case_text: is appropriate, in my view, to seek to resolve the construction issue, despite the interlocutory nature of the motion. The hearing engaged some three days. Full argument was presented on the issue by both sides. There was no suggestion that the evidence before me, bearing on the construction issue, was other than complete. The area of contest is neither beset by difficulty or novelty: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535; Hitchcock v TCN Channel Nine Pty Ltd [2000] Aust Torts Reports p81-550 at [22]-[26].


case_outcome: cited

case_text: maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].


case_text: Honour canvassed a number of cases in which the proper construction of the language contained in the standby letter of credit, "... until the party becomes entitled to exercise a right under the contract ..." had been similarly discussed. Those authorities range from requiring no more than a claimed entitlement which is not specious or fanciful: Hughes Bros Pty Ltd v Telede Pty Ltd (1989) 7 BCL 210 to requiring that the holder of the security establish, whether by litigation or arbitration, an actual entitlement to payment of the moneys: Mitsui Kensetsu Corporation Australia Pty Ltd v State of South Australia (unreported Qld Supreme Court, 9 August 1990 per Byrne J).


case_outcome: discussed

case_text: the demands in this case are equivalent to the certificate provided by the National Australia Bank (NAB) to HSBC, certifying in effect that the conditions of the letter of credit had been met: Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467 at [14]. The Western Australian Court of Appeal held that the certificate "amounted to no more than an implied representation that it had reasonable grounds for issuing the certificate" at [51]. The reasonable grounds were the bona fide belief by NAB that the conditions were satisfied at [55]. The written demands are also analogous to the requisite statutory declaration in Fletcher Construction v Varnsdorf at p 830 to the effect that the amount claimed represented an amount(s) remaining unpaid to the owner. This was so even where the amount was disputed by the contractor. If it were the case that, on its proper construction, ONGC could not call on the guarantees until there was an admitted or established breach of contract, the time at which an arbitral tribunal or court might determine that matter could well be after the performance guarantees had expired: cf Ideas Plus Investments at [39] per Steytler P. Such a construction does not, in my view, make commercial common sense: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 at [22] and [23] per Gleeson CJ. In Ideas Plus Investments Steytler P, with whom McLure and Buss JJA agreed, concluded that the NAB was empowered to claim under a letter of credit granted by HSBC so long as it had a bona fide belief that the conditions were satisfied. The certificate by the NAB issued to HSBC certifying in effect that the conditions of the letter of credit had been met was only a representation of such a bona fide belief and perhaps that there were reasonable grounds for such a belief. [55]-[57], [105] See also Fletcher Construction v Varsdorf at p 830. Steytler P with whom McLure JA agreed held that the basis for the payment made by HSBC pursuant to its independent obligation to NAB under the letter of credit was the provision by NAB of a certificate in the required terms. It was, his Honour found, the presentation of that certificate, not the truth of the facts certified, which conditioned HSBC's obligation to pay. The provision of cll 3.2.3-3.2.5 and 8.3.5 do not, in my view, assist the construction contended for by Clough. Those concern the contractual entitlement of ONGC to withhold approval and payment of progress claims. That entitlement provides a form of security to ONGC where there is a dispute because, pending arbitration, it is not required to pay the disputed amounts to Clough. It does not inform the question of the circumstances in which the performance guarantees may be called upon. Nor do I consider that the absence of an independent certification as to the existence of a certain state of affairs to trigger the obligation to make payment advances Clough's argument on construction. That is but one type of mechanism for payment in a contract. Its absence does not assist the construction of this contract. Performance guarantees play a critical part in international commerce and in international construction contracts, in particular. So much has been recognised by the courts on many occasions: the authorities are collected by Steytler P in Ideas Plus Investments at [32]-[34]. They were, objectively viewed, of critical importance to ONGC under the Construction Contract. This is manifest in two ways. Under cl 3.2.1 of the Construction Contract, no payments become due and payable to Clough until Clough has furnished the necessary performance guarantees and the Certificate of Insurance to ONGC. This would extend to performance guarantees whose validity was required to be extended under cl 3.3.2. Furthermore, as its option, ONGC was entitled, under cl 3.3.3, where Clough failed to furnish the performance guarantee(s) to terminate the Construction Contract. Completion Date of the Works under the Construction Contract was 15 April 2006 (cll 2.2.5 and 6.3.1). The warranty period under the Construction Contract is 12 months from the date of issue of the Certificate of Completion and Acceptance (cl 6.1.1). Any performance guarantee was to be initially valid up to 14 June 2007. This was by virtue of the provisions of cl 3.3.1, which provide for the period of validity to extend from the Completion Date, plus the warranty period and a further 60 days. Each performance guarantee is expressed to be valid until 14 June 2007. In the event that completion is delayed beyond the Scheduled Completion Date, Clough was liable to extend the validity of the performance guarantees accordingly, so as to maintain the same period of validity beyond that date.


case_outcome: applied

case_title: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533


case_text: Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International Försäkrings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.


case_text: it were the case that, on its proper construction, ONGC could not call on the guarantees until there was an admitted or established breach of contract, the time at which an arbitral tribunal or court might determine that matter could well be after the performance guarantees had expired: cf Ideas Plus Investments at [39] per Steytler P. Such a construction does not, in my view, make commercial common sense: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 at [22] and [23] per Gleeson CJ.


case_title: Mitsui Kensetsu Corporation Australia Pty Ltd v State of South Australia (unreported Qld Supreme Court, 9 August 1990 per Byrne J)


case_text: in my opinion, Clough was obliged under cl 3.3.2 of the Construction Contract to extend the validity of the performance guarantees so that they would be valid for 12 months plus 60 days from the date of completion of Works as varied. On the basis of the two variations to which I have referred, Clough, within a reasonable time of the date of each variation, was required to extend the performance guarantees to 31 March 2008 and June 30 2008 respectively. What is a reasonable time is a question of fact. It depends upon the circumstances and its limit is determined by what is fair to both parties: Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537 at 567-568. I do not accept Clough's submissions that the date for Practical Completion was at large and therefore that cl 3.3.2 could not be complied with because the duration of the extension was not clear. Even if it were the case that cl 3.3.2 required Clough to extend the performance guarantees at any time prior to their lapsing, as Clough contends, it was clear as at: (a) 16 April 2007 that Clough was not then prepared to extend the performance guarantees. In a letter to ONGC it advised ONGC that it required the three performance guarantees then held by ONGC to be returned and stated that it was willing to provide a performance bond to the value of 10% of the remaining work, in the amount of US$2.17 million; and (b) 1 June 2007 that the CEO of Clough had no relevant authority from Clough's Board to extend these and in any event such authorisation was, wrongly in my view, stated by him to be subject to ONGC agreeing to "reach a negotiated exit solution". The obligation under cl 3.3.2 is not so conditioned.


case_text: to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon & MP Ellinghaus, Cheshire & Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar & Food Industries Corporation [1996] 4 All ER 563 at 571.


case_title: Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288


case_title: Quinlan v Safe International Forsakrings AB [2005] FCA 1362


case_text: particular, Clough contends that the delay in its providing the 'Christmas Trees' was caused by breach on the part of ONGC relating to the 'DHPTT Cards'. It also asserts that ONGC was in breach in other respects, such as failing to effect well-completion in relation to the deep water work and that ONGC lost the first 'Christmas Tree' and certain tools, all of which contributed to delays of the Project. The failure to undertake shallow water works, likewise, Clough says, was occasioned by breaches on the part of ONGC. It is not possible to resolve these factual questions and whether those asserted breaches were occasioned by ONGC's own breaches. This in turn gives rise to a prima facie case or a serious issue to be tried, whether based on those asserted breaches, ONGC acted unconscionably contrary to s 51AA of the TPA in calling up the performance guarantees: Reed Construction Services Pty Ltd v Kheng Seng (Australia) Pty Ltd (1999) 15 BCL 158 at 164. However, this does not determine the matter. ONGC contends that Clough is indisputably in breach of its contractual obligations in two further important respects. These concern Clough's obligations to extend the validity of the performance guarantees and to provide documentary proof that relevant insurance cover is being maintained by Clough. ONGC submits that these obligations exist, even assuming that the need for the extensions is the result of breach(es) on its part. I now turn to consider each of these. Breach of cl 3.3.2: The performance guarantees I have, again, set out cl 3.3.2 below, for ease of reference: 3.3.2 In the event completion of Works is delayed beyond the Scheduled Completion Date for any reasons whatsoever, the Contractor shall get the validity of the guarantee suitably extended so as to make it valid for 12 months plus 60 days from the actual date of completion of Works. However if the delay is attributable to the Company, Company shall bear the cost of extension of such performance guarantee for such extended period at the normal bank rates as applicable to International Banking procedures.


case_text: made demands upon the Banks, HSBC Bank Australia Limited (HSBC) in Perth and upon the Commonwealth Bank of Australia (CBA) and BNP Paribas in Sydney under the performance guarantees, on 4 June 2007, which was a Perth public holiday. These proceedings were commenced the following day. The Construction Contract was terminated by ONGC by a facsimile letter to Clough of 4 June 2007. PREVIOUS ORDERS MADE BY THE COURT (a) On 5 June 2007 an ex parte interlocutory injunction was granted against the Banks restraining each of them from making payment to ONGC under the performance guarantees. This injunction was extended on 12 June 2007 and on 19 June 2007, following an inter parties hearing, when an application by the Banks to discharge the injunction was dismissed. (b) On 7 June 2007 an ex parte interim injunction was granted against ONGC restraining it from taking further steps to demand or obtain payment, or renewing such claims or demands, from the Banks under the performance guarantees. The injunction was extended on 12 and 19 June 2007. (c) On 7 June 2007 e x parte orders for leave to serve ONGC ex juris were made. Clough has sought to restrain the calling on, or payment under, the performance guarantees for a number of reasons. The first, it submits, is that the Construction Contact, properly construed, prohibits a demand being made in the prevailing circumstances. The second, alternative, basis is that even if the Construction Contract, by its terms, does not preclude making a demand under the guarantees, nevertheless ONGC has caused or contributed to the circumstances leading to the asserted breach of the Construction Contract by Clough, upon which ONGC relies to make a demand. The third is that alternatively, ONGC's demand constituted unconscionable conduct within the meaning of the unwritten laws of Australia, in contravention of s 51AA of the Trade Practices Act 1974 (Cth) ("TPA"). Finally, it is said, that the demand served by ONGC does not conform with the criteria required of a valid demand on the proper construction of the guarantees. The terms of the performance guarantees to be entered into under the Construction Contract are contained in Appendix III (not II) of Annexure A to the Contract. Clause 3.3.3 requires to be construed in the context of the document as a whole. This includes the context of Appendix III of Annexure A: see, for example, Re Media, Entertainment and Arts Alliance, Ex parte the Hoyts Corporation Pty Limited [1993] HCA 40 ; (1993) 178 CLR 379 at 386-387. The performance guarantees prescribed by the Construction Contract accordingly promise payment even where disputes, which could include disputes as to whether or not Clough had failed to honour any of its commitments under the Construction Contract, are pending before a Court or arbitrator. This, in my opinion, is a powerful indicator that a mere claimed breach of contract, which is not fraudulently asserted is sufficient to trigger entitlement to call on the performance guarantee. Clough does not assert that ONGC has made a fraudulent claim. This construction is reinforced by the fact that, under the prescribed terms of the guarantees, the Banks are required to pay "without any demur, reservation, contest or protest and/or without any reference to the Contractor". Under the terms of the performance guarantees, each of the Banks was entitled to treat the written demand by ONGC as conclusive and binding as to the amount due and payable, notwithstanding any dispute pending before any Court, Tribunal, Arbitrator or any other authority. Liability under the performance guarantees was absolute and unequivocal.


case_text: is also for Clough to establish a case for the continuation of the injunction. No onus lies on ONGC to discharge the injunctions: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731. Accordingly, Clough requires to establish that there is a serious issue(s) to be tried. I will firstly deal with the orders sought under paragraph 1 of the Notice of Motion. This involves a consideration of whether Clough has established anew that it has a prima facie case to maintain the grant of service ex juris on ONGC and whether there are any serious issues to be tried to sustain injunctive relief, either pending a trial of issues in this Court, or were the matter to be referred to the Arbitrators in India, by way of a protective interim measure in aid of the arbitration. This, in particular, requires a detailed consideration of the following:


case_text: relation to the application to set aside service of the Amended Application on ONGC, an application under O 9 r 7 of the Federal Court Rules (FCR) results in a review of the original decision to grant leave to serve ex juris and is a rehearing conducted on the basis of additional materials, recognising that a respondent should have "the opportunity to put before the Court any additional facts or arguments which might suggest that leave ought not to have been granted": Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche Limited (2003) 130 FCR 317 at [53] per Carr J. The onus remains on the applicant to satisfy the Court, in light of those additional materials and facts and arguments, that leave should have been granted: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 at 564.


case_title: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538


case_title: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557


case_title: Western Australian v Vetter Tritter (1991) 30 FCR 102


case_outcome: followed

case_title: Bahonko v Sterjov [2007] FCA 1377

case_text: An appeal to this Court does not operate as a stay of execution or of proceedings under the judgment appealed: Federal Court Rules 1979 (Cth), O 52, r 17. The " general principle " applied in this Court is that an appeal does not operate as a stay: Bahonko v Sterjov [2007] FCA 1377 at [6] (Appl'd: Bahonko v Sterjov [2007] FCA 1556 at [8] ). But s 29(1)(b) of the Federal Court of Australia Act 1976 (Cth) does confer a discretionary power to make an order suspending the operation of an order previously made. That subsection provides as follows: Stay of proceedings and suspension of orders (1) Where an appeal to the Court from another court has been instituted: ... (b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.


case_title: Bahonko v Sterjov [2007] FCA 1556


case_text: The weight of authority in this Court is that the discretion conferred by s 29(1) is one not to be fettered by requiring the demonstration of special or exceptional circumstances: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13] per French J. An order, however, is not made " simply for the asking ": Bryant v Commonwealth Bank of Australia [1996] HCA 3 ; (1995) 134 ALR 460 at 463 per Kirby J.


case_text: Any order for security, even in a quantum less than that which is sought, it is recognised, has a real likelihood of stifling the appeal now before this Court: Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates Pty Ltd (1986) 13 FCR 46 at 52 3.


case_text: The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: • The prospects of success; • The quantum of risk that a costs order will not be satisfied; • Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; • Whether any impecuniosity of the appellants arises out of the conduct complained of; • Whether there are aspects of public interest which weigh in the balance against such an order; • Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 23 A principal submission advanced by all Respondents, and a submission in accordance with the considerations summarised by Bennett J in Croker, contended that the Notice of Appeal had such limited prospects of success as to be in itself a persuasive reason why security should be ordered. 24 The Notice of Appeal as filed sets forth some 27 grounds of appeal. Ms Lawrance was invited on 17 March 2008 to consider whether she wished to pursue all of those grounds or whether she wished to narrow or confine her appeal. On 18 March 2008 she adhered to the grounds set forth. 25 An appellant is of course entitled to raise for resolution such grounds of appeal as may properly emerge from the decision the subject of appeal. For the purposes of the present proceedings, each of those grounds have been separately considered.


case_text: Applications for security must be made, as has occurred in the present proceedings, promptly: Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68 at 71. 16 At the outset of the hearing of the two Motions seeking security, the evidence to be relied upon was, in the usual course, identified. 17 In addition, Ms Lawrance indicated that she wished to adduce evidence as to events which had occurred on 15 February 2008. She outlined the nature of the evidence that she sought to adduce. Although such evidence had not been filed in accordance with earlier directions made on 4 February 2008, Ms Lawrance indicated that she was not previously sure as to how she should proceed.


case_title: East Grace Corp v Xing [2005] FCA 219

case_text: The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: • The prospects of success; • The quantum of risk that a costs order will not be satisfied; • Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; • Whether any impecuniosity of the appellants arises out of the conduct complained of; • Whether there are aspects of public interest which weigh in the balance against such an order; • Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 49 The quantification of any order for security is " certainly not an exact science ": East Grace Corp v Xing [2005] FCA 219 at [6] per French J. 50 Relevant to any quantification is the anticipated duration of an appeal, the complexity of the issues to be addressed and the extent to which the preparation of written submissions would facilitate the expeditious resolution of the appeal. The fact is that the Notice of Appeal as filed in this Court sets forth some 27 " grounds of appeal ". A review of those grounds only supports a conclusion that the appeal would most probably take two days, if not more. It is, perhaps, inevitable that an unrepresented appellant may take longer to develop arguments and submissions than a party represented by experienced counsel. The hearing of the present Motions seeking security was heard over a two-day period. 51 The more wide-ranging the challenge to a decision on appeal, however, the greater may be the reluctance to deny to those parties who have already vindicated their position at first instance the protection of an order for security. The more confined the grounds which an appellant may wish to pursue, the less persuasive may be the consideration that an appellant is " dragging his opponent from one Court to another " and seeking to re-agitate some, if not all, of the grievances resolved at first instance.


case_outcome: considered

case_text: Ms Lawrance, however, has already had the opportunity to have her claims litigated and has lost. Although she is entitled to prosecute her appeal in this Court, different considerations apply when security for costs is ordered in respect to an appeal: Tait v Bindal People [2002] FCA 322. Spender J there outlined the principles to be applied as follows: [2] The position in relation to security for costs in the present matter is governed by s56 of the Federal Court of Australia Act 1976 (Cth). S56 provides that security is to be of such amount and given at such time and in such manner and form as the Court or Judge directs. As to whether security for costs should be ordered, Cowell v Taylor (1885) 31 Ch D 34 at 38, a case of more than 100 years ago, sets out the fundamental principle: "The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another". [3] What that passage demonstrates is that there is a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering, or the consideration of the ordering, of security for costs where one is at the appellate level. The difference is that, at the appellant level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust. [4] In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings. That consideration, it seems to me, is also reinforced by the judgment of Gummow J in Wiest v Director of Public Prosecutions and Anor [1988] FCA 568 , unreported 5 September 1988. That case involved appeals against extradition with penal consequences. Such consequences were clearly very relevant considerations, but discretionary reasons moved the Court not to order. Such discretionary considerations, which were particularly noted by Gummow J, included the delay between the filing of the papers and the bringing of the applications for security. His Honour referred to a particular circumstance which is relevant here, and that is that the applicant for security has a judgment in its favour. There was a reference by Gummow J to Bethune v Porteous (1892) 18 VLR 493 , again an old case. In that case, Hood J said (at 494): "the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful." That really is the fundamental question of justice behind my decision to order security for costs. See also: Fletcher v Commissioner of Taxation [1992] FCA 388 ; (1992) 37 FCR 288 at 290 1; Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336 at [15] .


case_text: By reason of her impecuniosity, there is considered to be a real risk that any costs order which may ultimately be made against Ms Lawrance may not be paid. Such has been the fate of the Respondents to date in other proceedings. In exercising the discretion to order that security be provided, it is relevant to take into account any outstanding costs orders which remain unsatisfied: Freeman v National Australia Bank Ltd [2004] FCA 601 at [14] . Ms Lawrance has not paid the costs ordered to be paid by the Federal Magistrate, including not only the orders as to costs in favour of the present Respondents, but also orders as to costs made by the Federal Magistrate against Ms Lawrance in favour of persons not parties to the proceedings before that Court. Those costs orders included, for example, an order that Ms Lawrance pay the costs incurred by the Chief Executive Officer of Phillips Fox in relation to the unsuccessful application for their joinder as parties to the Federal Magistrates Court proceedings. A like order for costs was made against Ms Lawrance in favour of Dr Margaret Pickles in relation to an unsuccessful application for joinder.


case_text: The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: • The prospects of success; • The quantum of risk that a costs order will not be satisfied; • Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; • Whether any impecuniosity of the appellants arises out of the conduct complained of; • Whether there are aspects of public interest which weigh in the balance against such an order; • Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 44 It may readily be accepted that poverty is no bar to litigation: James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 445. And where a natural person has been ordered to provide security, there is usually present some factor in addition to impecuniosity, such as lack of prospects of success: Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] [33].


case_text: It may readily be accepted that poverty is no bar to litigation: James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 445. And where a natural person has been ordered to provide security, there is usually present some factor in addition to impecuniosity, such as lack of prospects of success: Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] [33].


case_text: The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: • The prospects of success; • The quantum of risk that a costs order will not be satisfied; • Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; • Whether any impecuniosity of the appellants arises out of the conduct complained of; • Whether there are aspects of public interest which weigh in the balance against such an order; • Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J.


case_title: Lawrance v Commonwealth [2007] FCA 1524

case_text: Some of these grounds, although not all, it should be noted, have been previously considered in this Court. Thus in Lawrance v Commonwealth [2007] FCA 1524 leave to appeal was sought in respect to a refusal to join the Guardianship Tribunal and to challenge rulings as to the admissibility of evidence. Leave to appeal was refused. In refusing leave, Buchanan J conducted a detailed review of the proceedings to date and concluded in part as follows: [2] ... In any event she has not made out a sufficient case of arguable error with respect to any of the rulings which she desires to challenge if leave to appeal is given. ... [57] It will be seen that one basis for refusing leave to amend the application (or to join the Guardianship Tribunal) was that such matters are beyond the jurisdiction of the FMCA by reason of s 46PO of the HREOC Act. Another was that there was no material to suggest the existence of orders or instruments of the kind which Ms Lawrance sought to have revoked. Nothing has been advanced in support of the application for leave to appeal which satisfactorily addresses the foundation for these rulings or calls their correctness into question. At the hearing before me Ms Lawrance confirmed that the Guardianship Tribunal was not referred to anywhere in the material she put before HREOC in connection with her terminated complaint and she did not know of the existence of any orders by the Guardianship Tribunal relating to her or whether the Guardianship Tribunal had given any consideration at any time to her circumstances. Her desire to seek any relief against the Guardianship Tribunal, or in relation to its orders, must be seen as speculative and clearly outside the scope of her terminated complaint. There is no prospect an appeal in relation to this issue could succeed. ... [63] The Federal Magistrate also excluded details of the conduct of numerous persons other than the personal respondents relating to matters which he had earlier ruled, on 17 November 2006 ( Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792) , were outside the scope of the matters before him and outside the scope of the FMCA's jurisdiction as granted by s 46PO of the HREOC Act. He stated that '[t]he applicant's evidence of these matters is therefore irrelevant and inadmissible insofar as she continues to pursue complaints which I had found not to be within jurisdiction'. He indicated that he would have excluded the evidence upon discretionary grounds in any event. [64] No matter of any substance has been advanced in support of the application for leave to appeal so far as those rulings are concerned. That circumstance alone dictates rejection of the application so far as it concerns rulings on evidence. There are other obstacles also. No submission has been advanced by the Respondents that the further pursuit of those issues which have been previously considered by Buchanan J amounts to an abuse of process. But it is considered that no reason has now been advanced by Ms Lawrance to reach any different conclusion to that reached by Buchanan J. The one reason advanced by Ms Lawrance as to why weight should not be given to the conclusions of Buchanan J was the contention that before his Honour the question as to whether there had been an error in the identification of the ambit of the complaint was not put in issue. This was one of the " fundamental questions of law " which it is contended was resolved erroneously by the Federal Magistrate. 29 Insofar as Ms Lawrance contends that her Grounds of Appeal raise fundamental questions of law, she contends that the Federal Magistrate erred in both: (i) the manner in which his Honour resolved the subject of the complaint made to the Commission, that error being as to the persons the subject of complaint and the period of time during which the conduct complained of occurred; and (ii) " describing the comparator for the purposes of the Disability Discrimination Act 1992 as 'any unimpaired litigant' ". The former error, she contended, underlay the Federal Magistrate's rulings ( inter alia ) as to discovery and admissibility of evidence. 30 Such Grounds of Appeal as seek to raise these contentions, it is considered, do not have any real prospects of success. 31 The relevance of identifying the subject matter of the complaint as made to the Commission arises by reason of the fact that s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) confers an entitlement to make an application to this Court and the fact that s 46PO(3) confines any such application to the same conduct as was the subject of complaint. Those subsections provide as follows: Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH ; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. ... (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 32 The Federal Magistrate in the present appeal relevantly concluded: [2] The Court's jurisdiction in discrimination matters is confined by s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to the ambit of a complaint which was terminated by the President of the Commission, and to the respondents to the complaint. In the present matter, I decided at an interlocutory stage that Ms Lawrance's application did not encompass complaints against persons other than the present respondents, nor against government agencies except to the extent that the conduct of the personal respondents in 2005 and 2006 was alleged to have evidenced and formed part of a programme or policy directed at her by Commonwealth and State agencies... 33 Any Ground of Appeal seeking to challenge this ruling and this conclusion has little, if any, prospects of success. It may be accepted that a complaint as made to the Commission is not to be construed as though it were in any manner analogous to a pleading. Even approaching the complaint as made to the Commission in as flexible a manner as possible, it is considered that it would be difficult to reach any conclusion other than that reached by the Federal Magistrate. Ms Lawrance clearly and unambiguously identified the persons against whom the complaint was being made and the period of time during which the conduct complained of was said to have occurred. Her letter of complaint to the Commission dated 21 April 2006 thus stated in part as follows: The respondents to this complaint are Andras Markus, of the Australian Government Solicitor, and the following Federal Court staff: Michael Wall, Gerard English, Juliet Curtin, Kim Lackenby, Michael Packer and John Petkovshek ... I wish to add a further respondent, the State of New South Wales ... The conduct of which I complain began fairly soon after I filed a Notice of Appeal in NSD 1148 of 2004 in the Federal Court ... The conduct that I have been exposed to since 2005 has been unmistakeably aimed at me, and impossible to not notice ...


case_text: It would also be erroneous to conclude that it was the manner in which the Federal Magistrate resolved the question as to the ambit of the conduct complained of to the Commission as being the sole determinant as to whether evidence was either admitted or excluded -- that was but one of a number of reasons given for the conclusions reached. Thus, in Lawrance v Commonwealth (No 4) [2007] FMCA 1408 the Federal Magistrate addressed the admissibility of evidence and concluded in part as follows: [18] Fourthly, I have rejected very extensive material which amounts to no more than submissions repeating the general contentions of fact and law made in the applicant's points of claim documents, her particulars and her written submissions. These parts of the applicant's affidavits serve no useful function in assisting the Court or respondents to understand the applicant's case, and are embarrassing to the proceeding. I have therefore rejected those parts. ... [21] Furthermore the alleged conduct of these other persons prior to 2005, as narrated by the applicant in her affidavits, does not in my opinion carry any probative assistance towards establishing, directly or indirectly, the particular conduct complained about in this proceeding, nor its relevant character under the anti-discrimination legislation invoked by the applicant, nor its relevant effects on the applicant. In my opinion, it is inadmissible under the relevancy test in s 55. 35 The other fundamental error identified by Ms Lawrance is said to be the manner in which the Federal Magistrate identified the " comparator " for the purposes of the Disability Discrimination Act 1992 (Cth). This alleged error, it is said, emerges from the following observations of the Federal Magistrate: [3] After hearing all the relevant evidence, including oral evidence from Ms Lawrance and all the personal respondents, I have decided that her application fails at its factual foundations. Ms Lawrance did not, at any stage in the proceeding, tender evidence which gave any substance to her allegations that the personal respondents acted, either individually or together, pursuant to a programme, policy, understanding or arrangement which imputed her with mental illness or other impairment amounting to a "disability" under the Disability Discrimination Act 1992 (Cth). Nothing in their individual conduct imputed her with a disability, nor amounted to sexual harassment or discrimination under the Sex Discrimination Act 1975 (Cth). She was not victimised by any of them, nor by their employers nor other government agencies, as a result of her earlier complaints. She was treated no differently than any unimpaired litigant acting for herself or himself in similar circumstances. The conduct of the personal respondents was entirely innocent, and did not amount to any of the breaches of discrimination legislation which are alleged. There was no conduct on their part for which their employers, or the Commonwealth, or the State of NSW, are liable. 36 The relevant Ground of Appeal contends as follows: ... Federal Magistrate Smith has acted upon a wrong principle and failed to take into account a material consideration ... The definition of 'disability' is that given under section 4(K). The comparator is not correctly identified as "any unimpaired litigant." The comparator is a person who is not being imputed with a psychiatric impairment or mental illness, and, is female. ... 39 The Grounds of Appeal also seek to put in issue the procedural fairness extended by the Federal Magistrate to Ms Lawrance. The grounds are variously expressed and range from contentions that procedural fairness was denied by reason of the failure to consider evidence or submissions to the manner in which his Honour expressed his reasons for interlocutory applications. The Magistrate in one interlocutory decision ( Lawrance v Commonwealth (No 4) [2007] FMCA 1408) thus excluded evidence of events prior to 2005 and stated in part as follows: [23] ... The prejudice the respondents face in being forced to address all of that history is clear, and, in my opinion it should be excluded under s 135 of the Evidence Act ... One Ground of Appeal seeks to contend that "nowhere is such prejudice identified, and its existence is unclear or not clear ". It is said that the Federal Magistrate has denied the now Appellant procedural fairness. 40 Grounds of Appeal asserting a denial of procedural fairness, it is considered, have little if any prospects of success. The Federal Magistrate has made rulings on the ambit of the complaint and that ruling was part of his Honour's approach to the evidence to be adduced. Extending the evidence beyond the period of time encompassed by the complaint would clearly expose the Federal Magistrates Court and the Respondents to further time being expended in the pursuit of that which was held to be irrelevant. The " prejudice " in doing so is readily apparent. In this Court, Counsel for the Second Respondent informed the Court without objection that subpoenas were issued to all of the individual Respondents to attend to give evidence. And they did so. 41 In addition to submitting that her Notice of Appeal had such prospects of success as to not warrant an exercise of the discretion to order security, a further principal consideration relied upon by Ms Lawrance was her impecuniosity. 42 All Respondents, for the purposes of the present Motion , conceded that Ms Lawrance was suffering financial hardship and would not be able to provide security. 43 All Respondents nevertheless sought security.


case_text: On 30 November 2007 a Federal Magistrate dismissed an application brought by the now Appellant in the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934. In that Court, the Federal Magistrate concluded that Ms Lawrance had not established any conduct contrary to the Sex Discrimination Act 1975 (Cth) or the Disability Discrimination Act 1992 (Cth) and had not established any basis for the grant of relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 2 Ms Lawrance has filed in this Court a Notice of Appeal seeking to challenge the decision made on 30 November 2007. 3 Now before the Court are three Applications : the first is an Application made by Ms Lawrance seeking to suspend the order as to costs made against her by the Federal Magistrate; the second is an Application made on behalf of the State of New South Wales (the Second Respondent) seeking an order that security for costs be provided and seeking a stay of proceedings until such time as security is provided; and the third is a like Application made on behalf of the remaining respondents.


case_title: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87


case_title: Tait v Bindal People [2002] FCA 322


case_title: Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336


case_text: As submitted by Westpac the language of the 1995 Kirszbaum Guarantee is unequivocal. The Applicants did not contend to the contrary. It is a guarantee that covers all moneys that Middleton Nominees " is or becomes liable to pay [Westpac] under another guarantee or indemnity ". Accordingly, the principle that " ambiguous contractual provisions should be construed in favour of the [guarantor]" does not arise: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 , 561 and Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 , 433-437 [17] [23].


case_title: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549


case_title: Chacmol Holdings Pty Ltd v Handberg (2005) 216 ALR 748

case_text: Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet & Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).


case_title: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337


case_text: I accept that these authorities support the proposition that contemporaneously executed contracts forming part of the same transaction should, as a general rule, be read as a whole and construed by reference to each other: Star City Pty Limited v Commissioner of Taxation [2007] FCA 1701 at [52] . However, it would go well beyond any concept of contractual context to alter the terms of one contemporaneously executed contract by reference to another where, as here: (1) the parties to each contract are not the same; (2) the term in the contract in question is not ambiguous; and (3) the term in the other contract is directly conflicting. This is especially so where the result is to require an essential term, such as the duration of the contract, to be amended from the written terms of one contract to obtain consistency between the two contracts. To do so would disrupt the longstanding rule that parties are bound by the unambiguous terms of their written agreement unless it is affected by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 , 483-84 [33] and [35]. The terms of the Nepalle Guarantee, including its duration, are not ambiguous. In the absence of such ambiguity, the written document stands on its own as a record of the agreement between the parties to it. 88 Westpac submitted that the 1995 Kirszbaum Guarantee secures all of Middleton Nominees' current liability to Westpac including any liability of Middleton Nominees as guarantor of the Advance debt. The Applicants disputed that the 1995 Kirszbaum Guarantee also secured the Advance debt on the ground that it could not be said that the Advance debt was of the same type or character as the original debt secured by the 1995 Kirszbaum Guarantee or that the Advance transaction documents refer back to the 1995 Kirszbaum Guarantee. In other words, the Applicants contended that it was not the intention of the parties for the Advance debt to be secured by the 1995 Kirszbaum Guarantee and the Kirszbaum Properties. For the following reasons, I reject that submission. Terms of the 1995 Kirszbaum Guarantee 89 The terms of the 1995 Kirszbaum Guarantee are important. First, there is no limit on the amount to be paid under it: cl 3. Secondly, cl 2 is headed "What is Covered by this Guarantee". It provides: This document relates to all money which [Middleton Nominees] may owe to [Westpac] now or in the future for any reason. This is the " Guaranteed Money ". ... At any time, the Guaranteed Money will also include the following. (a) money which [Middleton Nominees] contingently owes [Westpac] (money is "contingently" owed where the Customer has an obligation to pay [Westpac] if something happens or is discovered). ... (b) Money which [Middleton Nominees] may owe [Westpac] after that time of something happens or is discovered, even where there is no existing obligation to pay it, so long as it arises out of or in relation to circumstances existing, foreseeable or contemplated at the time. (c) Money which [Middleton Nominees] is or becomes liable to pay [Westpac] under another guarantee or indemnity. ... 90 Thirdly, Westpac was under no obligation to do anything in relation to, or to tell Mrs Kirszbaum anything concerning, Middelton Nominees' affairs, finances or transactions with Westpac. The responsibility rested with Mrs Kirszbaum both before and after the guarantee was signed: cl 12. Moreover, Mrs Kirszbaum was liable to pay all Guaranteed Money including under replacement or changed "Arrangements": cl 13. The term "Arrangement" was defined in cl 35 to mean: any document, agreement or dealing of any sort between [Westpac] and [Middleton Nominees] (whether or not with others) including where [Westpac] or [Middleton Nominees] becomes a party because of an assignment. Construction of the 1995 Kirszbaum Guarantee


case_text: However, the Applicants contend that despite the unequivocal words of the 1995 Kirszbaum Guarantee, the proper construction of the guarantee is not to be determined solely by reference to its express terms but by reference to what they describe as "general rules of construction" to be applied in determining the intention of the parties in respect of the "all moneys" or "dragnet clause". These general rules of construction were said to be found in the decision of Young J in Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13,146, 13,151. Those reasons for decision and the subsequent authorities do not support the Applicants' submission. 93 In fact, what Young J summarised were not rules of construction but " guidelines which illustrate how court often approach dragnet clauses provided that the language permits them to do so" : Estoril Investments , 6 BPR 13,146 at 13,151; see also Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774. Nine "guidelines" were set out. They are no more than guidelines. What Young J did was to take a number of the guidelines and analyse whether the guidelines represented the position in Australia. The conclusion his Honour reached is best illustrated by looking at the second guideline that " only debts of the same type or character as the original debt are secured by the mortgage" . After analysing the authorities in the United States, England, New Zealand and Australia, Young J concluded as follows: I also believe that it is fair to say that in many cases the Court will come to the view as stated in proposition (2) above. However, that is a very different thing from saying that there is some general rule that mortgages must be construed as if they were limited to debts of the same type as those for which the mortgage was originally taken out.


case_title: Manks v Whiteley [1912] 1 Ch 735


case_text: Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet & Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ). 94 It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.


case_text: It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.


case_text: The Form of Acknowledgment attached to that document on which the critical handwritten annotation was made did not form part of the agreement of guarantee and indemnity between Westpac and Middleton Nominees. The Form of Acknowledgment referred to, but did not contain or constitute, an agreement between the parties. It was a document sought by Westpac as a record of statements made by Mrs Kirszbaum which Westpac could use if Mrs Kirszbaum were to later claim that she should not be held to be bound by the agreement because she did not understand it. As the High Court pointed out in Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401. 418 [8] and Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-62 [22], it is the written terms of an agreement which speak to third parties. This is particularly so in commercial contexts where the agreement is recorded in a deed or other similar document. In the present case, it is the Guarantee and not the Form of Acknowledgment that records the terms of the bargain the parties made.


case_title: Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436


case_text: In fact, what Young J summarised were not rules of construction but " guidelines which illustrate how court often approach dragnet clauses provided that the language permits them to do so" : Estoril Investments , 6 BPR 13,146 at 13,151; see also Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774. Nine "guidelines" were set out. They are no more than guidelines. What Young J did was to take a number of the guidelines and analyse whether the guidelines represented the position in Australia. The conclusion his Honour reached is best illustrated by looking at the second guideline that " only debts of the same type or character as the original debt are secured by the mortgage" . After analysing the authorities in the United States, England, New Zealand and Australia, Young J concluded as follows: I also believe that it is fair to say that in many cases the Court will come to the view as stated in proposition (2) above. However, that is a very different thing from saying that there is some general rule that mortgages must be construed as if they were limited to debts of the same type as those for which the mortgage was originally taken out. 94 It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.


case_text: I accept that these authorities support the proposition that contemporaneously executed contracts forming part of the same transaction should, as a general rule, be read as a whole and construed by reference to each other: Star City Pty Limited v Commissioner of Taxation [2007] FCA 1701 at [52] . However, it would go well beyond any concept of contractual context to alter the terms of one contemporaneously executed contract by reference to another where, as here: (1) the parties to each contract are not the same; (2) the term in the contract in question is not ambiguous; and (3) the term in the other contract is directly conflicting. This is especially so where the result is to require an essential term, such as the duration of the contract, to be amended from the written terms of one contract to obtain consistency between the two contracts. To do so would disrupt the longstanding rule that parties are bound by the unambiguous terms of their written agreement unless it is affected by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 , 483-84 [33] and [35]. The terms of the Nepalle Guarantee, including its duration, are not ambiguous. In the absence of such ambiguity, the written document stands on its own as a record of the agreement between the parties to it.


case_title: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401


case_title: Cruse v Construction, Forestry, Mining & Energy Union [2008] FCA 1267

case_text: As was said in Cruse v Construction, Forestry, Mining and Energy Union [2008] FCA 1267 at [18] : Intention to coerce requires intent to exert pressure that would in a practical sense negate choice: see National Tertiary Education Industry Union at 143. Negation of choice can be contrasted with a desire to influence, persuade or induce. The question will be, as Weinberg J said in National Tertiary Education Industry Union at 143, whether "a person is left with a realistic choice as to whether or not to comply". The objective of the organisers in their 24 October 2005 discussion with Mr Noble was to "influence, persuade or induce". Vaughan was left with a realistic choice not to comply and did not comply.


case_text: The workers did not take industrial action as such. They were called off the job by Mr Fahnle. However, the organisers, on behalf of the Union, imposed a ban on the performance of work on the site after the meeting between the organisers and some of the workers on the morning of 20 October 2005. The bans on the concreting works lasted until 8.00 am the next day. The bans on earthworks lasted until the afternoon of the next day. Bans of that sort constitute "building industrial action" under s 36(1) of the Act : see Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292 at [58] , per Kenny J. 20 Counsel for the Union contended that the application was not pleaded so as to encompass any ban but only a ban which would constitute a restriction on the performance of work in accordance with the National Building and Construction Industry Award 2000 . Counsel referred to cl 12.1.2 of the Award which provides: Any direction issued by an employer shall be consistent with the employer's responsibilities to provide a safe and healthy working environment. 21 As the organiser's claims included the issue of the safety of working on the site in the absence of a site contamination report, counsel submitted that the bans did not involve a restriction on the performance of work in accordance with the Award. He observed that Mr Fahnle was, in effect, the agent of the employer of the workers in his capacity as site manager.


case_title: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378

case_text: Further, "intent to coerce" must carry with it the exertion of pressure which involves conduct that is "unlawful, illegitimate and unconscionable": see Seven Network (Op erations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] per Merkel J. Mr Noble admitted in the concluding portion of his cross-examination that the conduct of the organisers was not of that sort. 37 Counsel for the applicant submitted that, at the 24 October 2005 meeting, the organisers told Mr Noble that, unless Vaughan employed a Union nominated shop steward, the bans on earthworks would remain in place. There are two problems with that submission. First, there were no operative bans on earthworks on the site on 24 October 2005. Second, the cross-examination of Mr Noble revealed that the " only threat" (emphasis added) was that if the Union did not have on site a safety representative/shop steward that it knew and trusted then organisers would need to visit the site to catch Vaughan if it did something wrong. Mr Noble also conceded that the organisers were not threatening to do anything "over and above their powers as union officials". Action "over and above" their powers would include the maintenance of unlawful bans. In any event there was no negation of choice for Vaughan if it did not accede to the demand for a Union nominated safety officer/steward as earthworks and concreting works had been completed by 24 October 2005. No operative or relative bans could have been maintained as a matter of practical reality. This aspect of the application is also without merit. 38 During the course of the evidence, the applicant applied for the admission of the evidence of a previous representation made by a person. The Court admitted the evidence under s 63 of the Evidence Act 1995 (Cth). The evidence consisted of a recording and transcript of an ABCC inspector's interview of Mr Dougas. Mr Dougas was not available to give evidence "about an asserted fact", that is, the events of 20 October 2005, because he had relied on his privilege against liability to a civil penalty under s 128(1)(b) of the Evidence Act and the Court, under s 128(5) , did not require him to give that evidence.


case_text: The question, therefore, is whether a judgment given in default of appearance, without a hearing on the merits, is a final judgment of the kind giving rise to res judicata estoppel. This question was the subject of detailed consideration in Applicant A184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1076 (2004) 210 ALR 543 at [97] - [114] . After a thorough examination of the relevant authorities, Lander J decided not to dismiss the application for leave to appeal that was before him on the res judicata ground, based on an earlier order of the Court dismissing an earlier application because of the failure of the applicant to appear when the matter was listed for trial. In the absence of evidence as to why the applicant had failed to appear at the earlier hearing, his Honour was not prepared to determine that the earlier order would support a claim of res judicata. It is clear from the reasoning in that case that, even though a consent judgment, or a judgment given against a respondent who fails to defend the proceeding, might be considered to be examples of final judgment giving rise to res judicata estoppel, a judgment given against an applicant in default of appearance, when the default is unexplained, is not to be regarded as a final judgment. Indeed, such a judgment would be regarded as an interlocutory judgment, from which leave to appeal would be required, and which could be set aside by the court giving it, upon application supported by material explaining the reason for the absence of the applicant. 63 In the present case, there has been no attempt to explore, and there is no evidence about, the reason for the appellant's failure to appear when his earlier case was called on for trial in the Federal Magistrates Court. The terms of order made on that occasion suggest that the proceeding was dismissed purely because the appellant had failed to appear, and without a determination of the merits. The order is therefore to be regarded as an interlocutory order, and not as a judgment finally determining the causes of action raised by the appellant in that proceeding. The earlier proceeding therefore constitutes no bar to the appellant proceeding in the present case, even if the cause of action on which he now desires to proceed is identical with the cause of action in the earlier proceeding. The Federal Magistrate therefore erred in dismissing the appellant's application on the basis that it was precluded by res judicata estoppel. 64 It follows from what I have said that the appeal must be allowed. With the exception of the order for costs, the orders of the Federal Magistrates Court, made on 27 August 2004, must be set aside. There should be substituted for those orders, orders giving the appellant the relief to which he was entitled, namely a writ of certiorari, directed to the Tribunal, removing its decision into the Court, for the purpose of quashing the decision, an order that the decision be quashed, and a writ of mandamus, directed to the second respondent, requiring it to hear and determine the application of the appellant, his wife and their son, for protection visas according to law. Counsel for the appellant conceded that, because the judgment of the Federal Magistrates Court is being overturned on a ground not raised in that court, the appellant could not invite this Court to set aside the order made at first instance, requiring the appellant to pay the Minister's costs, fixed at $6,500. 65 The orders I make must, of course, include the grant of leave to amend the notice of appeal by adding the grounds to which I have referred in [54], and by granting leave to the appellant to rely on the evidence in the affidavits of Mr Ganegoda and Mr Liyanage and the exhibits to those affidavits. 66 The question of the costs of the appeal also arises. When the hearing of the appeal was adjourned to enable the appellant to apply for leave to amend the notice of appeal, the appellant was ordered to pay the Minister's costs of the adjournment. That order will stand, and is sufficient compensation to the Minister for the fact that the appeal has succeeded on grounds not raised in the court below. Although counsel for the appellant are representing him as volunteers, pursuant to the scheme for legal referral found in O 80 of the Federal Court Rules , this does not preclude an order for the costs of the appeal in the appellant's favour. Order 80 r 9(2) provides that, if an order for costs is made in favour of a litigant assisted under the scheme, the legal practitioner who has provided the legal assistance is entitled to recover the amount of fees and disbursements that another party is required to pay under the order. There is therefore no reason not to apply the usual order, that costs follow the event. The first respondent will be ordered to pay the appellant's costs of the appeal. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 10 August 2007 Counsel for the appellant: C Gunst QC with S Moore (pro bono) Counsel for the respondent: R Knowles Solicitor for the respondent: Clayton Utz Date of Hearing: 30 November 2005 and 27 October 2006 Date of Judgment: 10 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1212.html


case_text: In Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 (2005) 148 FCR 46 at [72] - [73] , I held that the view expressed by Dowsett and Lander JJ in Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 (2004) 138 FCR 151 at [11] - [34] , that the time limit provisions of the High Court Rules have no role to play once a proceeding is remitted, was the preferable view. On this basis, the Federal Magistrate was wrong to hold that she had to consider whether to exercise the High Court's power to grant an enlargement of time. For the reasons that I gave in Applicants M16 , I am still of the view that Dowsett and Lander JJ were correct. The Federal Magistrate was therefore in error to the extent to which she dismissed the appellant's proceeding on the basis that it was out of time, and that her Honour would not grant an enlargement of the time.


case_title: Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 (2004) 138 FCR 151


case_text: It will be recalled that the Federal Magistrate dismissed the appellant's application on the basis that another Federal Magistrate had dismissed an earlier application concerned with the same Tribunal decision. Her Honour's reason for dismissing the application on this basis was that the earlier dismissal gave rise to a res judicata estoppel. The doctrine of res judicata bars a right or cause of action, raised in an earlier proceeding on which judgment has been given, so that the right or cause of action merges into the judgment and cannot be litigated again. See Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J. Related defences are issue estoppel, a defence to an attempt to litigate again an issue already actually decided, and Anshun estoppel, based on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, applicable where there is neither strict identity of cause of action, so that res judicata is not available, nor the actual determination of an issue, so that issue estoppel is not available, but a party seeks to litigate an issue that could and should have been raised in a previous proceeding.


case_text: In all of these ways, the interpreter's errors were of significance, or at least of potential significance, to the outcome of the case. The errors deprived the appellant of a fair opportunity to succeed. They therefore amounted to a denial of procedural fairness. To the extent to which the appellant was not able to put before the Tribunal the evidence that he wanted to, because elements of his answers were omitted from the interpreter's translation of them, he was deprived of the opportunity to give evidence to the Tribunal. Section 425(1) of the Migration Act obliged the Tribunal to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister's delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the Tribunal will have failed to comply with its obligation under s 425(1). See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [41] . See also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592 at [33] .


case_text: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 (1999) 92 FCR 6 was also a case in which a Sinhalese person from Sri Lanka sought a protection visa and gave his evidence to the Tribunal through an interpreter. After a detailed analysis of the transcript of the hearing before the Tribunal in that case, and a thorough analysis of the authorities about the role of interpreters in proceedings in the various kinds, Kenny J set aside the decision of the Tribunal. The case is authority for a number of propositions relevant to the present case. At [20], her Honour held that, if not proficient in English, an applicant is effectively unable to exercise his or her right to give evidence without the assistance of an interpreter. The Tribunal is therefore unable to provide an applicant with an opportunity to appear before it to give evidence, unless it provides an interpreter to assist. If an applicant is unable to give evidence in English, the effect of s 425(1) is to require that the Tribunal give a direction pursuant to s 427(7) that communication proceed through an interpreter. At [21], her Honour held that, without an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence. As a consequence, the Tribunal lacked jurisdiction to continue the hearing unless it provided an interpreter. If the Tribunal were to proceed, it would fail to observe procedures required by the Migration Act . 35 At [29], Kenny J endeavoured to express the standard of interpretation required for a Tribunal hearing: Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. 36 After citing American authority, her Honour emphasised the requirements of accuracy and completeness of interpretation. 37 At [42], her Honour expressed the departure from the required standard in the following terms: Whilst it is possible to divine the general thrust of the applicant's case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera's unchallenged account 38 At [46], her Honour found that the departure from the standard of interpretation in Mr Perera's case related to matters significant for the Tribunal's decision. At [47]-[49], her Honour dealt with the question of findings adverse to the credit of an applicant, concluding that inadequate interpretation might lead to an adverse decision on credit. 39 Perera has been followed in several cases. See particularly WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511 at [64] , and the cases cited there. The Full Court accepted that, although s 425(1) of the Migration Act has been amended since Perera , what Kenny J said in Perera remains applicable to the section as amended.


case_text: It is beyond doubt that both a denial of procedural fairness and a failure to comply with the Tribunal's essential statutory obligation in s 425(1) of the Migration Act constitute jurisdictional error. Jurisdictional error means that the Tribunal's decision is not a "decision" for the purposes of the definition of "privative clause decision" under s 474 of the Migration Act , because the decision is not made under the Migration Act . The provisions of the Migration Act that would deprive the Federal Magistrates Court, and this Court, of jurisdiction to deal with the Tribunal's decision, if it were a privative clause decision, are therefore inapplicable. See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476. Because the Tribunal's hearing took place before the amendment to the Migration Act that inserted s 422B , it is unnecessary to discuss what, if any, impact that provision would now have. 53 Because of jurisdictional error, constituted by the denial of procedural fairness and the failure to comply with s 425(1) of the Migration Act , the appellant was entitled to have the Tribunal's decision set aside, and to have the matter of the review of the decision of the delegate of the Minister to refuse him a protection visa remitted to the Tribunal, so that it could fulfil its statutory obligation by providing the appellant with a proper hearing. Because of events which have occurred in the meantime, the appellant has a number of obstacles to surmount before it can be accepted that he can now avail himself of that entitlement. In the Federal Magistrates Court, the appellant did not present the deficiencies in the performance of the interpreter as a ground on which that court might overturn the Tribunal's decision. Nor was that ground in the notice of appeal to this Court. It is therefore necessary to decide whether the appellant should have leave to amend the notice of appeal by adding a ground not taken in the court below. If such leave is granted, there can be no question that the Federal Magistrate's conclusion that there was no jurisdictional error on the part of the Tribunal is incorrect, on the material now before the Court. That conclusion would not be sufficient to warrant the appeal being allowed if there were no error in the Federal Magistrate's apparent conclusion that the appellant's proceeding in the High Court was out of time, and that no enlargement of time should be granted, and her Honour's conclusion that the proceeding was barred in any event by the principles of res judicata. 54 The appellant seeks to add two grounds of appeal to the notice of appeal, specified as follows: The Tribunal breached s 425 of the Migration Act 1958 (Cth) by not providing the appellant adequate interpreting services and so failed to afford the appellant an effective opportunity to give evidence and present arguments. Alternatively, by not providing adequate interpreting services to the appellant the Tribunal committed a jurisdictional error by breaching the rules of natural justice and/or procedural fairness. 55 Also required is leave to rely on evidence that was not before the court below, in the form of the affidavit of Mr Ganegoda, filed on behalf of the appellant, and the affidavit of Mr Liyanage, filed on behalf of the Minister. 56 Although substantial time has elapsed between the Tribunal hearing and the raising of the issue as to interpretation by the appellant, there is a powerful case for granting leave to rely on the proposed new grounds. The appellant required the services of an interpreter to present his case. This suggests that, at the time, he did not believe that he had the competence in English necessary to enable him to give evidence and present his arguments to the Tribunal by himself. A person who requires the services of an interpreter in order to give evidence can hardly be expected to know that the interpreter has failed to translate the evidence accurately. It would be harsh to deny the appellant the right to rely on the interpreter's errors simply because of the lapse of time. Further, in filing his application in the High Court, the appellant did not have the benefit of legal representation. Nor did he have legal representation at any stage until after the appeal first came on for hearing, at which time he was able to procure the services of pro bono counsel, pursuant to the Court's scheme under O 80 of the Federal Court Rules . By contrast, the Minister is unable to point to any prejudice, particularly any prejudice that could not be compensated by the order for costs of the adjournment of the appeal already made.


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


case_title: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592


case_text: Perera has been followed in several cases. See particularly WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511 at [64] , and the cases cited there. The Full Court accepted that, although s 425(1) of the Migration Act has been amended since Perera , what Kenny J said in Perera remains applicable to the section as amended.


case_outcome: referred to

case_text: On 22 August 2008, the Court published its reasons for judgment in Cruse v Construction, Forestry, Mining and Energy Union [2008] FCA 1267 ("the substantive judgment"). In the substantive judgment, the Court held that Mr Fry, a delegate of the respondent Union, breached ss 298SC and 170NC of the Workplace Relations Act 1996 (Cth) ("the WR Act "). It also found the Union vicariously liable for Mr Fry's breaches. This judgment should be read together with the substantive judgment. It deals with the issue of what penalties, if any, should be imposed on Mr Fry and the Union. 2 Mr Fry was employed at the Hamilton site referred to in the substantive judgment. He was engaged on the construction side of the project. He was also a CFMEU shop steward. It was custom and practice on the construction side of the site for employees to be members of the CFMEU. The position of Mr Anton was unusual because he was a self-employed building contractor engaged to perform odd jobs around the Hamilton site. Mr Fry's role as shop steward included the enrolment of non-members on the construction side of the site into the CFMEU. He enrolled Mr Anton but 'gilded the lily' in encouraging him to do so by saying that he had an obligation to join the CFMEU. No doubt, as a CFMEU shop steward, and with everyone else on the construction side of the site almost certainly being in the CFMEU, Mr Fry considered that Mr Anton should be in the CFMEU. That does not excuse the breach of s 298SC of the WR Act committed by Mr Fry, but it does explain it and put it in context. 3 Mr Fry is fifty-nine years old. He has no history of prior contravention of any provision of the WR Act or the more onerous Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act "), which places special obligations and requirements on building and construction workers which do not apply to other sections of the workforce. Mr Fry lives in Hamilton in rural Victoria. He is employed as a scaffolder doing work around the Western District of Victoria. He is not a wealthy man. He has given evidence that he "will not at any time in the future make a false statement to anyone regarding their obligation to be a member of the CFMEU".


case_text: The applicant additionally seeks to rely on the International Convention on the Rights of the Child. However as Mason CJ and Deane J stated in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, since the Convention has not been incorporated into Australian municipal law, it cannot operate as a direct source of individual rights and obligations. Nonetheless, where the provisions of the Convention are relevant to the exercise of a statutory discretion, a legitimate expectation exists that the decision-maker will act in accordance with the Convention in exercising that discretion. However as discussed above, the decision in the present case was ultimately based upon the issue as to whether the applicant satisfied certain statutory criteria as opposed to discretionary considerations, and as such the applicant could not seek to rely upon the Convention. 13 The appeal has no viable foundation must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 May 2006 The Applicant was self-represented Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 March 2006 Date of Judgment: 5 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/508.html


case_text: the continued interest must be one "of that kind". In context, the reference in cl 845.213(b) to "of that kind" is, in my opinion, to be read as a reference to the "main business" or businesses referred to in cl 845.213(a). The use of "kind" in drafting might in other contexts admit of a more generic coverage. The embrace of the word has given rise in other contexts to sharp divisions of judicial opinion, see, for example, Bird v The Commonwealth [1988] HCA 23 ; (1988) 165 CLR 1. Here though, "kind" is governed not by an indefinite but by a very specific definite article, "that". It is also necessary to recall that "main business" is itself a defined term. One feature of that definition, to which I have already referred, is a limit on the number of businesses which may be nominated as a "main business". To give "of that kind" an open ended, generic construction so as to embrace yet another business, albeit one akin to that or those nominated, would be to subvert: (a) The limitation found in the definition of "main business"; and (b) The very managerial particular involvement, found in para (1)(b) of the definition, required for a business to be a "main business". There is no obvious reason for such subversion in respect of this particular visa subclass. On the other hand, construing "of that kind" as a reference to the "main business" or businesses referred to in cl 845.213(a) sits comfortably with a subclass the intent of which seems to be to provide a basis for the granting of a visa to those (and to the family of those) who have made a significant and continuing investment in and managerial involvement with at least one and not more than two nominated main businesses in Australia. Another feature of para (1)(b) of the definition of "main business" in reg 1.11 of the Regulations is that it is activity related. Furthermore, the language employed in respect of the activity is "maintains or has maintained continuous involvement". Necessarily, the determining of whether at the time of decision the requirements of this paragraph are met requires an assessment of an activity over a continuum. What has the visa applicant been doing in relation to the "main business" or businesses since the date of application? Further, the requirements specified in the paragraphs of the definition are cumulative.


case_text: the circumstances of Saffron's Case, the proceeding before the Federal Magistrates Court was in no sense an appeal by way of rehearing where a particular point had not been taken in a court below. Rather, it was a judicial review proceeding in respect of the Tribunal's decision. Further, having regarding to s 65 of the Act, it was a judicial review proceeding in respect of an ultimate conclusion by the Tribunal, sitting in place of the ministerial delegate, that it was not "satisfied" that the relevant criteria for the grant of the visa sought were met. Such "satisfaction" based decisions are not unexaminable on judicial review, as the High Court noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 by reference with approval to remarks on that subject made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1975) 135 CLR 110 at 118-119.


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_text: pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; S ZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 at [5] per Hely J.


case_text: the Federal Magistrates Court, the Appellant's contention was that it was not lawfully possible for the Tribunal to have concluded that the meaning of the word "business" in the definition of "main business" was such that, even though several types of enterprise might be discernable in its operations, there could in law only be one "business" carried on by that legal entity. In disposing of that contention, the learned Federal Magistrate noted that in Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481 ; (2003) 129 FCR 448 Branson J, having observed that the word "business" was not defined for the purposes of the Regulations, derived assistance as to its meaning as found in standard dictionaries. In that case her Honour concluded that it was not a characteristic of the meaning of the word "business" that a business could only be carried on by one legal entity. The learned Federal Magistrate considered that the converse of this also followed from the word's ordinary meaning, ie that a single legal entity could also carry on more than one "business" (reasons for judgment, para 41). Having reached that conclusion, his Honour then found that it was open to the Tribunal, as a matter of fact, to conclude that GNI operated two businesses. There was no error in the way in which the learned Federal Magistrate approached the meaning of the word "business" and its reach. As did Branson J in Nassif (at 454-455), I gain assistance as to the meaning the word from standard dictionaries. The word undoubtedly has chameleon like qualities, taking its meaning from the context in which it is used. In both the Oxford and the Macquarie Dictionaries the meaning of the word "business", when used in a commercial sense, is "enterprise". That is the sense in which it is used in the terms "main business" and "qualifying business" in the Regulations. That this is so is reinforced by its being treated, in the definition of "qualifying business", as a synonym for "enterprise". So construed, there is nothing about the meaning of the word "business" as used in the context of the Regulations which carries with it the necessary corollary that a legal entity can only ever, on its true meaning, have or conduct but one "business". Such a construction of the word "business" accords with common experience. It is by no means unusual for a legal entity to cease one particular field of commercial endeavour by the disposal of what is aptly termed a "business" without ceasing altogether to trade. Given this meaning of the word, whether or not GNI had one or two "main businesses" was nothing more than a question of fact and one for the Tribunal alone. The learned Federal Magistrate well appreciated this (reasons for judgement, para 44). It is certainly not one this Court on subsequent appeal.