case_outcome: considered

case_text: The 'first in time' view is said to find some support in Re Thomas and South Australian Branch of the Australian Workers' Union (unreported, Federal Court of Australia, Keely J, 11 June 1992). The relevant rule of the organisation there in question was r 74(g). It provided that no member should be eligible to nominate for or hold at any one time more than one salaried office. There was also a provision that candidates, with the consent of their nominators, might withdraw their nominations for any positions. In the course of his reasons for judgment, Keely J said: 'I am not prepared to accept the applicant's submission that each of the nominations lodged (i.e. before any withdrawals) was necessarily contrary to r.74(g). However I accept that each of any multiple nominations was contrary to r.74(g) if those multiple nominations were either lodged by the candidate at the same time or lodged in such a way that the returning officer is unable to determine which one (if any) was lodged first; in each of those two sets of circumstances I accept that all of the nominations so lodged are contrary to r.74(g).' 13 His Honour then rejected the submission that a candidate could lodge as many nominations as he or she liked provided that sufficient of them were withdrawn to comply with the substantive part of r 74(g) by the time the returning officer considered the final nominations, after the period for nominations had closed. His Honour took the view that the submission flew in the face of the plain meaning of r 74(g), the purpose of which was to prevent multiple nominations. In his Honour's view, the provision of the rules of the organisation permitting candidates to withdraw their nominations was not intended to give a candidate who had lodged multiple nominations in breach of r 74(g) an opportunity to overcome the effect of the breach by withdrawing one or some. 14 In the paragraph I have quoted from Thomas , it is not clear that Keely J was of the view that, if it were possible for the returning officer to determine which of a candidate's nominations had been lodged first in time, then the first in time should prevail. All that his Honour said was that, only if nominations were lodged simultaneously, or it was impossible to determine which of them had been lodged first, could it be said that all were invalid. It is true that there is some attraction in the simplicity of the reasoning that it is only the existence of the nomination that is first in time that brings about any conflict between a rule such as r 5.5 and any nomination subsequently received by a returning officer. This reasoning suggests that the second nomination does not invalidate the first, but it is the presence of the first that causes the second to be invalid. It is not necessarily reasoning that is supported by authority. 18 It can be seen that the 'nothing valid' argument gains no real support from either Bogar judgment. Each did nothing more than state the effect of what is now r 5.5. No conclusion can be drawn that, in all circumstances, every nomination received for an office to which r 5.5 applies will be invalid. The contention, put by counsel for the Union, that the Union has organised its affairs on the basis of this interpretation, which has become settled, cannot be accepted. It is an unattractive contention, because rules of organisations ought to be construed in favour of eligibility to stand for election, if that be possible. This approach is consonant with all of the learning relating to the participation by members in the conduct of the affairs of an organisation, and the democratic control of organisations, both ends to which the legislation aspires in its terms. There is no particular reason why every one of multiple nominations should be treated as invalid, in circumstances in which it is possible to identify one that would be the cause of the others being in contravention of r 5.5. If anything, at least where the order in which nominations have been lodged can be determined, the 'nothing valid' argument is inconsistent with the assumption that appears to have underlain what Keely J said in Thomas , and the result in the second Bogar case. 21 There is therefore no reason not to apply the principle of implied surrender and, to the extent necessary, its related principles about election between inconsistent rights, beyond the acquisition of another office, or of membership of another branch, to matters such as the lodging of nominations in circumstances where two or more nominations cannot stand alongside each other, because of the existence of a rule such as r 5.5. Indeed, such an extension could provide the key to the situation to which Keely J alluded in Thomas , namely that multiple nominations arrive at the same time, or in circumstances in which it is impossible for the returning officer to determine which arrived first. In such cases, the returning officer might require the candidate concerned to elect expressly as to which of the nominations he or she wished to retain. In cases such as the present, when it is possible to determine in which order the nominations were lodged, the law attaches to the lodging of a later nomination the consequence that the candidate concerned can no longer rely on the former. The later nomination is an implied withdrawal of the earlier nomination, not by way of implied intention to withdraw, but by way of imputed intention to withdraw. 23 Keely J in Thomas did not consider any of these issues. His Honour's reasoning is sparse, to the point where it is not even possible to assume that his Honour did adopt the 'first in time' option, from the fact that his Honour made reference to the problem of simultaneous receipt of nominations, or receipt of nominations in circumstances in which it is unclear in which order they have been received. In my view, if it had been necessary, his Honour might well have taken the view that the principle of implied surrender operated, so that the last nomination received would prevail, and that the problem of simultaneous nominations would be resolved by applying the doctrine of election between inconsistent rights. As I have said, the result in the second Bogar case is explicable on the basis that North J was dealing only with one of the two nominations, there was no evidence of the timing of the two nominations, and the case may simply have been one of the candidate's election between inconsistent rights. No authority stands in the way of the adoption of the 'last in time' view. The authorities to which I have referred about previous applications of the principle of implied surrender support the argument that it applies to a situation such as that of multiple nominations, when only one can be valid. I accept that argument. It remains to apply the principle to the facts of the case. 24 The adoption of the view that the last nomination received from each of the relevant candidates is taken to involve an implied withdrawal of all of the previous inconsistent nominations leads to the conclusion that the elections should proceed on the basis that: Mr Reid is a candidate for National Secretary, but not for State Secretary, Victoria; Mr Wisniewski is a candidate for Assistant State Secretary (Metals and Engineering Members), Victoria but not for any of the other three positions for which he was nominated; and Mr McMinimee is a candidate for Assistant National Secretary (Metals and Engineering Members) and not for Assistant State Secretary (Metals and Engineering Members), Victoria. But for one further factual matter, Mr Campbell would have to be treated as a candidate for National Secretary, but not for Regional Secretary/Assistant State Secretary, Food and Confectionary Division, Victoria. 25 On 22 February 2007, Mr Campbell sent by facsimile transmission a hand-written letter, dated 'Thursday 22 5.23 pm', addressed to Mr Pryor, and apparently received at 9.26 am on the following morning. The letter simply says: 'I wish to withdraw my nomination for the Position of NATIONAL SECRETARY of the A.M.W.U.' It is apparently signed by Mr Campbell. There is nothing unequivocal about it.


case_text: Counsel for the Union, whose submissions on this point were adopted by counsel for Mr Nicolaides and other candidates for whom she also appeared by leave, suggested that the 'nothing valid' contention found support in two authorities. In Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996), the Court referred to what is in effect the current r 5.5 of the Union's rules, which was then numbered as r 3(7). The Court's examination of this rule was in the context of transitional rules that were designed to facilitate the amalgamation of earlier registered organisations to become the Union. At issue was the question whether the office of Federal Secretary, Food and Confectionery Division, was a full-time office. The Court's examination of r 3(7) was in the context of determining this question. In the course of setting out its reasoning as to the relationship between provisions of a transitional rule and provisions that were of more permanent duration, the Court said: "the combined effect of r 3(7) [and other provisions of rule 3] is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division." This was simply a statement of the effect of r 3(7), in conjunction with other provisions of the Union's rules. The Court did not deal at all with the consequences of a person nominating for more than one office, in contravention of r 3(7).


case_text: Counsel for the Union also argued that the 'nothing valid' view drew support from the judgment of North J in Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998). In that case, his Honour dealt with the provisions of what appear by then to have become r 3(8) of the rules of the Union, which were the same as the relevant provisions of the current r 5.5. It appeared that one candidate had been nominated for both Tasmanian Regional Secretary and Federal Secretary of the Food and Confectionery Division of the Union. The candidate had been declared elected unopposed as Tasmanian Regional Secretary. The inquiry before North J was solely into the election for the office of Federal Secretary of the Food and Confectionery Division. The question was whether the candidate's nomination for that office should have been accepted. In the course of his reasons for judgment, North J referred to the judgment of the Full Court of the Industrial Relations Court of Australia in the earlier Bogar case, quoting substantial passages, including the passage I have quoted above. His Honour went on to say: 'The decision of the Full Court is clear authority that r 3(8) prohibits a person nominating for the offices of Federal Secretary of the Division and Regional Secretary of the Division outside the transitional period.' 17 North J then held that the nomination of the relevant candidate for the position of Federal Secretary of the Food and Confectionery Division had been accepted in breach of r 3(8), and that this was an irregularity in the election. His Honour does not appear to have made any finding as to the order in which the two nominations had been received by the returning officer. It is not clear that the conclusion was based either on the assumption that the 'first in time' view should prevail, or that the 'nothing valid' view was correct. His Honour did not attempt to deal with the question of the validity of the candidate's election to the position of Tasmanian Regional Secretary. In other words, what his Honour said simply restated the effect of what is now r 5.5, but did not deal in any way with the consequences of a contravention of that rule, other than to hold that the acceptance of the one nomination relevant to the proceeding before him amounted to an irregularity. The result is explicable on the basis that it was unclear whether there was any difference in the time of lodging of the two nominations but, having been declared elected as Tasmanian Regional Secretary, the candidate must have been taken to have elected to treat the nomination for that office as valid, which necessitated that the nomination for Federal Secretary of the Food and Confectionery Division was invalid.


case_outcome: followed

case_title: Egan v Maher [No. 2] (1978) 35 FLR 252

case_text: The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination. 20 Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.' 22 It is no answer to this line of argument to say that, at the time when it arrives, the later nomination is invalid because of the former. As Northrop J (Evatt J agreeing, Smithers J dissenting on this point) made clear in Egan at 262, the inconsistent assumption of rights does not have to be valid in order to constitute an implied surrender of the original right. In that case, the holder of the office of National Assistant Secretary of an organisation accepted appointment to the office of National Secretary-Treasurer, on the assumption that there was a vacancy in the latter office. The Court held that in law there was no vacancy in the office of National Secretary-Treasurer, but the officer concerned was nonetheless taken to have resigned impliedly from his position as National Assistant Secretary. In any event, in a case such as the present, there is no particular ground for holding that a second or subsequent nomination is invalid. When it is received, all that can be said is that there have been two acts of the candidate which cannot stand together, because of the operation of r 5.5. As a logical proposition, it is equally open to say that the second nomination invalidates the first as it is to say that the first nomination invalidates the second. I have come to the conclusion that the principle of implied surrender requires that the law take the view that it is the first nomination that is surrendered impliedly by the lodging of the second. The first becomes invalid, not the second. The adoption of such a proposition does not offend on policy grounds. Policy is blind to the relative importance of the two or more positions for which nominations have been received, and to the personalities of those who have been nominated. No greater inconvenience is caused to a returning officer who must determine, at the date of closure of nominations, which of the nominations is the one that can be treated as valid. 'Last in time' is a simple rule to apply.


case_title: Mellor v Horn (1988) 25 IR 157

case_text: The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination.


case_title: Johnson v Beitseen (1989) 41 IR 395


case_title: Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218


case_outcome: cited

case_text: Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.'


case_title: Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41


case_title: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634


case_text: Having taken the view that I have as to the validity of the last in time nominations of the candidates concerned, I find it unnecessary to deal with the question whether the invalidity of the other nominations, as a consequence of the application of r 5.5, was such as to amount to a 'defect' for the purposes of the application of r 4.6 of the Union's rules. That rule is intended to conform with the requirement, now found in s 143(1)(c) of Sch 1 to the WR Act, that the rules of an organisation: 'must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than seven days after the person is notified.' On the question of what it means for a nomination to be defective, there is a conflict of authority between Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) on the one hand and Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127 and the Full Court in Australian Electoral Commission v Hickson (1997) 76 IR 399 on the other. The conflict is essentially over whether, in a case in which the flaw in a nomination is such that it could not be remedied, the nomination must nevertheless be considered defective, and the requisite notice be given. In the present case, the returning officers considered that nothing could be done to validate the invalid nominations, and that they were therefore not defective for the purposes of r 4.6.


case_title: Hickson v Australian Electoral Commission (1997) 76 IR 127


case_title: Australian Electoral Commission v Hickson (1997) 76 IR 399


case_text: There are difficulties about both views. That of Keely J leads to difficult problems of definition, and possibly greater likelihood of litigation. The views expressed in the Hickson cases appear to take little or no account of the provision in s 143(5) of Sch 1 to the WR Act, which excludes from the reference in s 143(1)(c) to a nomination being defective the situation in which the nomination is defective "because the person is not qualified to hold the office to which the nomination relates". In addition, Hickson concerned a nomination that was manifestly defective, in that one of the nominators turned out to be not capable of being a nominator, by reason of being unfinancial. Such a defect is manifestly capable of correction, either by the payment of arrears of dues, or by the substitution of another financial member. Interestingly, although Goldberg J in Re Wall; Re inquiry relating to an election for an office in the Ansett Pilots Association [2000] FCA 1568 (2000) 102 IR 379 at [19] [29], said that he agreed with the view of Wilcox J in Hickson , and that nothing justified drawing a distinction between a defective nomination and one that is fundamentally flawed, his Honour stated his conclusion in terms that the relevant nomination was to be considered as defective and capable of being remedied, rather than being a nullity. In the circumstances of the present case, I do not have to decide these issues and I prefer to express no concluded view about them. 30 As a result of reaching the conclusions I have expressed as to the validity of the last in time nominations, I made declarations identifying the various irregularities that have occurred in the elections. Those are true declarations of right, made in the exercise of the power granted to the Court by s 21(1) of the Federal Court of Australia Act 1976 (Cth), because they resolve a controversy between the parties about the validity of nominations, and lay down the basis on which the returning officers can act in the continued conduct of the elections. The irregularities are the acceptance of the nominations of: Mr Reid for State Secretary, Victoria; Mr Wisniewski for State Secretary, Victoria; Mr McMinimee for Assistant State Secretary (Metals and Engineering Members), Victoria; and Mr Campbell for Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria. 31 Section 206(5) of Sch 1 to the WR Act provides: 'The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.' It is almost axiomatic that the continuance of an election in which a person not entitled to be a candidate is treated as a candidate, or a person entitled to be a candidate is not treated as a candidate, may affect the result of the election. It is unnecessary to look at the question whether circumstances exist that give rise to a likelihood that similar irregularities may have happened or may happen. The absence of the name of a proper candidate from the ballot papers, and the presence of the name of a candidate whose name should not be present on the ballot papers, have the potential to falsify the result of the election. The former prevents those voters who would have chosen to vote in favour of the absent but entitled candidate from exercising their right to vote. The latter is likely to cause some voters to throw away their votes on a candidate for whom they do not have a right to vote. If a sufficient number should do so, that candidate may be elected, and the result of the election would be thereby falsified. The only way to ensure that the result of the election is not affected is to ensure that only the names of candidates entitled to be nominated for particular offices, and the names of all candidates entitled to be nominated for particular offices, appear on the ballot papers in respect of those offices.


case_text: The Court finds that there is no scope for the application of the doctrine of legitimate expectation as claimed since the obligations of Australia concerning extradition are wholly contained in the Extradition Act . There has been no claim of ambiguity in the provisions of the Extradition Act and the decision of the Minister made pursuant to it is not the subject of challenge by the applicant. Further there is no decision in respect of which a writ of prohibition could issue. To obtain a grant of injunctive relief the applicant must show the existence of a legal or equitable right, the protection of which the grant of such relief could ensure: see Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at [91] . No such rights exist. For the reasons provided above, the applicant has no basis for relief. 35 It follows that the proceedings must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 14 November 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: N. Beaumont Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 November 2007 Date of Judgment: 14 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1693.html


case_text: The stages in the legislative extradition scheme were described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, which was referred to by the Full Court in Rivera [2007] FCAFC 123. For convenience, the Court will restate the process as quoted from Harris 52 FCR 389 by the Full Court as follows: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.


case_text: The applicant submits that Australia's ratification of the Torture Convention also provides the foundation for a legitimate expectation that Australia's Convention obligations would prevail over the Minister's decision to execute the surrender warrant. In support of such submission the applicant relies upon the decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, especially the observations of Mason CJ and Deane J at 290-291 where there Honours said: Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (45), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (46) and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. 17 Relying upon such extract, the applicant submits that Australia's obligations to act in accordance with the provisions of the Torture Convention are embodied in domestic law. Further, those obligations must be given full effect since Australia is a party to the Vienna Convention on the Law of Treaties ('the Vienna Convention') and pursuant to Article 43 of the Vienna Convention Australia is bound to give effect to the Torture Convention. Article 43 provides: The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. 18 Article 26 thereof reinforces the above obligation and provides: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 26 The statements contained in Teoh [1995] HCA 20 ; 183 CLR 273 relied upon by the applicant do not assist him in the present proceedings. The ratification of an international convention gives rise to a legitimate expectation that ' the executive government and its agencies' will act in conformity with the terms of such convention, absent ' statutory or executive indications to the contrary ' (see Teoh 183 CLR 291). There is no scope for argument that the Minister has not acted in conformity with the provisions of the Torture Convention by ignoring the possibility of torture on return, since provisions to safeguard such consequence have been enacted in domestic legislation by s 22(3)(b) of the Extradition Act . The Minister is bound to follow the provisions of the Extradition Act , which he did, and as such there is no basis upon which the claimed breach of procedural fairness brought about by a legitimate expectation of conformity with the Torture Convention could arise. 27 The affidavit of Ms Kristy Lee Alexander, solicitor for the Minister, sworn on 29 August 2007, filed in the High Court in support of an application for expedition of the applicant's application for special leave, states the action proposed to be taken by the Minister once the applicant's application for special leave to the High Court had been determined. However, such action did not involve the making of any further decision by the Minister as the implementation of the extradition process had been invoked by the decision made under s 22(2) of the Extradition Act . Rather the affidavit simply described the steps which would be taken to complete the extradition. No obligation existed upon the Minister to inform the applicant of such procedures. 28 By letter dated 16 April 2007 to the UN the applicant requested that he be provided with some documentation which he might use at the hearing before the Full Federal Court on 18 May 2007 for the purposes of his appeal. The letter asserts that racial segregation is a form of torture, and after seeking information upon the question whether racial segregation in prisons in California constitute 'torture' within the Convention definition the letter states: As I understand it, the Committee only meets twice a year to determine filed communications. I appreciate that this process may be lengthy. However, my appeal will be heard on 18 May 2007. I kindly ask if your office could provide me with something tangible to put before the Australian court that would show the Committee's provisional view on my prospects of success involving the outcome of this communication.


case_text: The applicant further submits that between April 2007 and September 2007 the Minister did not give any indication that he would execute the surrender warrant without first providing the applicant the opportunity of having his communication determined by the UN Committee. Had he had such opportunity, the applicant says he would have sought the application of interim measures which were referred to in the UN letter detailed above. The applicant claims that by implication Australia's obligations would require it to abide by the provisions of Article 3(2) of the Torture Convention. In support of such submission the applicant relies upon Nagaratnam v Minister for Immigration and Multicultural Affairs [1999] FCA 176 ; (1999) 84 FCR 569 at 580 where Lee and Katz JJ referred to Australia's ratification of the Torture Convention and particularly to Australia's obligation under Article 3(1) of the Torture Convention. The applicant also relies upon the inaction of the Minister in failing to avail itself of the opportunity to move to strike out the applicant's present application before this Court upon the ground that it disclosed no reasonable cause of action. 20 Additionally, the applicant submits that he was not able to lodge his communication with the UN Committee prior to the Minister's s 22 decision because, by virtue of Article 22(5)(b) of the Torture Convention, the UN Committee would not consider any communication from an individual until the individual has exhausted all available domestic avenues of review. The applicant says that the torture he suffered in California at the hands of the police before he left the US 'satisfies the definition of torture' in Article 1 of the Torture Convention which includes 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person' . 21 Significantly, the applicant has emphasised that he does not challenge the Minister's decision to issue the surrender warrant under s 22(2) of the Extradition Act . If such decision is not challenged, the question remains whether there is another decision made by the Minister in respect of which the relief sought can be granted. 30 The decision of the Full Federal Court in Nagaratnam [1999] FCA 176 ; 84 FCR 569 is not authority for the proposition argued by the applicant, namely that Australia has an obligation to allow the UN Committee to determine communications such as that made by the applicant prior to the execution of a surrender warrant. Whilst reference was made in that decision to Article 3(1) of the Torture Convention, no reference was made to the statutory requirement provided in s 22(3)(b) of the Extradition Act . Even if Australia were in breach of its international obligations under Article 3(1) of the Torture Convention, this is a separate issue which does not impact upon the rights of the applicant which are governed solely by Australian domestic legislation.


case_outcome: referred to

case_title: Port of Melbourne Authority v Anshun Pty Ltd (1981) 14 7 CLR 589

case_text: The Minister submits that the applicant is estopped from now seeking to raise his communication to the UN Committee by the doctrine of res judicata, since it was not raised before Moore J as a ground to challenge the Minister's decision, and relies upon Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10 at [36] - [54] . The applicant submits that he could not have lodged his communication with the UN prior to the delivery of his Honour's judgment, since he was required by Article 22(5)(b) of the Torture Convention to first 'exhaust all available domestic remedies' .


case_text: On 31 August 2006 the Minister made the surrender determination pursuant to s 22 of Extradition Act ('the surrender decision'). By application filed on 6 September 2007 pursuant to s 39B of the Judiciary Act , the applicant applied to this Court in relation to the surrender decision. Moore J dismissed the application on 21 December 2006: see Rivera v Minister for Justice and Customs [2006] FCA 1784. The applicant appealed from the decision of Moore J to the Full Court of this Court. Such appeal was dismissed on 9 August 2007: see Rivera v Minister for Justice and Customs [2007] FCAFC 123. 22 The stages in the legislative extradition scheme were described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, which was referred to by the Full Court in Rivera [2007] FCAFC 123. For convenience, the Court will restate the process as quoted from Harris 52 FCR 389 by the Full Court as follows: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.


case_text: On 31 August 2006 the Minister made the surrender determination pursuant to s 22 of Extradition Act ('the surrender decision'). By application filed on 6 September 2007 pursuant to s 39B of the Judiciary Act , the applicant applied to this Court in relation to the surrender decision. Moore J dismissed the application on 21 December 2006: see Rivera v Minister for Justice and Customs [2006] FCA 1784. The applicant appealed from the decision of Moore J to the Full Court of this Court. Such appeal was dismissed on 9 August 2007: see Rivera v Minister for Justice and Customs [2007] FCAFC 123. 10 The applicant submitted that the decision which he was challenging was not the surrender decision under s 22 of the Extradition Act which had already been the subject of challenge before Moore J, the Full Federal Court and the High Court. Rather, his challenge is made to the Minister's decision to proceed to execute the surrender warrant before the applicant's communication with the UN Committee has been determined and while the applicant's ongoing litigation remains unresolved. 11 The applicant submitted that Article 3 of the Torture Convention entitles him to remain in Australia pending the determination of the UN. Article 3 provides: 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. 12 The applicant also relies upon Article 22(1) of the Torture Convention which provides: A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. and Article 22(5)(b) of the Torture Convention which provides that the committee shall not consider a communication from a person unless it is satisfied that: The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.


case_title: Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614

case_text: The applicant submits that Chapter III of the Australian Constitution provides a foundation for his legitimate expectation that he would be permitted to conduct outstanding litigation before the execution of the surrender warrant. He relies upon the dissenting judgment of Kirby J in Vasiljkovic v The Commonwealth of Australia and Others (2006) 237 CLR 614 especially at [157]-[159] and submits that the act of the Executive arm of government in executing the warrant for surrender interferes with the role of the Judiciary. The applicant further submits that it is immaterial to his legitimate expectation arising under Chapter III of the Constitution that his communication to the UN Committee was made subsequent to the surrender decision. 31 Whilst the applicant relied upon the observations of Kirby J in Vasiljkovic 237 CLR 614 it is clear that his Honour's observations that the Judiciary prevails over the Executive in extradition matters were pivotal to his dissenting judgment. The majority in the High Court held that Part II of the Extradition Act (which incorporates ss 12 to 27 inclusive) is a valid exercise of the power of the Commonwealth.


case_outcome: distinguished

case_text: The Minister submits that the applicant is estopped from now seeking to raise his communication to the UN Committee by the doctrine of res judicata, since it was not raised before Moore J as a ground to challenge the Minister's decision, and relies upon Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10 at [36] - [54] . The applicant submits that he could not have lodged his communication with the UN prior to the delivery of his Honour's judgment, since he was required by Article 22(5)(b) of the Torture Convention to first 'exhaust all available domestic remedies' . 33 Since the hearing and delivery of Moore J's decision occurred prior to the applicant making his communication to the UN Committee, the issue could not properly belong 'to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation' , as referred to in Wong [2004] FCAFC 242 ; 146 FCR 10. Accordingly, the doctrine of issue estoppel and res judicata does not apply in relation to the issue of the applicant's communication to the UN before the Full Court hearing the appeal from Moore J's decision. The Court considers that the applicant is not estopped from raising such issue in this application.


case_text: In my opinion orders giving effect to the proposed replacements of the various liquidators, administrators and trustees can and should be made. In relation to the application under the Trustees Act I regard that application as falling within the accrued jurisdiction of the Court by reason of the close connection between the Creditors' Trusts and the Deeds of Company Arrangement to which they related. The replacement of the trustees arises out of the same set of events as has given rise to the application for the appointment of new liquidators and deed administrators. Although the term "the Court" in s 77 of the Trustees Act is defined as the Supreme Court of Western Australia, this Court may exercise the jurisdiction as part of its federal jurisdiction in accordance with Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559. 59 I do not consider it necessary to make the various declarations of vacancy which were sought in the originating applications. Moreover, in my opinion, the text of the letters proposed to be sent to the creditors should not be framed so as to give the appearance that any of the liquidators, administrators or trustees has been removed by order of the Court. 60 So far as the costs are concerned, I have had regard to the submissions of the plaintiffs that they should be treated as costs in the liquidations, deed administrations and trusteeships affected by these orders. It was submitted that the reorganisation should be regarded as an incident of the administrations and should, in effect, be part of their overhead costs. I do not accept that submission. In my opinion it is quite inappropriate that costs flowing from a voluntary restructuring of the firm whose members have assumed these various offices should effectively be visited upon creditors. I can see no reasonable basis upon which the orders sought could properly be made. The costs orders will be refused and I will make orders to make it clear that these costs are not recoverable out of the assets of the companies or trusts affected by them. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 6 November 2007 Counsel for the Plaintiffs: Mr JE Scovell Solicitor for the Plaintiffs: Lavan Legal Date of Hearing: 23 October 2007 Date of Orders: Date of Publication of Reasons: 31 October 2007 and 6 November 2007 6 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1687.html


case_title: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty ltd Creditors Trust Deed [2003] WASC 39

case_text: The ASIC guideline notes that it is usual for the deed of company arrangement to be effectuated and to terminate after creditors' claims against the company have been removed in that way. When the deed of company arrangement terminates, the company ceases to be externally administered, the directors regain full control and it is no longer required to use the endorsement "subject to deed of company arrangement" on its public documents: see s 450E(2) of the Act. The relevant ASIC guideline is entitled 'External administration: Deeds of company arrangement involving a creditors' trust A Guide for registered liquidators appointed under Part 5.3A '. The guide is numbered Regulatory Guide 82 and was published in May 2005. The regulatory guide is quoted as an explanation of the creditors' trust in Ford's Principles of Corporations Law , (Butterworths) Part VII Chapter 26 at [26.200]. Creditors' trusts have been helpfully discussed in Heaver-Wren T, "DOCA Termination through Creditors' Trust Deeds" (2004) 12 Insolv LJ 117-120; see also McKenzie R, "Creditors' Trusts and the ASIC Guidelines" (2005) 17(3) Australian Insolvency Journal 4-6; Proudman D, "Some Issues Surrounding Creditors' Trust Deeds Parts 1 and 2 " (2005) 6 INSLB 1-5 and 31-34. The mechanism has been touched on in the Supreme Court decisions: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty Ltd Creditors Trust Deed [2003] WASC 39 (Pullin J); Open Telecommunications Ltd (Subject to Deed of Company Arrangement) [2003] NSWSC 1198 (Hamilton J) and Rupert Co v Chameleon Mining (2006) 24 ACLC 635 (Austin J).


case_text: On the question of the costs of the application, the plaintiffs submitted that the costs incurred in bringing it were properly incurred in winding up the companies. The liquidators of the companies, it was submitted, should be indemnified from the assets of the companies for the costs incurred in bringing the application on their behalf: In the matter of The Bonang Gold Mining Company, Limited (1893) 14 LR (NSW) Eq 262 and Re Mendarma Pty Ltd (In liq) (No 2) (2007) 61 ACSR 601.


case_text: The ASIC guideline notes that it is usual for the deed of company arrangement to be effectuated and to terminate after creditors' claims against the company have been removed in that way. When the deed of company arrangement terminates, the company ceases to be externally administered, the directors regain full control and it is no longer required to use the endorsement "subject to deed of company arrangement" on its public documents: see s 450E(2) of the Act. The relevant ASIC guideline is entitled 'External administration: Deeds of company arrangement involving a creditors' trust A Guide for registered liquidators appointed under Part 5.3A '. The guide is numbered Regulatory Guide 82 and was published in May 2005. The regulatory guide is quoted as an explanation of the creditors' trust in Ford's Principles of Corporations Law , (Butterworths) Part VII Chapter 26 at [26.200]. Creditors' trusts have been helpfully discussed in Heaver-Wren T, "DOCA Termination through Creditors' Trust Deeds" (2004) 12 Insolv LJ 117-120; see also McKenzie R, "Creditors' Trusts and the ASIC Guidelines" (2005) 17(3) Australian Insolvency Journal 4-6; Proudman D, "Some Issues Surrounding Creditors' Trust Deeds Parts 1 and 2 " (2005) 6 INSLB 1-5 and 31-34. The mechanism has been touched on in the Supreme Court decisions: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty Ltd Creditors Trust Deed [2003] WASC 39 (Pullin J); Open Telecommunications Ltd (Subject to Deed of Company Arrangement) [2003] NSWSC 1198 (Hamilton J) and Rupert Co v Chameleon Mining (2006) 24 ACLC 635 (Austin J). 50 In Open Telecommunications Ltd (Subject to Deed of Company Arrangement) [2003] NSWSC 1198 a deed administrator applied to Hamilton J for directions under s 447D of the Act that he would be justified in executing and giving effect to a varied deed of company arrangement and a proposed creditors' trust deed. In discussing the creditors' trust deed, Hamilton J observed (at [4]): The mechanism proposed by the deed administrator is quite ingenious. It is for the adoption of an amended DCA coupled with a creditors' trust deed. This would remove the sums promised to creditors from the ambit of the DCA to the ambit of a deed of trust. When this is done, the DCA could be discharged; the company would no longer be subject to a DCA; and it is likely that it could be restored to the Stock Exchange board and the contemplated additional capital sums raised, both to feed the promised amounts into a scheme for the creditors and to restore the company to viability. Although this would take the management of the money outside the ambit of the CA, it would be held and supervised in the creditors' interests according to the general law of trusts and their position would be thus protected. Even disputes as to entitlement, if they arose, would have a mechanism for their resolution through the provisions of s 63 of the Trustee Act 1925 . His Honour held in that case that there could be no objection on the ground of legality or propriety to the course that the administrator proposed to follow and gave directions accordingly. The arrangement was, of course, subject to approval by the creditors for its implementation.


case_text: In support of the application in WAD177 of 2007 it was said that the practical effect of the orders proposed would be that Messrs Rocke and Herbert would be removed in their capacity as liquidators of DUSM. I interpolate that the removal would be affected as a consequence of their tendering their resignations. As Barrett J set out in Re Application of Vouris (2004) 49 ACSR 543 the Act is silent on the effect of the resignation of one of several jointly appointed liquidators in a voluntary winding up. Messrs Read and Birch would fill the vacancies in the office of liquidator arising by reason of the resignations of Messrs Rocke and Herbert. Mr Ashton would be removed in his capacity as liquidator of Keyros and Mr Birch would fill the resulting vacancy. The costs of the application, if the orders sought were made, would be apportioned equally between DUSM and Keyros. 35 It was submitted that pursuant to s 502 of the Act the Court may fill a vacancy in the office of a liquidator where such a vacancy exists. Reference was made to the judgment of Barrett J in Re McGrath and Anor (as liqs of HIH Insurance Ltd (in liq)) (2005) 54 ACSR 55 in which it was held that the Court can make a prospective order appointing a liquidator contingent upon a vacancy being created by the liquidator's resignation. Re Application of Vouris (2004) 49 ACSR 543 was also cited. 40 Reference was made to s 449D of the Act and the decision of Barrett J in Re Application of Vouris 49 ACSR 543 that the Court can make a prospective order appointing a deed administrator contingent upon a vacancy being created by the resignation of a deed administrator. Reference was made also to s 447A as providing the Court with a very wide power to make such order as it thinks appropriate. Barrett J considered that the powers conferred on the Court by s 447A of the Act were wide enough to give the Court power to appoint a joint and several deed administrator. 41 In relation to the Creditors' Trusts reliance was placed on s 77 of the Trustees Act and s 93 of that Act under which an existing or incumbent trustee could bring to Court an application under s 77. 42 In relation to the resignation of Mr Rocke as a joint and several deed administrator, reference was made to the difficulty identified by Barrett J in Re Application of Vouris 49 ACSR 543 where a joint and several liquidator resigns or dies leaving only one of the joint and several liquidators remaining. Barrett J, it was said, held that two options were available to the Court in those situations: 1. Appoint a second liquidator jointly and severally to fill the vacancy; or 2. Remove the remaining jointly and severally appointed liquidator and then appoint the previously remaining liquidator as a sole liquidator. 43 It was said that in the case of a deed of administration the difficulties identified in Re Application of Vouris 49 ACSR 543 would not arise where two or more deed administrators remained jointly and severally appointed. The plaintiffs submitted that Birch and Read remained jointly and severally appointed deed administrators of the companies from which Mr Rocke had offered his resignation so that no vacancy in the office of a joint and several deed administrator arose by reason of that resignation. 44 It was said that the proposed orders both in respect of the deeds of administration and the creditors' trusts would not prejudice creditors. Notification and the liberty to apply would give any objecting creditor an opportunity to approach the Court. 45 Again, it was submitted that pursuant to s 443 of the Act a deed administrator had priority to recover costs and expenses properly incurred from company assets. Section 71 of the Trustees Act provided a trustee with the ability to recover costs and expenses properly incurred from trust assets. The plaintiffs submitted that the costs incurred in bringing the application were properly incurred in the administration of the deeds and the Creditors' Trusts. On that basis the deed administrators and trustees should be indemnified from the assets of the companies for the costs incurred in bringing this application on their behalf. It was submitted that the costs be apportioned equally between the companies.


case_text: It was submitted that pursuant to s 502 of the Act the Court may fill a vacancy in the office of a liquidator where such a vacancy exists. Reference was made to the judgment of Barrett J in Re McGrath and Anor (as liqs of HIH Insurance Ltd (in liq)) (2005) 54 ACSR 55 in which it was held that the Court can make a prospective order appointing a liquidator contingent upon a vacancy being created by the liquidator's resignation. Re Application of Vouris (2004) 49 ACSR 543 was also cited.


case_title: Re Memdarma Pty Ltd (In liq) (No 2) (2007) 61 ACSR 601


case_text: The ASIC guideline notes that it is usual for the deed of company arrangement to be effectuated and to terminate after creditors' claims against the company have been removed in that way. When the deed of company arrangement terminates, the company ceases to be externally administered, the directors regain full control and it is no longer required to use the endorsement "subject to deed of company arrangement" on its public documents: see s 450E(2) of the Act. The relevant ASIC guideline is entitled 'External administration: Deeds of company arrangement involving a creditors' trust A Guide for registered liquidators appointed under Part 5.3A '. The guide is numbered Regulatory Guide 82 and was published in May 2005. The regulatory guide is quoted as an explanation of the creditors' trust in Ford's Principles of Corporations Law , (Butterworths) Part VII Chapter 26 at [26.200]. Creditors' trusts have been helpfully discussed in Heaver-Wren T, "DOCA Termination through Creditors' Trust Deeds" (2004) 12 Insolv LJ 117-120; see also McKenzie R, "Creditors' Trusts and the ASIC Guidelines" (2005) 17(3) Australian Insolvency Journal 4-6; Proudman D, "Some Issues Surrounding Creditors' Trust Deeds Parts 1 and 2 " (2005) 6 INSLB 1-5 and 31-34. The mechanism has been touched on in the Supreme Court decisions: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty Ltd Creditors Trust Deed [2003] WASC 39 (Pullin J); Open Telecommunications Ltd (Subject to Deed of Company Arrangement) [2003] NSWSC 1198 (Hamilton J) and Rupert Co v Chameleon Mining (2006) 24 ACLC 635 (Austin J). 51 In Rupert Co 24 ACLC 635, Austin J terminated a winding up of a company under s 482 of the Act having regard to the effect of a deed of company arrangement and creditors' trust which left the company with no significant body of creditors. As a result of those arrangements, it was solvent. The liquidator had advertised for creditors to lodge their claims against the trust. Describing the effect of the deed of company arrangement and the creditors' trust his Honour said (at [18]): ... the effect of the DOCA and the Creditors' Trust is to transfer the creditors' claims to the Trust and release the company from liability to pay those debts. He observed that the arrangements appeared to conform to the ASIC guidelines of May 2005 and that ASIC did not oppose the application. 52 The three creditors' trusts affected by the proposed orders are the KPI Creditors' Trust, the Banwell Creditors' Trust and the Carr Civil Contracting Creditors' Trust. 53 The terms of the KPI Creditors' Trust are found in an amended Creditors' Trust Deed which was executed in December 2003 and took effect upon the termination of an amended varied deed of company arrangement executed by the company and the administrators on the execution date. The trust assets comprised the company's assets, a fund and the sum of $10. The fund was to be formed from the proceeds of realisation of the company's assets. Those assets were all of the company's assets or property and all of the assets or property of the KPI Tri Unit Trust and the KPI Trust No 2. Relevantly, cl 6 provided: 6.1 The Trustees shall consider the Claims of each of the Creditors for the purpose of determining the Creditors' Entitlements under this Trust Deed. 6.2 For the purposes of determining the Entitlements, to the extent that those Entitlements have not been determined under the Amended Varied DOCA, regulations 5.6.39 to 5.6.72 of the Corporations Regulations shall apply to this Trust Deed and to the Trustees as if the reference to the liquidator were references to the Trustees and references to winding up were references to this Trust Deed and with such other modifications as are necessary to give effect to this Trust Deed. 6.3 Subdivision A to E of Division 6 of Part 5.6 of the Corporations Act apply to the admission of Claims and payment of Entitlements under this Trust Deed as if the references to winding-up were references to this Trust Deed and with such other modifications as are necessary to give effect to this Trust Deed.


case_text: Universal Holidays Pty Ltd v Tseng [2008] FCA 1011 , Lander J dismissed an application by Mr Garrett to be joined in the cross-claim in the proceeding as the sole trustee of the Garrett Family Trust. The sole issue upon that application was whether in fact the Garrett Family Trust, of which Mr Garrett claimed to be a trustee, had ever existed. After a detailed consideration of the evidence Lander J concluded relevantly that there is not, and never has been, a separate entity called the Garrett Family Trust of which Mr Garrett was one of the trustees: [121]. His Honour held that the expression "the Garrett Family Trust" when used in certain "transactional documents" was a reference to the Andrew Garrett Family Trust which was then the only relevant trust in existence. The application was accordingly dismissed. Mr Garrett sought leave to appeal against the orders of Lander J dismissing his application. That application was refused by Lander J on 8 September 2008. In dismissing the application for leave Lander J observed that Mr Garrett was in effect seeking to re-litigate before the Full Court on different terms and on different evidence than the application which has previously been before him: Garrett v Macks [2008] FCA 1419 at [26] .


case_title: Garrett v Macks [2008] FCA 1419

case_text: Garrett sought leave to appeal against the orders of Lander J dismissing his application. That application was refused by Lander J on 8 September 2008. In dismissing the application for leave Lander J observed that Mr Garrett was in effect seeking to re-litigate before the Full Court on different terms and on different evidence than the application which has previously been before him: Garrett v Macks [2008] FCA 1419 at [26] .


case_text: relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a 'real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties. The person seeking relief must have a "real interest": Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582.


case_title: Forster v Jododex Australia Aust Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421

case_text: person seeking the declaration must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 per Gibbs J at 437; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [8] .


case_title: Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085


case_text: case is not "real", for this purpose, when the issue to be determined is divorced from the facts to which it relates. A general declaration "in air", which is unrelated to specific facts, may not resolve the dispute between the parties: Martin v Taylor [2000] FCA 1002. Nor is the case "real" if by granting a declaration the Court will be acting in an advisory way and will not be quelling an existing controversy or establishing any immediate right, duty or liability between the parties: Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394.


case_title: Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334

case_text: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 356 [48] the majority observed that one crucial difference between an advisory opinion and a declaratory judgment was the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. They then adopted, with apparent approval, what is found in Zamir & Woolf, 'The Declaratory Judgment', (1993) 2 nd Ed where it was emphasised that where the dispute is divorced from the facts it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. In my opinion such is the situation here. The declarations sought are not directed to a resolution of the complex factual matters adverted to by Mr Garrett in his correspondence addressed to Fosters Group Ltd although in a very limited way they may relate to them. The affidavit does not clarify the interest which is said to be the subject of the declarations sought. Furthermore the application filed by Mr Garrett does not name any respondents.


case_text: The status of the applicant as an advocate for environmental protection is said not to be a sufficient reason to deny Gunns its costs. Support for this argument is found in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171 per Burchett J, where his Honour states, in similar circumstances to the present case: If a body is set up to pursue causes, which its founders consider to be in the public interest, ... it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs. This proposition was also quoted with apparent approval by the Full Court in Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 5) [1998] FCA 432 ; (1998) 84 FCR 186 at 188.


case_text: There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] .


case_text: In Donald Campbell & Co Ltd v Pollak [1927] AC 732 the House of Lords examined the Court of Appeal's discretion to award costs, framed in similar terms to the Federal Court Act, by s 5 of the Judicature Act 1890 (UK). In that case Viscount Cave LC said at 811-812 (Viscount Dunedin, Lord Phillimore and Lord Carson agreeing): A successful defendant ... has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; ... and the Court has an absolute and unfettered discretion to award or not to award them. This discretion like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. 6 More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell & Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation.


case_title: Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 5) [1998] FCA 432 ; (1998) 84 FCR 186


case_text: More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell & Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 7 Gunns submits that costs should follow the event. Gunns points to the practice of this Court that ordinarily costs follow the event. In that case, the unsuccessful party pays the costs of the successful party, the principle being that the successful party is compensated for the costs of running a successful case. In support of that proposition, Gunns points to a number of authorities including Latoudis per Mason CJ at 543, where his Honour states that: costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings ...


case_title: Mees v Kemp (No 2) [2004] FCA 549


case_outcome: applied

case_text: More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell & Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 8 Further, in Oshlack McHugh J states at 97 that "the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour". Gunns' submissions point out that TWS was wholly unsuccessful on all points raised under ss 5 and 6 of the AD(JR) Act and that it cannot claim to have been successful or partially successful on any point raised at trial. Further, Gunns states that it expended considerable funds in defence of its legitimate commercial interests and, as a result, it is appropriate to the make the usual order as to costs, namely, that costs follow the event and the successful party have its costs paid by the unsuccessful party. 9 Gunns submits that there are no recognised exceptions to the usual order that costs follow the event that would apply to this case. Gunns submits there are no special circumstances or factors connected with the case that would justify a departure from the usual order as to costs, such as, disentitling conduct, or "misconduct relating to the litigation, or the circumstances leading up to the litigation": see, Oshlack per McHugh J at 97. Gunns claims that it had no choice but to defend the litigation as it constituted a substantial attack on its legal interests under the EPBC Act and on its commercial interests as the designated proponent of the pulp mill proposal. Absent any recognised exceptions to the general rule, Gunns submits, costs should follow the event. 10 Furthermore, Gunns argues that the concept of 'public interest litigation' is not a recognised exception to the rule that costs follow the event. In support of that proposition, Gunns relies on Oshlack where Brennan CJ said at 75 that the public interest nature of the proceeding "does not provide a sufficient reason by itself for refusing the successful respondent its costs", and McHugh J at 91 characterised the public interest as "irrelevant" to the question of costs. In particular, Gaudron and Gummow JJ approved of the concept that "something more" than the characterisation of litigation as "public interest litigation" is needed before a successful respondent is denied its costs: see, Oshlack at 91. Importantly, this is so because the concept of 'public interest litigation' is "a 'nebulous concept' unless given... further content of a legally normative nature": see, Oshalck per Gaudron and Gummow JJ at 84. 11 In any event, Gunns submits that the current proceeding was not brought in the public interest. As far as the motives of the applicant in instituting the proceeding against the first respondent, Gunns claims that TWS litigated as part of a deliberate campaign to stop development of the pulp mill. Gunns says TWS did not bring the proceeding to test any question of law concerning the administration of the EPBC Act or for any reasons of broader public interest. In this case, Gunns claims, the litigation was brought as an attack on its legitimate commercial interests. 15 There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] . 19 The breadth of the discretion to award costs against a successful defendant is explored in the case of Oshlack where Gaudron and Gummow JJ (Kirby J agreeing) held at 91 that the trial judge's discretion to award costs under s 69(2) of the Land and Environment Court Act 1979 (NSW) had not miscarried when he took into consideration the "special circumstances" of the case including the motivation of the litigant, the public interest and notoriety generated by the case, and the difficult points of law raised by the case. That case stands for the principle that the Court's discretion is broad and it is necessary for the trial judge to weigh any special circumstances, including public interest considerations, that are connected with or leading up to the litigation, in determining whether to deny a wholly successful respondent its costs. 20 For TWS, the overriding public interest is said to be twofold. First, the protection of the environment generally and second, the proper administration of justice, that is, the public interest that decision making under the EPBC Act is lawfully undertaken. 21 Furthermore, TWS submits that the present case reveals additional factors that would warrant a departure from the usual order as to costs. They are: • the statutory nature of the decisions made by the Minister including the complex environmental, factual and legal setting in which the decisions were made; • the identity of the applicant and the nature of the challenge brought by TWS concerning the issues raised and the merits of the argument; and • the importance of access to the courts to enable judicial supervision of important environmental issues. 22 The first point raises arguments in favour of the importance of the proper administration of justice and of the EPBC Act. The EPBC Act contains important matters relating to the conservation and management of the Australian environment including matters concerning Australia's international obligations. These submissions point out that the Gunns pulp mill is a massive undertaking with a significant impact on the environment and that the approval or otherwise of the pulp mill remains a matter of great controversy both within and outside Tasmania. 23 In regard to the second point, TWS submits that it has brought the proceeding solely in the public interest and not for a private or personal gain. TWS is a community-based environmental advocacy organisation whose mission is to protect, promote and restore wilderness and natural processes across Australia for the survival and ongoing evolution of life on Earth: The Wilderness Society (The Wilderness Society, Hobart) http://www.wilderness.org.au/ viewed 20 October 2007. The extended standing provisions of s 487 of the EPBC Act are said to allow for such public interest litigation by TWS. 24 On the third point, TWS submits that encouraging access to the courts is a legitimate reason for departing from the usual orders as to costs. TWS submits that a costs order in its favour will preserve the role of public interest litigants in the Federal Court, thereby allowing for decisions made by the Minister under the EPBC Act to be scrutinised in the public interest.


case_text: In support of that proposition, TWS points to authority that where two defendants have in effect common cause only one set of costs should be awarded; R v Industrial Disputes Tribunal; ex parte American Express Co Inc [1954] 2 All ER 764; Sorell Council v State of Tasmania (No 2) [2004] TASSC 101. Both cases can be distinguished from the present case on the basis that the successful defendants were joined on their own application and, in the latter case, the ultimately unsuccessful plaintiff enjoyed partial success on some minor points.


case_text: More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell & Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 18 TWS relies on the existence of the Court's discretion not to award costs in favour of a successful party. In particular, TWS submits that the public interest nature of the proceedings is a recognised basis for departing from the usual order as to costs: see, Ruddock per Black CJ and French J at 236 who said that despite the difficulties associated with the broad meaning of the 'public interest': The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.


case_text: There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] . 16 In addition, the Minister submits that Save the Ridge is authority for two relevant propositions. First, that a proceeding brought for reasons other than personal financial gain is not sufficient reason to depart from the usual order as to costs. Second, that the extended standing provisions of ss 478 and 488 of the EPBC Act do not alter the rules relating to payment of costs. Accordingly, the Minster submits that he should receive his costs of the litigation. 17 TWS submits that the Court should make no order as to costs. In the alternative, it contends the first respondent Minister should be entitled to 50% of his costs, and the second respondent Gunns should either not be entitled to its costs or, at most, a small proportion of its costs, significantly less that 50%. 31 The case is finely balanced. TWS points to a number of factors or special circumstances that support its contentions including: the protection of the environment; the proper administration of the EPBC Act; its altruistic motives in commencing the proceeding under the extended standing provisions of the EPBC Act; and the importance of not discouraging access to the courts. These considerations are all relevant. However, they could be common to many other proceedings challenging matters of public administration or matters concerning the protection of the environment. They are insufficient to wholly displace both respondents' legitimate expectations that, having enjoyed complete success, they would be awarded their costs. TWS's case was not in the nature of a test case nor did it raise especially difficult legal questions of general importance. The standing provisions of the EPBC Act do not alter the ambit of the discretion conferred by s 43 of the Federal Court Act even though s 487(3) of the EPBC Act specifically extends standing to organisations that are engaged in activities for, or whose object is, the protection or conservation of the environment: see, Save the Ridge at 415. In the context of encouraging access to the courts, it is equally valid to say that a respondent should not be discouraged from mounting its defence in an appropriate fashion. 32 Further, TWS's alternative submission is flawed in that it claims that Gunns had no reason to actively participate in the proceeding and therefore, should not be awarded its costs. Gunns was made a party to the proceeding on the application of TWS and had a clear interest in defending the circumstances under which it made the referral of the pulp mill proposal to the Minister. Gunns was entitled to defend its interests in the proceeding brought by TWS and did so in an appropriate manner. 33 For these reasons TWS should pay the costs of the respondents.


case_title: South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411


case_title: Sorell Council v State of Tasmania (No 2) [2004] TASSC 101


case_text: In the alternative, TWS submits that the Minister should only be awarded 50% of his costs. The reason for the submission is that two applications where brought challenging the Minister's decisions on substantially identical grounds, one by TWS and one by The Investors for the Future of Tasmania Inc (IFT): see, The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179. Both cases were heard together and evidence in one was evidence in the other. Therefore, in order to justly compensate the Minister only a 50% award of costs is justified against TWS and likewise a 50% award against IFT. 26 In regard to Gunns' costs, as stated, TWS submits that Gunns should not be awarded its costs. TWS points to a number of reasons why this should be additional to the public interest considerations outlined above. TWS submits that there was no reason for Gunns to actively participate in the proceeding because the proceeding brought by TWS sought only to impugn the decisions of the Minister. Accordingly, Gunns' case was entirely derivative of the Minister's case and there was no need for it to defend the proceeding. In support of this proposition, TWS says that the EPBC Act is not intended to protect the interests of proponents such as Gunns. Any commercial imperative or discrete commercial interest that a proponent might have is extraneous to the EPBC Act and the only interest that Gunns can be said to have is that the Minister's decisions are made according to law. That interest was always going to be properly defended by the Minister, so it is submitted.


case_text: proceeding is an appeal from orders of the Federal Magistrates Court of Australia ( Applicant S142/2003 v Minister for Immigration & Anor [2008] FMCA 969) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 2 November 2007 and published on 6 November 2007. By that decision, the Tribunal affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the appellant, a national of Bangladesh. The appellant contends by his notice of appeal that his Honour, Federal Magistrate Cameron, erred in a way reflecting jurisdictional error by incorrectly "interpreting" the applicable law and incorrectly "applying" the relevant law to the facts of the case. Secondly, the Tribunal failed, it is said, to comply with s 424A(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act ") by relying on information not put to the appellant and not discussed with the appellant, in reaching its decision. Thirdly, the Tribunal failed, it is said, to comply with s 424A(1)(b) of the Migration Act by failing to give the appellant particulars of "the derivation of adverse evidence which might affect a consideration of whether the information is reliable". Fourthly, it is said that the Tribunal failed to give the appellant any opportunity to contest or comment upon independent country information relied upon by the Tribunal in reaching its decision. These grounds of appeal, however, fail to identify the particular information said to have been relied upon by the Tribunal and not put to the appellant. The appellant was self-represented before this Court with the assistance of an interpreter. The appellant has some understanding of English. He says that he can speak, read and write English although poorly. He speaks, reads and writes the Bengali language. Although these reasons are formulated for the benefit of all parties, the explanation of the basis for the Court's decision is set out with the appellant particularly in mind as the appellant is not represented by legal advisers and an interpreter will be called upon to explain to the appellant the reasons for the decision. I will seek to set out the reasons as plainly as possible. The appellant contends that the decision of the Tribunal is unfair as he has now been in Australia for 10 years. The appellant says he holds a genuine fear of harm should he return to Bangladesh. He says he seeks "a fresh look at his case" by this Court. He says that the first decision of the Tribunal made on 9 October 2001 was set aside and thus his claims were shown to be genuine whereas the second Tribunal failed to examine and consider his claims of involvement in Bangladesh with a political party and claims of harassment of him in Bangladesh by opponents of that political party. To the extent that the appellant is seeking to say that the Tribunal failed to consider his claims of a well-founded fear of persecution based upon his involvement with a political party in Bangladesh through which he gave expression to his political opinions, or that the Tribunal failed to examine evidence of his involvement in the affairs of that political party which he says is the factual foundation for his well-founded fear of persecution (see ss 5(1) , 36 (2), 65 (1) of the Migration Act and Articles 1 and 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ), the appellant is contending that the Tribunal failed to discharge its statutory duty of review conferred upon it by the Migration Act (see ss 411 and 414 of the Migration Act ).