case_text: The Federal Magistrate referred to the Tribunal's reasons and the respective submissions of the parties. He referred to authorities ( Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1) (" NABE ") which had considered whether a failure to deal with a claim amounted to jurisdictional error.


case_outcome: referred to

case_title: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 74 ALJR 405

case_text: As the Minister submitted, there is a question as to whether this case really raises an issue of relocation. If, on the Tribunal's findings, the appellant had a well-founded fear of persecution in Nigeria it was only if he resided in Kano or perhaps other cities or towns in the northern part of Nigeria. He had not done that for about three years prior to his departure from Nigeria. He had a certificate stating that he is a native of Ibadan in Oyo State and the Tribunal member found that there was no reason for him to return to Kano or any of the other northern Islamic states. It is fairly arguable that Kano is not part of the appellant's home area ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 74 ALJR 405 at 410-411 [27] - [28] .


case_text: The Federal Magistrate referred to the Tribunal's reasons and the respective submissions of the parties. He referred to authorities ( Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1) (" NABE ") which had considered whether a failure to deal with a claim amounted to jurisdictional error. 29 There can be no doubt, as the appellant submitted, that the Tribunal was required to review the delegate's decision (s 414) and a failure by the Tribunal to deal with a "substantial, clearly articulated argument relying on established facts" made by an applicant will constitute jurisdictional error because it constitutes a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at 1092 [24] - [25] per Gummow and Callinan JJ. A judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at 22 [68].


case_text: The appellant's third and final submission was that in considering relocation the Tribunal member failed to consider the appellant's symptoms of post-traumatic stress and the difficulties he would experience in terms of relocation in view of those symptoms. I was referred to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCA 3 ; (2006) 150 FCR 448.


case_title: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437


case_title: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448


case_text: The High Court recently considered the issue of relocation in SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659. The appellant was a journalist in the Ukraine. He had a well-founded fear of persecution in the city of Chernovtsy. However, the Tribunal held that he could relocate within the Ukraine if he avoided working as a journalist. The High Court said that the Tribunal's approach involved an error of law. Gummow, Hayne and Crennan JJ said (at 1665-1666 [32]): The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act .


case_outcome: considered

case_text: Nor does it necessarily follow that in every representative proceeding the determination of questions concerning damage will be deferred until after liability has been determined. Of necessity, the Court has adopted a flexible approach to complex representative litigation. For example, in McMullin v ICI Australia Operations Pty Ltd [1996] FCA 991 , remoteness of loss and some questions pertaining to damages were determined as common questions. Accordingly, in the present case, even if the nature of the market resulted in only issues of causation and matters of damage being raised, it does not always mean that it is appropriate for common questions and discovery on these matters to be deferred. The reasons of Wilcox J in McMullin [1996] FCA 991 exemplify the particular complexity of representative actions and the need for flexible effective case management. 20 In my view, the material sought by way of discovery as to market structure may have a bearing on the question of liability, and production should not be deferred. Even if this conclusion is incorrect, it still does not follow that questions of market structure should be deferred until after liability questions have been determined. On closer examination it may be desirable as a matter of case management in this case to ensure that all common questions are resolved together. 21 Both Visy and Amcor submit that documents as to PPP are irrelevant because this case turns on behaviour in relation to CFP . Jarra Creek contends that the documents relating to PPP are relevant because, as is pleaded in paragraph [9B] of the Amended Statement of Claim, PPP is " the major physical input, by weight and cost, in CFP " and the major producers of PPP in Australia were related to or business units within Visy or Amcor, thereby having had a significant impact on the costs structure of CFP. 22 Paragraph [9B(d)(iii)] of the Amended Statement of Claim links PPP with CFP in relation to allegations concerning barriers to entry to the CFP market. This linkage is reinforced in paragraphs [12], [18(b)], [54(a)] and [100] of the Amended Statement of Claim. Paragraph [9B] alleges that Visy and Amcor not only have a major position with respect to CFP production and supply, but also with respect to the principal cost input into that product, namely PPP. It could be reasonably argued that this fact, if established, gives Amcor and Visy greater control of the input costs of CFP. On the face of the Amended Statement of Claim, documents concerning PPP are therefore relevant. In addition, it should be noted that Professor Rubinfeld referred to PPP as an item which would assist in deciding whether any CFP price rise occurred due to input cost variations or due to the alleged price fixing. 23 For these reasons, I am satisfied that documents relating to PPP as set out in the categories of discovery sought by Jarra Creek are relevant and should be produced subject to a variation in relation to the relevant period referred to in paragraph [14] above. 24 Visy objects to paragraph [9.2] of Jarra Creek's proposed categories to the extent that it seeks documents by reference to break-downs based on production facilities, regions, customer or industry segments and product categories. Visy contends that such detailed information has no relevance to issues in the proceedings. It also objects for similar reasons to category 9.2(c), which concerns financial analyses also involving detailed break-downs, and to category 9.2(d) on the ground that the reference to " indicator reports " is meaningless. 25 On the material presently before me I am not persuaded that the production of documents by reference to the detailed break-downs sought is appropriate or necessary at this stage. Neither am I persuaded that the financial analyses requested or the break-downs sought in relation to those analyses are appropriate for discovery. Furthermore, the expression " indicator reports " does not appear to describe or refer to any relevant documents. Accordingly, I will not require discovery of the break-down documents sought in category 9.2(c) and (d). In relation to the relevant period, I note in relation to these documents that Visy does not object to the period commencing on 1 January 1998 but says that it ought not to extend to 2006. For reasons given earlier, I consider that the appropriate period in the present case is between 1 January 1998 and mid-2006. 26 In summary, I consider that the relevant period is between 1 January 1998 and mid-2006. I do not think it ought to extend back to 1995. I am persuaded that documents relating to PPP may be relevant and that such documents ought to be produced. I do not consider it appropriate to defer questions relating to market structure on the basis that that issue only concerns damages and causation. I am of the view that the information sought relates to liability, and that, in any event, issues as to common questions concerning damages and causation ought be the subject of discovery at the same time. I also consider that category 9.2 proposed by Jarra Creek ought to be modified in the manner indicated above. 27 I direct the parties to bring in Short Minutes to give effect to these orders and I propose to reserve the question of costs until this matter has been finally determined. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 12 October 2007 Counsel for the Applicant: Mr I Wylie Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondents/Cross-Claimants: Mr P Solomon Solicitor for the Respondents/Cross-Claimants: Allens Arthur Robinson Counsel for the Cross-Respondents: Mr M O'Bryan Solicitor for the Cross-Respondents: Arnold Bloch Leibler Date of Hearing: 2 October 2007 Date of Judgment: 12 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1559.html


case_text: I discussed break fees and other "deal protection" measures, notably "no shop" or exclusivity period provisions, in Re APN News & Media Ltd (2007) 62 ACSR 400 ( APN ) at [25] [55] and to a lesser extent in Re Investa Properties Ltd (2007) 25 ACLC 1186 at [31] [35], and will not repeat what I said in those cases. Generally, a break fee is a fee payable by the target company to the acquiring company in certain circumstances in which the acquisition is not implemented. Such provisions form part of a merger implementation agreement to which the directors of the target company commit their company prior to a scheme of arrangement being considered by the target company's shareholders. When deciding whether to order that a meeting be convened or that a scheme be approved, the Court is not in a position to decide whether a merger implementation agreement was entered into in breach of the duties owed by the target company's directors. The Court could do so only on a contested hearing in which it is alleged, and sought to be proved, that by committing the target company to the merger implementation agreement, the directors breached their statutory and general law duties: see eg, Idameneo (No 123) Pty Ltd v Symbion Health Limited [2007] FCA 1832. 16 The United Kingdom, like Australia, has legislative provision for judicial approval of schemes of arrangement: Companies Act 2006 (UK) c 46, Pt 26 (ss 895 901). There, as here, there is also a specialist takeover panel (the Panel on Takeovers and Mergers) and an associated administrative document containing guidance as to an acceptable level of break fee in the context of takeovers: The City Code on Takeovers and Mergers (8 th ed, Panel on Takeovers and Mergers, 2006) and the Panel's Practice Statement No 4, r 21.2 regarding inducement fees, the effect of which I summarised in APN 62 ACSR 400 at [46]. 17 The researches of Bolnisi's counsel did not elicit anything of specific relevance to naked no vote break fee provisions from the United Kingdom. 18 In New Zealand, Part XV of the Companies Act 1993 (NZ) (ss 235 239) also provides for judicial approval of schemes of arrangement. However, solicitors for Bolnisi informed the Court that Bolnisi's New Zealand counsel advised that the Takeovers Panel in New Zealand had not had to consider the issue of naked no vote break fees, or break fees more generally.


case_outcome: cited

case_title: Re Ausdoc Group Ltd (2002) 42 ACSR 629

case_text: Two decisions of the Takeovers Panel are relevant. In Re Ausdoc Group Ltd (2002) 42 ACSR 629 a break fee was payable, inter alia, where a 90 percent minimum acceptance condition of a takeover offer was not satisfied. The Panel found the break fee provision to be unacceptable and accepted undertakings by the bidder and the target company not to enforce the provision or to pay the fee, respectively. The Panel stated (at [44]) that: "In assessing the potential for the 90% break fee to influence the decision of Ausdoc shareholders, we had regard to the fact that ... [t]he 90% break fee represents approximately 42% of [that year's] expected profit figure". The Panel had regard to the fact that payment of the break fee would mean that shareholders would not be paid a dividend for the year. The Panel accepted ASIC's submission that the break fee provision was coercive, that naked no vote break fees are to be distinguished from others, and that in the particular circumstances of the case, only a de minimis naked no vote break fee could be supported. 15 For the purposes of assessing a particular break fee, I see no distinction between the 90 percent minimum acceptance condition in Re Ausdoc Group Ltd 42 ACSR 629 and the minimum voting percentages referred to in s 411(4)(a)(ii) of the Act. The approach taken by the Panel in Re Ausdoc Group Ltd 42 ACSR 629 may have been influenced by the size of the break fee in question. Be this as it may, the view expressed in Re National Can Industries (No 1) is inconsistent with any notion that a naked no vote break fee can only be supported if it is de minimis . Overseas comparisons


case_text: In Brazen v Bell Atlantic Corp 695 A2d 43 (Del Supr 1997) ( Brazen v Bell ) the Supreme Court of Delaware made (at 49 50) the following observations that are pertinent to this question (the case concerned a stock for stock merger of equals, with reciprocal identical break fees): Plaintiff further argues that the termination fee provision was coercive. Plaintiff contends that (a) the stockholders never had an option to consider the merger agreement without the fee, and (b) regardless of what the stockholders thought of the merits of the transaction, the stockholders knew that if they voted against the transaction, they might well be imposing a $550 million penalty on their company. Plaintiff contends that the termination fee was so enormous that it "influenced" the vote. Finally, plaintiff argues that the fee provision was meant to be coercive because the drafters deliberately crafted the termination fees to make them applicable when Bell Atlantic's stockholders decline to approve the transaction as opposed to a termination resulting from causes other than the non-approval of the Bell Atlantic stockholders. We find plaintiff's arguments unpersuasive. First, the Court of Chancery properly found that the termination fee was not egregiously large. Second, the mere fact that the stockholders knew that voting to disapprove the merger may result in activation of the termination fee does not by itself constitute stockholder coercion. Third, we find no authority to support plaintiff's proposition that a fee is coercive because it can be triggered upon stockholder disapproval of the merger agreement, but not upon the occurrence of other events resulting in termination of the agreement. In Williams v Geier , this Court enunciated the test for stockholder coercion. Wrongful coercion that nullifies a stockholder vote may exist "where the board or some other party takes actions which have the effect of causing the stockholders to vote in favor of the proposed transaction for some reason other than the merits of that transaction [ Williams v Geier 671 A.2d 1368 (Del Supr 1996), 1382-83]. But we also stated in Williams v Geier that "[i]n the final analysis ... the determination of whether a particular stockholder vote has been robbed of its effectiveness by impermissible coercion depends on the facts of the case" [ Id at 1383]. 26 I referred at [11] above to Brazen v Bell in which a nearly naked no vote break fee was upheld by the Supreme Court of Delaware. The fee was US$200 million (less than one percent of the corporation's market capitalisation). I say "nearly", because another condition was that there must have been in existence a competing proposal, even though it was rejected or withdrawn. If the competing proposal came to fruition within one and a half years, however, an additional US$350 million was payable (the total of US$550 million was approximately 2 percent of the target's approximately US$28 billion market capitalisation). 27 A complicating factor was that the Supreme Court of Delaware tested the fee against a liquidated damages measure rather than the business judgment rule, because the agreement's provision had the effect of specifically requiring the application of that measure. The Supreme Court of Delaware held the fee of US$550 million to be in the nature of liquidated damages, not a penalty, because it was "within the range of reasonableness" (at 49).


case_text: As in the US, judicial consideration of break fees by Canadian courts often occurs in the context of contested litigation. Canadian courts have upheld break fees generally: see CW Shareholdings Inc v WIC Western International Communications Ltd (1998) 38 BLR (2d) 196. I was informed that counsel for Bolnisi's Canadian subsidiary company, Palmarejo, conducted a survey of plans of arrangement undertaken in Canada in 2007 and found that many included a naked no vote break fee. The evidence before the Court relevant to the naked no vote break fee in the present case 31 Bolnisi relies on the following three affidavits. The first is an affidavit of Norman Alfred Seckold, Chairman and a Director of Bolnisi, sworn 25 October 2007, paras 22 27 of which were set out in my earlier reasons for judgment (at [25]) and are summarised at [39] below. 32 The second affidavit is a further affidavit of Mr Seckold sworn 13 November 2007 in which Mr Seckold states that the terms of the MIA were negotiated at meetings on 4 April 2007 and 2 May 2007, and that at one of those meetings a partner from Freehills, representing Coeur, told him that Coeur would not enter into a transaction with Bolnisi unless Bolnisi agreed to pay a break fee triggered by a failure of its shareholders to vote to agree to the proposed Scheme. Mr Seckold stated that he agreed subject, inter alia, to Coeur's agreeing to a reciprocal break fee provision, because without it, it would be open to Coeur shareholders to frustrate implementation of the Scheme by not passing the resolution to increase the number of the authorised shares in the capital of Coeur. Mr Seckold states that he took the view that without the provision for the Coeur break fee, the Coeur shareholders would have "a free option over the scheme".


case_text: In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson & Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.


case_title: HF Ahmanson & Co v Great Western Financial Corp CA 15650 (Del Ch 1997)


case_title: Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000)


case_text: I discussed break fees and other "deal protection" measures, notably "no shop" or exclusivity period provisions, in Re APN News & Media Ltd (2007) 62 ACSR 400 ( APN ) at [25] [55] and to a lesser extent in Re Investa Properties Ltd (2007) 25 ACLC 1186 at [31] [35], and will not repeat what I said in those cases. Generally, a break fee is a fee payable by the target company to the acquiring company in certain circumstances in which the acquisition is not implemented. Such provisions form part of a merger implementation agreement to which the directors of the target company commit their company prior to a scheme of arrangement being considered by the target company's shareholders. When deciding whether to order that a meeting be convened or that a scheme be approved, the Court is not in a position to decide whether a merger implementation agreement was entered into in breach of the duties owed by the target company's directors. The Court could do so only on a contested hearing in which it is alleged, and sought to be proved, that by committing the target company to the merger implementation agreement, the directors breached their statutory and general law duties: see eg, Idameneo (No 123) Pty Ltd v Symbion Health Limited [2007] FCA 1832. 11 In Brazen v Bell Atlantic Corp 695 A2d 43 (Del Supr 1997) ( Brazen v Bell ) the Supreme Court of Delaware made (at 49 50) the following observations that are pertinent to this question (the case concerned a stock for stock merger of equals, with reciprocal identical break fees): Plaintiff further argues that the termination fee provision was coercive. Plaintiff contends that (a) the stockholders never had an option to consider the merger agreement without the fee, and (b) regardless of what the stockholders thought of the merits of the transaction, the stockholders knew that if they voted against the transaction, they might well be imposing a $550 million penalty on their company. Plaintiff contends that the termination fee was so enormous that it "influenced" the vote. Finally, plaintiff argues that the fee provision was meant to be coercive because the drafters deliberately crafted the termination fees to make them applicable when Bell Atlantic's stockholders decline to approve the transaction as opposed to a termination resulting from causes other than the non-approval of the Bell Atlantic stockholders. We find plaintiff's arguments unpersuasive. First, the Court of Chancery properly found that the termination fee was not egregiously large. Second, the mere fact that the stockholders knew that voting to disapprove the merger may result in activation of the termination fee does not by itself constitute stockholder coercion. Third, we find no authority to support plaintiff's proposition that a fee is coercive because it can be triggered upon stockholder disapproval of the merger agreement, but not upon the occurrence of other events resulting in termination of the agreement. In Williams v Geier , this Court enunciated the test for stockholder coercion. Wrongful coercion that nullifies a stockholder vote may exist "where the board or some other party takes actions which have the effect of causing the stockholders to vote in favor of the proposed transaction for some reason other than the merits of that transaction [ Williams v Geier 671 A.2d 1368 (Del Supr 1996), 1382-83]. But we also stated in Williams v Geier that "[i]n the final analysis ... the determination of whether a particular stockholder vote has been robbed of its effectiveness by impermissible coercion depends on the facts of the case" [ Id at 1383].


case_text: I discussed break fees and other "deal protection" measures, notably "no shop" or exclusivity period provisions, in Re APN News & Media Ltd (2007) 62 ACSR 400 ( APN ) at [25] [55] and to a lesser extent in Re Investa Properties Ltd (2007) 25 ACLC 1186 at [31] [35], and will not repeat what I said in those cases. Generally, a break fee is a fee payable by the target company to the acquiring company in certain circumstances in which the acquisition is not implemented. Such provisions form part of a merger implementation agreement to which the directors of the target company commit their company prior to a scheme of arrangement being considered by the target company's shareholders. When deciding whether to order that a meeting be convened or that a scheme be approved, the Court is not in a position to decide whether a merger implementation agreement was entered into in breach of the duties owed by the target company's directors. The Court could do so only on a contested hearing in which it is alleged, and sought to be proved, that by committing the target company to the merger implementation agreement, the directors breached their statutory and general law duties: see eg, Idameneo (No 123) Pty Ltd v Symbion Health Limited [2007] FCA 1832.


case_title: McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000)


case_text: In Re National Can Industries (No 1) (2003) 48 ACSR 409 the Panel stated (at [42]) that it did "not entirely reject the notion that a fee should be payable if and when a proposal the directors have endorsed is rejected by shareholders", and that "[a]s GN7 put it, such a fee may be an appropriate price to secure an opportunity broadly in the nature of an option" [the reference to GN7 is a reference to the Panel's Guidance Note No 7: Lock-up Devices ]. Later, at [51], the Panel again referred to the naked no vote break fee as "in effect the price paid to secure the opportunity for shareholders to consider the proposal". The review Panel (at [33]) expressly agreed with the former statement by the original Panel. 15 For the purposes of assessing a particular break fee, I see no distinction between the 90 percent minimum acceptance condition in Re Ausdoc Group Ltd 42 ACSR 629 and the minimum voting percentages referred to in s 411(4)(a)(ii) of the Act. The approach taken by the Panel in Re Ausdoc Group Ltd 42 ACSR 629 may have been influenced by the size of the break fee in question. Be this as it may, the view expressed in Re National Can Industries (No 1) is inconsistent with any notion that a naked no vote break fee can only be supported if it is de minimis . Overseas comparisons


case_title: Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993)


case_title: Revlon Inc v MacAndrews & Forbes Holdings Inc 506 A2d 173 (Del 1986)

case_text: In the United States (US), there is no régime comparable to that of the United Kingdom or Australia. In the US questions of the legitimacy of break fees arise in litigated contests, notably in the Delaware Court of Chancery and, on appeal from it, the Supreme Court of Delaware. Consequently, break fees have been considered in Delaware in the factually rich matrix of (often disputed) evidence. In those cases, the plaintiff is often a competing bidder or an aggrieved stockholder who assumes the task of proving a breach of the target company's directors' fiduciary duty to obtain the highest price for the target's shareholders, and not to allow any conflict of interest or other factor to interfere with their doing so, as recognised in Revlon Inc v MacAndrews & Forbes Holdings Inc 506 A2d 173 (Del Supr 1986). 20 This is a very different situation from that which prevails in applications under s 411 of the Act, even after allowance is made for performance of the plaintiff's duty to draw the Australian Court's attention to matters that might point against approval. 21 The Delaware cases have recognised the tension that potentially exists between "the business judgment rule" and the fiduciary duty of the directors. The business judgment rule cautions against the courts' substituting their opinion as to where the commercial interests of the corporation and its shareholders lie for the opinion of the directors.


case_text: So called "break fees" have worn different names, particularly in the US ("termination fees", "inducement fees", "cancellation fees"). The amount payable sometimes varies according to the circumstances in which it becomes payable, the amount being less in the naked no vote situation. For example, In re Toys "R" Us Inc Shareholder Litigation 877 A2d 975 (Del Ch 2005) ( Toys "R" Us ), the break fee in one offer was described as follows (at 996): The Company offered to pay the KKR Group [the acquiring company] 3% of the Company's equity value, as implied by the final deal terms. The payment of the 3% was, from what I can discern, to be made only when: 1. the Company's board terminates the merger agreement to accept a higher bid or the KKR Group terminates because the board had withdrawn its recommendation of the merger; 2. another offer to acquire the Company exists at the time the Company's stockholders vote on the merger, the Company's stockholders do not approve the merger agreement, and the Company consummates an alternative transaction within the next year; or 3. another offer to acquire the Company exists at the time the merger agreement terminates automatically by having reached its termination date, September 15, 2005, and the Company consummates an alternative transaction within a year. In the event that the merger agreement was terminated simply because the Company's stockholders voted it down, the Company offered only to reimburse the KKR Group for a to-be-negotiated sum approximating its documented, out-of-pocket expenses. 23 In Toys "R" Us, the target company "agreed to pay only up to US$30 million in documented expenses", less than half of a percent of the equity value of the company, upon the occurrence of a naked no vote (at 997). On the other hand, a full termination fee "payable for the most part only if the company terminated the merger agreement in order to sign up another acquisition proposal within a year" was US$247.5 million (3.75 percent of equity value and 3.25 percent of enterprise value) (at 997). Although the Court did not scrutinize the naked no vote fee in its opinion, it did observe (at 1023): [T]he bottom line is that the public stockholders will have an opportunity tomorrow to reject the merger if they do not think the price is high enough in light of the Company's stand-alone value and other options. If the stockholders vote no, the only price will be the payment of $30 million to KKR Group, which is likely less than its actual expenses to date. 24 It seems to follow that in Toys "R" Us the Court did not view the naked no vote break fee provision with disapproval. 25 In 2007, a Project Report of the Mergers & Acquisitions Market Trends Subcommittee of the Committee on Negotiated Acquisitions of the American Bar Association's Section of Business Law was released, entitled "2007 Strategic Buyer/Public Target Mergers & Acquisitions Deal Points Study". The study relates to transactions and acquisitions announced in 2005 and 2006. It found that nine percent of 2005 and 2006 acquisitions involved naked no vote break fees. The report also found that out of the 18 transactions that contained a naked no vote trigger, 17 required reimbursement of expenses only (as was the case in Toys "R" Us, for example), rather than the higher break fee payable in other contexts.


case_title: Ball v Pearsall (1987) 10 NSWLR 700

case_text: At a meeting convened under s 411 all members are entitled to vote, even if some of them would not be entitled to do so at a general meeting of a company. Without more, the quorum for the meeting would be that required at common law for the meeting of the members of an unincorporated voluntary association of individuals in the absence of a consensual arrangement to the contrary, all of the members: see, for example, Green v The Queen (1891) 17 VLR 329; Municipality of St Leonards v Williams [1966] Tas SR 166; and Ball v Pearsall (1987) 10 NSWLR 700. Obviously, there is no question here of the members having consented to fewer members than all being the quorum for a scheme meeting.


case_title: Green v The Queen (1891) 17 VLR 329


case_text: Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ). 44 Finally, in United Medical Protection [2007] FCA 631 , Finkelstein J considered that while there might be different categories of membership of the medical defence organisations that were before him (both were companies limited by guarantee, whose members were medical practitioners) there was for each organisation but one "class" for the purposes of s 411 of the Act, because the categories of members were not "so dissimilar as to make it impossible for them to consult together with a view to their common interest" (at [15]). 45 It was my opinion that the different categories of members of PGA and PGA Tour have so much in common that it was not necessary or indeed appropriate that there be separate meetings of the various classes of them. The differences between their rights pale into insignificance when compared with their community of interest in the question whether their association's activities, assets and liabilities should be combined with those of the other association, and whether they should all become members of the new merged entity, in less numerous and simplified classes closely resembling, albeit not identical to, the existing classes. It should not go unremarked that if separate meetings were held, it would be possible, for example, for any of the 27 classes, with only, say, two members, to veto the proposal, even though all of the 1,446 Full Members of PGA and all of the 157 Full Members of PGA Tour agreed to it. 46 I did not think that separate class meetings were called for.


case_title: Municipality of St Leonards v Williams [1966] Tas SR 166


case_text: In Nordic Bank plc v International Harvester Australia Ltd [1983] 2 VR 298, the Full Court of the Supreme Court of Victoria said (at 301): It is appropriate that creditors who share an interest via-à-vis the company which places them in a position distinct from that of other creditors and so dissimilar as to make it impossible to consult together with a view to their common interest should be allowed to make a separate decision. To break creditors up into classes, however, will give each class an opportunity to veto the scheme, a process which undermines the basic approach of decision by a large majority, and one which should only be permitted if there are dissimilar interests related to the company and its scheme to be protected.


case_text: The Court's power to make an order with respect to the holding and conduct of scheme meetings was considered by McLelland CJ in Eq in Re Australian Consolidated Press Ltd (1994) 14 ACSR 639. His Honour stated (at 640): The power of the court under s 411 is limited by the terms of that section, and the constitutional source of the power of any meeting convened under that section is the section itself, activated by the order of the court. Such a meeting is not a general meeting of the company, even if it happens that all the persons and the only persons entitled to attend it are the members of the company. It is a meeting which is convened for a specific statutory purpose and which is subject to provisions different from those to which a general meeting of the company convened under its articles of association is subject. The court can, pursuant to s 1319 of the Corporations Law, give procedural directions in relation to such a meeting which may not correspond with the procedural requirements of a general meeting of the company convened under its articles of association. 32 The statutory power to which his Honour referred is now found in s 1319 of the Act, which provides: Where, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit. 33 I was of the view that the Court should, for the purpose of r 3.3(2) of the Rules, "otherwise order". Accordingly, I ordered, having regard to the provisions in the articles in the two constitutions, that the quorum at the two Scheme meetings be simply 20 PGA Members present in person or by proxy, or 20 PGA Tour Members present in person or by proxy, as the case may be. 34 A particular matter addressed in the Scheme Book, to which Mr Oakes drew my attention, is the question of classes of members. PGA has 21 classes of members. However, this statement does not adequately reflect the position. For example, one class, "International Member", comprises only two members, as does the class "Student Member", whereas the class "Full Member" accounts for 1,446 of the total of 2,344 PGA Members. There are several classes that have no members and several others are considered redundant and are no longer used. 35 PGA Tour has six classes of members. Of the total membership of 178 PGA Tour Members, 157 belong to the "Full Member" class. The next largest class is that of "Life Member" which has only 11 members. There are, in addition, six "Honorary Members", four "Affiliate Members" and no "Restricted Members" or "Temporary Members".


case_text: In UDL Argos Engineering & Heavy Industries Co Ltd v Li Oi Lin [2001] 3 HKLRD 634, Lord Millett NPJ (with whom Li CJ, Bokhary, Chan and Ribeiro PJJ agreed) set out, inter alia, the following principles (at [27]): (2) Persons whose rights are so dissimilar that they cannot sensibly consult together with a view to their common interest must be given separate meetings. Persons whose rights are sufficiently similar that they can consult together with a view to their common interest should be summoned to a single meeting. (3) The test is based on similarity or dissimilarity of legal rights against the company, not on similarity or dissimilarity of interests not derived from such legal rights. The fact that individuals may hold divergent views based on their private interests not derived from their legal rights against the company is not a ground for calling separate meetings. (4) The question is whether the rights which are to be released or varied under the Scheme or the new rights which the Scheme gives in their place are so different that the Scheme must be treated as a compromise or arrangement with more than one class. Barrett J quoted this and other passages from Lord Millett's judgment with apparent approval in Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485 ; (2006) 57 ACSR 791 at [69] .


case_title: Re Stork ICM Australia Pty (2007) 25 ACLC 208

case_text: Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ).


case_title: Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581


case_title: SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470


case_text: In the leading authority on the question of classes, Sovereign Life Assurance Co v Dodd [1892] 2 QB 573, there was a question whether a life assurance company's creditors, who were policy holders, should be required to consider a scheme in one meeting of all creditors or in two meetings: one meeting of the holders of policies that had matured and the other of the holders of policies that were yet to mature. In the former case but not the latter, the holder would have become absolutely entitled to be paid a specific amount. The Court of Appeal agreed with the primary Judge that separate meetings should have been held. Bowen LJ stated (at 583): If we are to construe the section as it is suggested on behalf of the plaintiffs it ought to be construed, we should be holding that a class of policy-holders whose interests are uncertain may be a mere majority in value override the interests of those who have nothing to do with futurity, and whose rights have been already ascertained. It is obvious that these two sets of interests are inconsistent, and that those whose policies are still current are deeply interested in sacrificing the interests of those whose policies have matured. They are bound by no community of interest, and their claims are not capable of being ascertained by any common system of valuation. Are we, then, justified in so construing the Act of Parliament as to include these persons in one class? The word "class" is vague, and to find out what is meant by it we must look at the scope of the section, which is a section enabling the Court to order a meeting of a class of creditors to be called. It seems plain that we must give such a meaning to the term "class" as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest. If that be so, in considering the deed of arrangement made with the company which took over the business of the Sovereign, we must so construe it as not to include in one class those whose policies had already ripened into debts, and those whose policies might not ripen into debts for years to come; for the position of a person like the defendant, who had an ascertained sum of 2000 l . due to him from the company, was entirely different from that of those policy-holders whose future was entirely uncertain. It was, therefore, not right to summon as members of one and the same class those who had an absolute bar against any claim of the company and those who had not.


case_title: UDL Argos Engineering & Heavy Industries Co Ltd v Li Oi Lin [2001] 3 HKLRD 634


case_text: It is clear from a review of these provisions, the rules as they are to be applied by the Supreme Court express the court's discretion to order the consolidation or case management of proceedings more broadly than the counterpart rules in this Court. As r 28.5(a) and (b) combine to make clear, there is no specific principle requiring consolidation, nor any specific limitation against ordering it: A Goninan & Co Ltd v Atlas Steel (Aust) Pty Ltd [2003] NSWSC 956. 101 If any of the conditions in r 28.5(a), (b) or (c) are met, proceedings may be consolidated (or dealt with in any way outlined in the rules) despite the fact that they have completely different parties.


case_title: AMP Financial Planning v Green [2004] NSWSC 1099 ; (2004) 51 ACSR 693

case_text: The requirement of s 5(4) of the Cross-vesting Act is the existence of 'related proceedings' between the court in which the application is made and the court to which the matters are being sought to be transferred. The authorities on this issue establish that there do not need to be identical parties to the two, or more, proceedings before they can be considered to be 'related' for the purposes of enlivening the cross-vesting power of the court. It is enough that the proceedings have one common party and involves common issues and common questions: Watson v CGU Insurance Limited [2006] FCA 1630 ; AMP Financial Planning Pty Ltd v Green [2004] NSWSC 1099 ; (2004) 51 ACSR 693. Related Proceedings - Identical Parties, Common Facts and Common Issues


case_text: On 11 December 2007, Greenwood J heard two motions in the Bank's Federal Court proceeding. By the first, the OMB parties sought an order pursuant to s 5(4) of the Cross-vesting Act that the proceeding be transferred to the Supreme Court. By the second, the Bank parties sought an order that particular paragraphs of the defence of the OMB parties be struck out, although, in submissions, the order sought was more confined. On 7 March 2008, his Honour re-opened the hearing to hear further evidence on the transfer motion and on 12 March 2008, he dismissed the transfer motion and ordered that a number of paragraphs of the defence of the OMB parties be struck out: Bank of Queensland Limited (ACN 009 656 540) v Industrial Court of New South Wales (2008) 170 IR 427.


case_text: Subsequently, on 19 September 2008, Logan J ordered that a number of paragraphs of the amended defence of the OMB parties be struck out: Bank of Queensland Limited v Industrial Court of New South Wales (No. 2) [2008] FCA 1435. 18 On 25 September 2008, the OMB parties filed an application for leave to appeal from the judgment of his Honour, Logan J, and that application, together with any ensuing appeal, will be heard by a Full Court on 26 November 2008. In the meantime, Greenwood J vacated the dates for the hearing of the Bank's Federal Court proceeding commencing on 13 October 2008, pending the hearing of the leave application and any ensuing appeal from Logan J's judgment. 19 This is the state of play in the Bank's Federal Court proceeding at the time of writing these reasons. 20 Traderight (New South Wales) Pty Ltd ('Traderight') (together with a number of individuals) commenced proceedings in the Equity Division of the Supreme Court claiming relief pursuant to ss 82 and 87 of the TPA; ss 68 and 72 of the FTA (NSW); s 106 of the IR Act; s 12GM of the Australian Securities and Investment Commission Act 2001 (Cth) ('the ASIC Act'); and damages for breach of contract and breach of duty, in relation to an OMB Agreement between the Bank and Traderight to establish an owner managed branch of the Bank in Castlereagh Street, Sydney ('the Traderight Supreme Court proceeding'). The amended statement of claim sets out a series of meetings between Bank representatives and a number of the plaintiffs, a sequence of contended representations at various times, reliance upon the representations, the falsity of those representations, detriment and consequential loss and a claim for remedial orders. The pleading contends that particular agreements including the OMB Agreement arising out of the particular events are susceptible of orders declaring the agreements void ab initio (among other orders). 27 The OMB parties seek that all the matters (including the Bank's Federal Court proceeding) be heard by one court and one judicial officer; the Supreme Court (as being the only court that can hear all matters). Greenwood J did not agree to transfer the Bank's Federal Court proceeding to the Supreme Court. The next best thing the OMB parties can ask for (in order to avoid multiple trials of fact on the same issues and involving the common parties, witnesses etc), is that the rest of the related matters be transferred to the Supreme Court. 28 Further, any proposal put forward in relation to cross-vesting must deal with the reality of the Traderight proceedings and the fact that the only court that can hear the entirety of the Traderight proceedings is the Supreme Court. 29 The Traderight proceedings are entirely unaffected by the Bank's Federal Court proceeding. The Traderight Group is not a party to that proceeding. 30 The Bank's preliminary attempt to strike out the s 106 component of the Traderight proceedings failed. This means that, regardless of what Greenwood J decides in respect of the Bank's 'constitutional challenge', the s 106 issue will be alive in the substantive proceedings in respect of at least the Traderight proceedings that are already before the Supreme Court. 31 The only court that has jurisdiction to hear all aspects of the case is the Supreme Court. The Bank accepts that this Court does not have jurisdiction to hear the s 106 claims. 112 When I put this to senior counsel for the Bank parties during the hearing of the motions, he responded: 'It's an issue which we ventilated with his Honour Logan J the week before last in the strike-out application. It's a complex argument. We don't intend, if your Honour doesn't mind, ... to ventilate it fully before your Honour but we can tell your Honour it's been raised with his Honour Logan J as part of the strike-out application.' 113 His Honour's (Logan J's) response to that ventilation is instructive. At [19] of his Honour's reasons, he observed: 'There is Full Bench authority in the New South Wales Industrial Commission, in Court Session, which would support an argument that "the making of representations known to be acted upon by a person in considering entry into a contractual relationship and on the basis of which representations an agent as the representor intends the person to act may well, quite apart from any other connection with the contract subsequently made, be itself an arrangement whereby work is performed in an industry, or, at the least, a collateral arrangement to such a contract or arrangement": Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420, at 432, [28]. Contrary to the submission of the BoQ parties, it is thus not impossible for a representation to constitute an "arrangement". Further, if it is one, as the amended summons apparently alleges, and the submissions of the BoQ parties seem to ignore, whereby a person performs work in an industry, that arrangement, if unfair, may, all other things being equal, be the subject of relief under s 106 of the NSW Act. The Independent Contractors Act may or may not intrude on the ability to grant that relief, but that is not a matter for summary resolution.' 114 For these reasons, I do not think there is any utility in adjourning these motions to await the outcome of the Bank's Federal Court proceeding. It would be a total injustice to the OMB parties; at its present rate of progress, it could take years. For the same reasons, it is more appropriate (there can be no argument that the Rossmick Federal Court proceeding and the Jude Federal Court proceeding are respectively related, in the relevant statutory sense, to the Rossmick IC proceeding and the Jude IC proceeding) that these proceedings be determined by the Supreme Court; the same court will then hear all four proceedings. 115 On this basis alone, I am of the view that these proceedings should be transferred to the Supreme Court.


case_title: Bishop v Bridgelands Securities Pty Ltd (1990) 25 FCR 311

case_text: The Bank parties submitted that in considering whether the proceedings would be consolidated or heard together, similar issues arise under Rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) as would arise on an application for joinder in reliance on O 6 r 2(b) of the Federal Court Rules . Matters relevant to the exercise of the discretion in respect of the latter rule were considered by Wilcox J in Bishop v Bridgelands Securities (1990) 25 FCR 311. Of particular relevance to this application is the passage at 314 315 where his Honour said: 'Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.' 67 It is inherent in the OMB parties' submissions that they propose to lead evidence from the OMB parties, the Traderight applicants and, it seems, others which will fall into the category of evidence governed by s 97 of the Evidence Act 1995 (Cth) . That is, it appears to be the OMB parties' intention to call evidence from one person that representation X was made to that person for the purpose of persuading the Court that it is more likely that the same representation was also made to one or other of the various applicants. 103 The Bank parties drew the Court's attention to a selected passage in Bishop 25 FCR, where Wilcox J considered matters relevant to the exercise of the Court's discretion. This case was decided by reference to O 6 r 2 of the Federal Court Rules so it cannot be relied upon as authoritative on how the Supreme Court is likely to make future case management decisions with respect to these matters under r 28.5 of the Uniform Civil Procedure Rules . 104 In any event, the case assists the OMB parties cross vesting motion, as the following excerpt at 314 indicate: 'As the discretion conferred by sub-rule (b) is, in terms, unconfined, it would be inappropriate to specify circumstances in which it might be applied. Everything must depend upon the facts of the particular case. But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be the most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under sub-rule (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, if would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case.' 105 It is clear that the OMB parties in the proceedings before this Court and the plaintiffs in the Traderight proceedings are all represented by McCabe Terrill Lawyers.


case_text: There is no attempt in the OMB parties' material to identify with precision the evidence which falls into this category. There are merely general assertions. For evidence to be admissible under s 97(l) of the Evidence Act , it must have significant probative value. In determining whether evidence has significant probative value, the Court would take into account the differences in the representations alleged to have been made as well as the timing of the representations (cf. Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 106 FCR 51 at 69 71). 69 To the extent that an assumption can be made that the evidence of various of the OMB parties will reflect the allegations in their statements of claim, then it is apparent that there are substantial differences with respect to representations said to have been made to the OMB parties in the respective proceedings. 70 From the Traderight statement of claim, it is apparent that the Traderight proceedings concern events occurring between 28 January 2004 and 30 August 2006. There are 26 meetings pleaded and in 23 of them, representations are said to have been made. Those claimed to have made representations are Mr Allsop, Ms Quinn, an unnamed branch manager from New Farm, Mr McCarthy, Mr Liddy, Mr Teitzel, Mr McEvoy, Mr O'Brien, Mr Edwards, Ms Smith and Mr Ferguson.


case_text: On 8 April 2008, Spender J granted leave to the OMB parties to appeal against Greenwood J's judgment. The Full Court that heard this appeal rightly construed it as being restricted to challenging the orders of the primary judge made on the strike-out application; indeed, it was common ground that no appeal could be brought against an order dismissing an application to cross-vest proceedings to another court under the Cross-vesting Act: s 13 of that Act. On 23 May 2008, the appeal was allowed in part; a number of paragraphs of the defence of the OMB parties were struck out with the OMB parties being granted leave to re-plead generally: Rossmick No. 1 Pty Ltd v Bank of Queensland Limited [2008] FCAFC 81. 15 On 19 June 2008, Greenwood J set the Bank's Federal Court proceeding down for hearing on 13 October 2008. On 7 July 2008, the OMB parties filed and served an amended defence and on 14 July 2008, the Bank parties filed a motion seeking to strike out a number of paragraphs of the amended defence. This motion was heard by Logan J on 18 and 22 July 2008 when his Honour reserved. 16 This was the state of play in the Bank's Federal Court proceeding when the transfer motions in the Rossmick Federal Court proceeding and the Jude Federal Court proceeding referred to in [1] above came before me on 7 August 2008.


case_title: Watson v CGU Insurance Limited [2006] FCA 1630


case_text: the Federal Court has power to grant an order in the nature of a Mareva order is established by cases such as Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380. The Court being one established by the Parliament pursuant to the Constitution and the Federal Court of Australia Act 1982 (Cth) (Federal Court of Australia Act), the source of power is to be found in s 23 of the Federal Court of Australia Act. It may be described aptly as part of the Court's incidental jurisdiction.


case_title: Commissioner of State Taxation West Australia v Nechold Pty Limited (1995) 30 ATR 69 Jetwest Limited v Haddican (1992) 2 All ER 545

case_text: order in the nature of a Mareva injunction in support of a costs order, and even a costs order prior to taxation of costs, is not unprecedented: see Commissioner of State Taxation West Australia v Nechold Pty Limited (1995) 30 ATR 69 at 72(a); see also Jetwest Limited v Haddican (1992) 2 All ER 545 at 548(g). The evidence read establishes, prima facie, a reasonable basis to suppose that, after 14 August 2009, and at a time when the order made that day had been drawn to his attention, if only at the behest of process servers engaged by the Australian Government Solicitor, Mr Owen has embarked upon a process of liquidating assets and so doing with a view to departing the jurisdiction. Of particular note, in that regard, again prima facie, is the offering for sale of a BMW motor vehicle, registration number "TXT", at what, it seems, is a considerable discount from what one might regard as the usual sale price for a vehicle of that make, age and kilometrage ($157,000 compared with an offering for sale of $129,000). Other items of personal furniture also seem to be being offered for sale via the internet by Mr Owen. The amount which is sought by way of freezing of assets is up to $150,000. The time for return of an order is given the ex parte nature of the application made today, necessarily short. It will be 1 October 2009 at 9.30am.


case_outcome: followed

case_text: this instance, the application is one in respect of a costs order. I am satisfied that the effect of the order as to costs, which I made on 14 August 2009, is indeed one which subjects Mr Owen to a joint and several liability: see in that regard Thiess Watkins White Construction Limited (in liquidation) v Witan Nominees (1985) Pty Limited (1992) 2 QR 452 , and Trade Practices Commission v Nicholas Enterprises Pty Limited No 3 (1979) 42 FLR 213 at 223 and 224.


case_title: Trade Practices Commission v Nicholas Enterprises Pty Limited No. 3 (1979) 42 FLR 213


case_outcome: applied

case_text: When I was delivering my judgment ex tempore in this matter on 12 April 2006, it occurred to me for the reasons I then gave ( Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [34] - [35] ('the first judgment') that charge 2 was bad for duplicity: Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467. Then Dixon J said (59 CLR at 489-490): 'For, in many cases, evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law. It cannot be enough to require the complainant to elect among the instances he has proved after his evidence has been given in full. Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham ((1909) 1 KB 626; 100 LT 493), the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice . But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.' (emphasis added) 2 On 12 April 2006 I directed the applicant to file and serve by 19 April 2006 written submissions as to whether charge 2 was bad for duplicity, whether it ought be amended and if so what amendment was sought. The applicant applied to amend charge 2 in its submissions dated 18 April 2006. I also directed the respondent to file and serve any submissions in response by 28 April 2006. The respondent has not filed any submissions. 3 The applicant has submitted that the principle in Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467 is designed to prevent unfairness and prejudice. It seeks to amend charge 2 so as to read: '2. The Respondent is guilty of contempt of Court in that in breach of the order referred to in paragraph 1 herein, the Respondent has from 16 December 16 February, 200 5 6 (Being the date first date on which there is evidence in respect of symbol and wording (i.e., the 'sign') on the Website (Tab 3, [15]-[16]) used and displayed a sign, symbol and device on the website www.naturalfloorcoverings.com.au ('Website') that is the same or substantially identical with the Applicant's registered Trade Marks Numbered 981970 and 1013021, including the following: 4 The applicant contends that the use of the sign which appeared in the sequence described in the first judgment ([2006] FCA 518 at [4]-[9], [30]-[33]) as alleged in the amended charge 2 is to be treated as a single act rather than a sequence of acts. The whole sequence, it was argued, constituted a depiction which, when taken together, amounted to the display of one sign which was the same or substantially identical with the sign specified in order 1 and amended charge 2. 5 I am satisfied that in the circumstances of this case no injustice has been caused to the respondent by allowing the hearing to have proceeded as it did notwithstanding the duplicity in charge 2. Here, the facts were substantively unchallenged. Rather, it was the interpretation of the unchallenged facts which was in issue. The applicant has identified the evidence on which it relies in support of the charge as being that in Ms Than's affidavits sworn 2 March 2006 (pars 16(a)-(e)) and 20 March 2006 (pars 4-9) and Mr Dowe's affidavit sworn 3 March 2006 (pars 19-20 and the screen grabs at pages 36-37). 6 The amendment of charge 2 which has been sought will confine the unchallenged evidence to a narrower use for a shorter period than before. The respondent has had ample opportunity to consider his position and has made no submissions as to the course I should follow. 7 I am of opinion that in the circumstances and for the reasons above, I should allow the amendment of charge 2 as sought ( Johnson v Miller (1937) 59 CLR at 489: cf John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 519-521; s 51 of the Federal Court of Australia Act 1976 (Cth); see too s 22). 8 I will allow the respondent the opportunity to consider whether he wishes to call any evidence and to make submissions as to whether he ought be permitted, if he so chooses, to further cross-examine in respect of amended charge 2. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 9 May 2006 Counsel for the Applicant: CD Freeman Solicitor for the Applicant: Purcell Lawyers Respondent: In person Date of Hearing: 12 April 2006 Date of Final Submissions: 18 April 2006 Date of Judgment: 9 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/519.html


case_outcome: affirmed

case_text: By a notice of appeal filed on 21 April 2008, the appellant has attempted to appeal from a judgment of the Federal Magistrates Court in Pothuwila v Minister for Immigration and Anor [2008] FMCA 345. The judgment was given on 31 March 2008. The learned federal magistrate dismissed the appellant's application to the Federal Magistrates Court and ordered the appellant to pay the costs of the first respondent to that proceeding, also the first respondent to this proceeding, the Minister for Immigration and Citizenship. 2 The history of the proceeding is as follows. The appellant made an application to the relevant department on 1 August 1997 for a visa under the Migration Act 1958 (Cth) ("the Migration Act ") of the kind known as a Sri Lankan (Temporary) (Class TT) visa. The reason for the application appears to have been that a previous visa that had been granted to the appellant had expired on 31 July 1997. A delegate of the then relevant Minister refused to grant the visa. The appellant applied to the Migration Internal Review Office, which affirmed the delegate's decision. 3 The letter by which the appellant was advised of this decision informed the appellant that he needed to make an application for review by the Immigration Review Tribunal within 28 days of the date of the letter. The time period was calculated on the basis of reg 5.03 of the Migration Regulations 1994 (Cth), which was later found to be an invalid regulation. It was also later held by this Court that a failure to give a notice complying with s 66(2) of the Migration Act , because of a failure to state accurately the time limit in which an application to review could be made, led to the conclusion that the obligation imposed by s 66 was never discharged and there was no valid notification of the decision. On this basis, in the absence of a statutory time limit, the application for review of the decision refusing a visa was revived many years later, when it came before the Migration Review Tribunal.


case_text: The federal magistrate then proceeded to dismiss the appeal on the basis that the appellant had no reasonable prospect of successfully prosecuting the proceeding. It seems clear that a judgment given on such a basis is an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), and that the leave of the Court or a judge is therefore required before an appeal can be brought from such a judgment. The relevant provisions of the Federal Court of Australia Act 1976 (Cth) and the relevant principles are set out conveniently in the judgments of Rares and Gordon JJ in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 (2008) 167 FCR 372 at [42] - [72] and [159]-[191] respectively. 7 Accordingly, there seems little doubt that the appellant needed to have leave to appeal. He was so advised both by the Australian Government Solicitor, acting on behalf of the first respondent, and by the registry of the Court itself, but did not file any application for leave to appeal. By O 52 r 5 of the Federal Court Rules , such an application needed to be made within 21 days after the judgment was pronounced, subject to the fixing of any later date. Not only has the appellant not attempted to make any application for leave to appeal, he has not made any application for the fixing of a later date than that prescribed by O 52 r 5, by which he might do so. 8 It was reported to me yesterday that the appellant's daughter came to the registry of the Court, handed over a bundle of material relating to the appellant's health, and informed the registry that the appellant would be unable to appear at the hearing of this proceeding today. The appellant certainly has not appeared in response to his name being called outside the courtroom. The material consists of a letter from the appellant, dated 26 August 2008, to the registrar of this Court, and a number of attachments.


case_text: In the High Court in QAAH , the majority justices pointed out at [40] that the Court has repeatedly said that proceedings of the Refugee Review Tribunal are administrative in nature, or inquisitorial, and that there is no onus upon an applicant or the Minister. Their Honours referred to a series of authorities in which this statement had been made including Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510: see Abebe at [83] [84] per Gleeson CJ and McHugh J.


case_text: After some debate, I came to the view that the question was "manifestly unsound" and did not require a notice to be given under s 78B: see Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1106 at [36] . 16 I will set out my reasons on that question later. 17 The background facts are set out in the Issues Paper supplied to the Minister to seek his decision on whether Mr Ngaronoa passed the character test and, if not, whether to cancel the visa.


case_text: In summary, the Minister must not act arbitrarily or capriciously. The satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds: see Eshetu at [145]; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-366.


case_outcome: discussed

case_text: The authorities make it clear that the Minister is not bound to proceed by reference to a direction under s 499 but it is open to the Minister to use the direction as a guide: Black v Minister for Immigration and Citizenship [2007] FCA 1249 at [19] ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at [31] . 55 I do not consider that the remarks of Besanko J in Black at [24] [27] support the proposition urged upon me by counsel for Mr Ngaronoa, that the Minister is precluded from considering, in the exercise of the discretion, matters upon which the person was acquitted in criminal proceedings. 56 What must be borne in mind is that the present case is concerned with the exercise of the discretion, not the determination that Mr Ngaronoa failed to satisfy the character test. Whilst it would not have been open to the Minister to determine that Mr Ngaronoa had a substantial criminal record on the basis of charges on which he was acquitted, that was not the question which fell for determination: cf s 501(10). 57 Having satisfied himself that Mr Ngaronoa met the precondition, namely failure to satisfy the character test by reason of the term of imprisonment of four years and six months, the question was whether it was open to the Minister to look to conduct engaged in by Mr Ngaronoa in 2006, regardless of whether that conduct was the subject of a criminal conviction. 58 In my view, the authorities to which I have referred establish that the Minister was not constrained from having regard to "general conduct" provided that it pertained to matters affecting the protection of the Australian community. In my opinion, the matter to which the Minister referred did so pertain. 59 I will deal below with the applicant's second ground, namely the question of whether, in considering the matters on which Mr Ngaronoa was acquitted, the Minister applied the correct standard of proof. 72 Although the Minister based his findings on the matters incidental to the attack on Ms Haug upon the "balance of probabilities", this must be read in light of the well-known warning against over-zealous scrutiny of the decision-maker's reasons. The statements made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, apply to the reasons of the Minister: see Black at [23]. 80 The burden of weighing these considerations was one for the Minister. It has not been established that the Minister acted outside the terms of his statutory power: see Black at [26]. 81 It was accepted on behalf of Mr Ngaronoa that he had received a summary of the protected information relating to the attack on Ms Haug. It was not contended that the summary was inaccurate or misleading. 82 What was submitted was that the letter, under which the summary was provided, did not indicate how the information contained in the summary might be used by the Minister, or how the Applicant might respond.


case_text: This ground is based upon a statement in the Minister's reasons that the standard of proof he applied in making his decision was the balance of probabilities, not the criminal standard. Mr Ngaronoa's counsel submitted that the Minister ought to have applied the Briginshaw standard: see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 12 The third ground is that Mr Ngaronoa was denied procedural fairness in relation to the use that was made of the protected information. Although the substance of the protected information was provided to Mr Ngaronoa, his counsel submitted that he was not told, nor was it apparent on the face of the material, that the conduct would be taken into account in the exercise of the Minister's discretion. 13 Mr Ngaronoa's counsel also contended that this proceeding involves a matter arising under the Constitution or involving its interpretation. A direction was sought for notice to be given to the Attorneys-General of the Commonwealth and States under s 78B of the Judiciary Act 1903 (Cth). 66 Counsel for Mr Ngaronoa submitted that in the context of administrative proceedings, the decision-maker is bound to have regard to the well-known statement of Dixon J in Briginshaw at 361-362. 67 There, his Honour drew attention in the context of curial proceedings, to the requirement that a judge should reach a state of reasonable satisfaction having regard to the seriousness of the allegations and of their consequences. Dixon J also said that "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect references. 68 In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 at [102] [103], Madgwick J considered that the observations of Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340.


case_text: The Constitutional question which was said to arise was the "guarantee" in s 80 of the Constitution to a trial by jury on indictment for an offence against any law of the Commonwealth. Reference was made to Cheatle v The Queen [1993] HCA 44 ; (1993) 177 CLR 541 at 552 and Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292, 301.


case_text: This submission is based upon the principle that procedural fairness:- "... extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion ... which would not obviously be open on the known material." See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 592. 87 In my view, this was sufficient to satisfy the test stated in Alphaone. Mr Ngaronoa was informed in the letter that the Minister could take into account the material stated in the summary of protected information in his decision to cancel the visa. The use to which the Minister could put the information was sufficiently described. This is not a case in which a fresh obligation was enlivened within the test required in Navarrete because Mr Ngaronoa was told how the material could be used.


case_outcome: distinguished

case_text: The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] . 61 I do not consider that the observations of Spender J in Haneef detract from the conclusion I have reached on the question of relevant considerations. 62 In Haneef , Spender J was concerned with the proper construction of s 501(6)(b) of the Act which states one of the criteria for determining whether a person passes the character test. 63 In particular, the question before Spender J was the proper construction of the composite phrase "has an association with someone else ... who the Minister reasonably suspects has been, or is involved in criminal conduct." His Honour considered that the proper construction of the phrase was to be ascertained from its context and purpose: see [152], [178] [179]. 64 It is true that his Honour came to the view that s 501(6)(b) required an alliance or link between the visa holder and the persons engaged in criminal activity. It is this factor which reflects adversely on the character of the visa holder: see [230]. 65 However, it seems to me that his Honour's conclusion related only to the question of whether an "innocent" association fell within the second criterion of the character test stated in s 501(6)(b). It was not concerned with the breadth of the discretion which is conferred on the Minister in the event that the necessary precondition is met: see [269] [271].


case_text: The question is one of statutory construction of s 503A. It may well be that having exercised his discretion to provide a summary of the protected information, the rules of procedural fairness applied: Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161 at [32] [34], [39].


case_text: Although the Minister based his findings on the matters incidental to the attack on Ms Haug upon the "balance of probabilities", this must be read in light of the well-known warning against over-zealous scrutiny of the decision-maker's reasons. The statements made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, apply to the reasons of the Minister: see Black at [23].


case_text: The authorities make it clear that the Minister is not bound to proceed by reference to a direction under s 499 but it is open to the Minister to use the direction as a guide: Black v Minister for Immigration and Citizenship [2007] FCA 1249 at [19] ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at [31] .


case_text: The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] .


case_text: The Constitutional question which was said to arise was the "guarantee" in s 80 of the Constitution to a trial by jury on indictment for an offence against any law of the Commonwealth. Reference was made to Cheatle v The Queen [1993] HCA 44 ; (1993) 177 CLR 541 at 552 and Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292, 301. 97 First, to the extent that s 80 provides a "guarantee", the terms of it are very limited. Any guarantee is restricted to a trial on indictment for an offence against any law of the Commonwealth. It does not provide a basis for drawing an implied guarantee that is not expressed in the section: Kingswell at 276-277. 98 Second, Mr Ngaronoa was not tried by a jury for an offence against a law of the Commonwealth. He was tried under State law. 99 Third, what underlies the submission is the proposition that an administrative decision-maker is precluded from looking at factual allegations of criminal conduct on which the person affected was acquitted. That proposition cannot be correct, except insofar as it relates to the threshold character test and s 501(10) of the Act. A different enquiry is involved in the exercise of the Minister's discretion.


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24


case_text: It seems to me to follow that the same approach must be applied to the decision of the Minister to exercise his discretion to cancel a visa. The correct approach in my opinion is that stated by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611, in his review of the relevant authorities at [130] [145]. 71 In summary, the Minister must not act arbitrarily or capriciously. The satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds: see Eshetu at [145]; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-366.


case_text: Counsel for the Minister submitted that in any event the Minister was not obliged to satisfy the requirements of procedural fairness in relation to protected information under s 503A of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450 at [30] , [90] [91]. It would follow, so it was argued, that the Minister was under no obligation to provide a summary and that procedural fairness did not require him to explain the use that could be made of the information. 93 Although the question does not arise in the present case, the consequence of the Minister's submissions is that it would be open to him, for instance, to provide an inaccurate or misleading summary of the protected information without regard to the rules of procedural fairness. I do not consider that this question was decided in Ball and am inclined to the view that the submission must be rejected.


case_text: That is not to gainsay the proposition that the decision to cancel a visa is a serious one. The practical effect of the decision is that Mr Ngaronoa will be permanently excluded under Australian law from returning here: Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 at [3] . Nevertheless in the exercise of his discretion, the Minister was entitled to determine that the protection of the Australian community outweighed all other considerations, notwithstanding his view that compassionate considerations weighed against removal.


case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505, Kiefel and Bennett JJ observed at [72] the Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a visa. Their Honours referred to a number of authorities which make it clear that a precondition for the exercise of the discretion is failure to satisfy the character test. 49 The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] . 50 In Huynh , the majority justices pointed out at [74] that a reference to the subject matter, scope and purpose confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the entry into and presence in Australia of non-citizens: see Huynh at [74]. It follows from what their Honours said that the Minister is not bound to consider the level of involvement in an offence which carries a sentence of imprisonment for the requisite term; nevertheless, he or she may do so in the exercise of the discretion. 51 It also follows, in my view from the wording of s 501 considered as a whole, and from the observations of their Honours in Huynh , that the Minister was not precluded in the exercise of his discretion, from having regard to conduct in respect of which charges were laid but on which Mr Ngaronoa was acquitted. 52 First, as is implicit in the observations of their Honours in Huynh, the object of the provision is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct.


case_text: In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 at [102] [103], Madgwick J considered that the observations of Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340.


case_text: Second, as a Full Court observed in Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194, s 501 is concerned with a person's conduct, either "general conduct" or conduct of a more particular kind which may be described as "criminal conduct". This may be seen quite clearly in s 501(6) which provides that a person does not pass the character test if he or she has a substantial criminal record (see s 501(6)(a) or is not of good character having regard to, inter alia , the person's past and present general conduct. (See s 501(6)(c)(ii)). 54 Third, Direction No. 21 states that the object of the Act is to regulate in the national interest, the coming into and presence in Australia of non-citizens. It also states that the Minister has a responsibility to protect the community from criminal and "other reprehensible conduct".


case_text: In Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 at [38] , Allsop J recognised that this principle may require the Minister to do more than merely provide a person with a copy of s 501 , Direction No. 21 and his or her criminal record. How the material is to be treated by the Department in its Ministerial recommendation may enliven a fresh obligation to bring a critical aspect to the attention of the person affected: Navarrete at [38]. 86 The Third Notice did not merely refer to the charges arising from the attack. It attached a summary of the information that the Department identified as material that might be relied upon to assess whether to exercise the discretion to cancel Mr Ngaronoa's visa. The covering letter told Mr Ngaranoa that he had an opportunity to comment on the information. It informed him that if he did not provide any further information, the Minister might rely upon the information identified in the letter to determine that the visa was liable to cancellation: see [31] above. 87 In my view, this was sufficient to satisfy the test stated in Alphaone. Mr Ngaronoa was informed in the letter that the Minister could take into account the material stated in the summary of protected information in his decision to cancel the visa. The use to which the Minister could put the information was sufficiently described. This is not a case in which a fresh obligation was enlivened within the test required in Navarrete because Mr Ngaronoa was told how the material could be used.


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355


case_title: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363


case_text: It is true, as Allsop J observed in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 at [31] , that in circumstances such as the present, procedural fairness requires an objectively adequate opportunity for the person affected to deal with the task that is presented. 89 In Sales , Allsop J considered that a period of fourteen days was insufficient for a person to respond to a notice of intention to cancel a visa. His Honour took into account the difficulties faced by a person who had spent most of his adult life in prison. His Honour also pointed to the serious personal consequences to the applicant and his family of an adverse decision by the Minister: see Sales at [32] [34]. 90 By contrast, in the present case, it seems to me that it was sufficiently clear to Mr Ngaronoa how the summary of the protected information could be used by the Minister. I have come to that view on an objective consideration of the terms of the Third Notice and the attached summary. The gravity of the allegations set out in the summary speak for themselves. I have had regard to Mr Ngaronoa's personal circumstances. I do not consider it is a matter on which evidence of his subjective thought processes would have assisted.


case_text: That passage was referred to by the High Court, with apparent approval, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2007) 231 ALR 592 at [29] , [49].


case_text: Federal Magistrate Emmett concluded that the Tribunal was not obliged to deal with claims that are not articulated and which do not clearly arise on the material before it. No claim was made to the Tribunal for persecution on the grounds of political opinion. Her Honour observed, with reference to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] , that an unarticulated claim must be raised squarely on the material available to the Tribunal before it has a duty to consider it. Her Honour also relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [1] where Gleeson CJ stated that, although the Tribunal proceedings are not adversarial, the decision of the Tribunal must be considered in the light of the basis upon which the application was made.


case_text: The Tribunal is required to deal with ' the case raised by the material or evidence before it ' ( NABE at [58] citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157). The Tribunal is not limited to the ' case ' articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE at [58]) (emphasis added). At [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: '[t] he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it ' (at [61]).


case_text: The absence of a finding of a relevant fact may amount to jurisdictional error ( NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ( NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" ( NABE at [56]). That includes a requirement to consider all of the claims of the applicants ( NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).


case_text: The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '.


case_title: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244


case_text: The applicants were represented and present at the hearing before the Tribunal. There is no basis for a suggestion that the Tribunal interfered with or prevented them from presenting their case. Nor can it be said that the conduct of the applicants' solicitor during the hearing rendered the Tribunal's invitation to appear and give evidence pursuant to s 425 of the Act ' a hollow shell or an empty gesture ' ( Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [33] ; in any event, see Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [94] , [134] and [212]). It has not been shown why the Tribunal was under any obligation to inquire into the solicitor (or migration agent)/client relationship in relation to the matters being put to the Tribunal.


case_title: Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142


case_text: The High Court discussed the task of the Tribunal in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [70] [75]. The task of the Tribunal is to review the decisions of the Minister or the Delegate. The Tribunal may affirm, vary or remit the decision, or set it aside and substitute a new decision (s 415(2) of the Act). As pointed out by McHugh, Gummow and Hayne JJ at [73], the duty of the Tribunal is to take account of all relevant considerations, as identified by the Act.