaintiffs in that case could be register without difficulty in New Zealand, although there might be some delay inconvenience and expense arising from registration of the judgment. Having referred to those matters he said: "But apart from this I see no difference in regard to the costs of the first and second defendants between the circumstances of this case and those of a similar case where a plaintiff is not ordinarily resident outside this State. With only minor reservations, a judgment for costs will be as effective against the plaintiffs here as it would be in the case of a plaintiff who did not ordinarily reside outside this State: see Re Percy and Kelly (etc) Co (1876) 2 Ch D 531 , per Jessel MR, at 531." His Honour made an order for security for costs, fixing the amount of security at $750. This sum was apparently an estimate of the cost of registration and execution in New Zealand of a judgment for costs in the Supreme Court of New South Wales in favour of the defendants in the action before him. Particular reliance is placed by the Applicants upon the approach pursued by Rath J.


case_text: Estimates as to the totality of all costs from the outset and including future costs varied from $313,027.31 to $418,294.76. It may be accepted that an order for security could now be made extending to all costs, including costs incurred prior to the application for security being made: Bryan E Fencott & Associates v Eretta Pty Ltd (1987) 16 FCR 497 at 515 per French J. It may further be accepted that considerable costs have been incurred to date in the preparation of this case for hearing. Indeed, with few exceptions, it is understood that the entirety of the evidence of the Applicants and the Respondent has been filed or is ready for filing. The case has been set down for hearing for two weeks commencing on 21 July 2008.


case_text: But, as that Rule makes apparent, the fact that an applicant is ordinarily resident outside Australia is but one matter which the Court may take into account when exercising the discretion and the fact of overseas residence is not in itself decisive as to the manner in which the discretion is to be exercised. Bowen CJ in CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 5 has thus observed: Counsel for the respondent also asked for an order for security for costs to be made against CBS (UK), CBS Inc and Mindbangles Inc in accordance with O 28, r 3(1)(a). This rule certainly gives a discretion to the court to make an order for security. However, it appears to me that it is a discretion to be exercised upon rational grounds and any party applying for security carries the onus of establishing a case showing that security should be granted. The fact that an applicant is ordinarily resident outside Australia is a precondition to an application under that part of the rule but is not sufficient in itself, in my view, to induce the court to exercise its discretion to make an order...


case_title: Connop v Varena Pty Ltd (1984) 1 NSWLR 71