case_title: Re Driller (1972) 21 FLR 159

case_text: While s 134(4) of the Act empowers a trustee to seek directions "in respect of a matter arising in connexion with the administration of the estate", it is well accepted that the Court is not for that reason obliged to give the directions sought: Re Driller (1972) 21 FLR 159. The proper subject of directions, in my view, is the manner in which a trustee should act in carrying out his or her functions as such: cf Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679. Their proper effect, if full disclosure has been made to the Court of the material facts, is to protect the trustee from liability to a creditor or a bankrupt for a breach of duty of office for things done in accordance with the directions: see generally the decision of Sackville J in Sutherland (in matter of Scutts) [1999] FCA 147 at [9] ff. The s 134(4) procedure is not of itself an appropriate vehicle to determine the substantive rights of creditors as against a trustee in bankruptcy or a creditors amongst themselves: Scutts , at [14]; see also Re Lofthouse [2001] FCA 25 ; (2001) 107 FCR 151 at [9] .


case_outcome: cited

case_title: Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674


case_title: Sutherland (in matter of Scutts) [1999] FCA 147


case_outcome: followed

case_text: As Street J held in Re Scott (1970) 16 FLR 416, where partners incur joint and several liability to pay make a payment they are for s 95 purposes liable in respect of distinct contracts (a) as members of the firm and (b) as sole contractors, even if those contracts were contained in the same instrument. Section 95 has its provenance in English Bankruptcy legislation provisions originating in the Bankruptcy Act 1861 (UK) s 152 and achieving its presently relevant form in the Bankruptcy Act 1883 (UK) Sched II r 18 (see also Bankruptcy Act 1914 (UK) Sched 2 r 19). The English legislation was copied in r 244 of the Rules made under the Bankruptcy Act 1924 (Cth) .


case_text: Prior to the 1861 English Act, the common law rule was that a person to whom members of a firm were bound jointly and severally was not allowed to rank as a creditor in the joint and the separate estates but had to elect whether he would rank as a joint creditor or a separate creditor. While the English and Australian legislation to which I have referred did not totally abolish that rule, it rendered the rule "[p]ractically of little consequence": see the short version of this history in Lindley and Banks on Partnership , 27-164 27-167 (18 th ed, 2002). As there pointed out, the common law rule was in real terms confined to torts, frauds etc: see e.g. Ex p Adamson; In re Collie (1878) 8 Ch D 807. The view expressed by Street J merely reflected long standing English authority to the same effect: see Ex p Honey (1871) LR 7 Ch App 178; and what was earlier understood to be orthodox Australian law: see Eastman, Commonwealth Bankruptcy Act 1924-1933 , 650-651 (2 nd ed, 1940).


case_title: Ex p Honey (1871) LR 7 Ch App 178


case_text: I should add for the sake of completeness that the rule that only one proof may be lodged against a single estate in respect of each debt of that estate: see generally Western Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150 at 161-164; has no present relevance. 18 The distinguishing characteristics of joint tenancy are first "the right of survivorship" and second, the presence of "the four unities", being unity of possession, of interest, of title and of time: on joint tenancy see generally Gray and Gray, Elements of Land Law , 11.4 ff (4 th ed, 2005).


case_outcome: discussed

case_text: It was held by the Full Court of this Court in Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 82 ALR 335 that the bankruptcy of one of two joint tenants severs the joint tenancy with the interest of the bankrupt vesting in the Official Trustee or a registered trustee under s 58 of the Act, and the remaining co-owner becoming a tenant in common with the Official Trustee or trustee. The Court said (at 339): "When the estate of the male bankrupt in the land in question became vested in the Official Trustee, the unity of title was immediately destroyed, in that the respective interests of the Official Trustee and the female co-owner in the land did not derive from the same act or document. Nor is there any unity of time between the two estates. The unity of interest also does not exist because the interest of the Official Trustee is impressed with his responsibilities under the Bankruptcy Act 1966 and may, and very likely will, be of less duration than that of his co-owner. The fact that upon the later bankruptcy of the female bankrupt the Official Trustee succeeded to her interest in the land as well, cannot recreate a joint tenancy out of what has become on severance a tenancy-in-common, if for no other reason, because the unities of title and time are not present. Finally on the matter of principle, it could hardly be said that, if the female bankrupt had died after the male bankrupt's bankruptcy but before she herself became bankrupt, the Official Trustee would have succeeded to her estate and interest in the land by survivorship." Later in its reasons, in commenting on Re Boots; Ex parte Official Receiver (1976) 26 FLR 320 (discussed below) where a husband and wife with jointly owned non-partnership assets became bankrupt at the same time, the Court observed (at 340) that "[i]n those circumstances no question of severance of joint tenancies arose". 21 The question in Boots' case was whether, because the husband and wife were "joint debtors" (in consequence of their conduct of the partnership business), their jointly owned real property, though not partnership property, was to be included in their "joint estate" under s 110(1). In holding that that property was part of the joint estate, Riley J clearly proceeded on the premise that no severance of the joint tenancy resulted from the contemporaneous bankruptcy of the joint tenants. The dictum quoted above from Re Francis endorsed the correctness of that premise. In this matter I am being asked to deal directly with whether the Full Court's dictum and the premise of Boots' are correct. 23 There is now a significant body of Australian case law in addition to Re Francis to the effect that the bankruptcy of a joint tenant severs the joint tenancy at law (if the land in question is old system land) or in equity (if the land is held under a title registration system), the involuntary alienation worked by s 58 of the Bankruptcy Act effecting the severance in either case: see generally Sistrom v Urh (1992) 40 FCR 550; Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165; Re Prestia [2001] FCA 792 at [23] - [24] . As Re Francis indicates, that involuntary alienation severs at least two of the "unities" (i.e. of interest and of time). 24 When one turns to where joint tenants are made bankrupt at the same time as joint debtors, a somewhat more complex state of affairs exists. Section 110(1) in express terms contemplates that, in such a case, a joint estate does come into existence. I consider the section envisages that where jointly owned property is alienated to the Official Trustee or trustee by s 58 that property retains that character in the Official Trustee's or trustee's hands. And it does so because as between the joint tenants no act was done by, or to, either or both of the bankrupts other than the bankruptcy itself and its s 58 consequence which could require that the property no longer be considered as joint property to be applied in the payment of their joint debts. To say that the very act which makes the joint property of both available to be utilised under s 110 (i.e. the joint bankruptcy) has the effect of severing what was joint property until that moment is to negate what I consider to be the manifest purpose of s 110. I do not consider that the section requires that construction, hence my agreement with the dictum in Re Francis . 25 Having reached this conclusion I would have to say, though, that I have some difficulty in seeing a principled operation for the right of survivorship of a joint tenant were one of the bankrupts to die during the course of the administration either before or after the jointly owned property was sold. 26 Accordingly, I would direct that the interests of Colin and Marlene as joint tenants in both the Bordertown and Hayborough properties be allocated to the joint estate of Colin and Marlene, this being the only joint estate of which they alone are joint debtors. While they are also joint debtors for the purposes of the partnership estate, the joint debtors for that particular estate are not limited to them alone. They include Colin as well.


case_text: It was held by the Full Court of this Court in Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 82 ALR 335 that the bankruptcy of one of two joint tenants severs the joint tenancy with the interest of the bankrupt vesting in the Official Trustee or a registered trustee under s 58 of the Act, and the remaining co-owner becoming a tenant in common with the Official Trustee or trustee. The Court said (at 339): "When the estate of the male bankrupt in the land in question became vested in the Official Trustee, the unity of title was immediately destroyed, in that the respective interests of the Official Trustee and the female co-owner in the land did not derive from the same act or document. Nor is there any unity of time between the two estates. The unity of interest also does not exist because the interest of the Official Trustee is impressed with his responsibilities under the Bankruptcy Act 1966 and may, and very likely will, be of less duration than that of his co-owner. The fact that upon the later bankruptcy of the female bankrupt the Official Trustee succeeded to her interest in the land as well, cannot recreate a joint tenancy out of what has become on severance a tenancy-in-common, if for no other reason, because the unities of title and time are not present. Finally on the matter of principle, it could hardly be said that, if the female bankrupt had died after the male bankrupt's bankruptcy but before she herself became bankrupt, the Official Trustee would have succeeded to her estate and interest in the land by survivorship." Later in its reasons, in commenting on Re Boots; Ex parte Official Receiver (1976) 26 FLR 320 (discussed below) where a husband and wife with jointly owned non-partnership assets became bankrupt at the same time, the Court observed (at 340) that "[i]n those circumstances no question of severance of joint tenancies arose". 21 The question in Boots' case was whether, because the husband and wife were "joint debtors" (in consequence of their conduct of the partnership business), their jointly owned real property, though not partnership property, was to be included in their "joint estate" under s 110(1). In holding that that property was part of the joint estate, Riley J clearly proceeded on the premise that no severance of the joint tenancy resulted from the contemporaneous bankruptcy of the joint tenants. The dictum quoted above from Re Francis endorsed the correctness of that premise. In this matter I am being asked to deal directly with whether the Full Court's dictum and the premise of Boots' are correct.


case_title: Sistrom v Urh (1992) 40 FCR 550

case_text: There is now a significant body of Australian case law in addition to Re Francis to the effect that the bankruptcy of a joint tenant severs the joint tenancy at law (if the land in question is old system land) or in equity (if the land is held under a title registration system), the involuntary alienation worked by s 58 of the Bankruptcy Act effecting the severance in either case: see generally Sistrom v Urh (1992) 40 FCR 550; Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165; Re Prestia [2001] FCA 792 at [23] - [24] . As Re Francis indicates, that involuntary alienation severs at least two of the "unities" (i.e. of interest and of time).


case_title: Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165


case_title: Re Prestia [2001] FCA 792


case_text: The trustee is not seeking a direction as to whether in the circumstances Craig could have maintained an action against Colin and Marlene "for specific performance to rectify the manner in which he held his interest in the Bordertown property [sic]". Rather, what is sought are directions as to whether he should take any further steps in relation to whether a claim exists and, if so, what steps should be taken in relation to dealing with that claim. The trustee acknowledges that any claim Colin might have has vested in him and that Colin "has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 136. 29 The directions sought are not ones I am prepared to give notwithstanding that they may be of a type that a trustee properly could seek (i.e. concerning the incurring of expense to ascertain whether legal proceedings may be in the interests of creditors and, if there is the prospect of a surplus, the bankrupt). By way of analogy, trustees commonly approach courts under the provisions of the Trustee Acts that obtain in most Australian jurisdictions for directions as to whether to sue or to defend an action: see Jacobs' Law of Trusts in Australia [2134] (7 th ed, 2006). 30 I would preface what I have to say with this comment. A successful claim by Craig against his parents would not result in a nett accretion to the totality of the joint and separate estates being administered by the trustee. However, depending upon whether the outcome of that action was to give Craig a joint tenancy with his parents in part of the Bordertown property or only an additional several interest, the result of his claim could affect both the partnership estate and the joint estate of his parents (in the event of a joint tenancy finding) or the joint estate of his parents and his own separate estate if his additional interest in the property was that of a tenant in common.


case_outcome: applied

case_text: Turning to my reasons for declining to give any directions, the materials put before me are opaque and are quite inadequate insofar as they reveal the possible basis of any claim or claims that might be made. Is it to specifically enforce a contract, in which case what contract and is it in writing: cf Property Law Act (SA) s 29. Is it a Holroyd v Marshall type constructive trust claim based on the consideration for the transfer of an interest having been executed in the steps taken by Craig in relation to the McLaren Vale property: Meagher, Gummow and Lehane's Equity: Doctrines and Remedies , (4 th ed, 2002)? Is the claim based on equitable estoppel? Etc. Equally, with any possible claim being likely to turn critically on the intentions and actions of the three bankrupts, there seems to be no material at all before me from them which might illuminate the matter. I am simply asked to speculate. While I do not have to determine whether or not any proposed proceedings will or will not be successful, I need to investigate the matter sufficiently to determine whether or not any such proceedings would be fruitless: cf Re Lemon Tree Passage & Districts RSL and Citizens Club Cooperative Ltd (1987) 11 ACLR 796 at 799. There is insufficient material before me to make this determination let alone a determination as to whether it would be worthwhile for the trustee to further investigate a possible claim by Craig: Re Lemon Tree Passage , at 799. Hence I decline to give the directions sought. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 20 July 2006 Counsel for the Applicant: Mr A O'Halloran Solicitor for the Applicant: Kelly & Co Date of Hearing: 22 March 2006 Date of Judgment: 20 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/636.html


case_text: the reasons stated by Bell in its written submissions, I do not regard the conduct of Bell as being unreasonable: (see Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No. 3) [2007] FCA 2018 at [13-14] per North J, and Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441).


case_text: REQUISITIONED GENERAL MEETING Bell requisitioned a general meeting, which has been effectively adjourned by reason of this proceeding and by order of the Full Court seeking to maintain the status quo. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days. However, I do not regard this as significant. Normally an important matter is to ensure that at the time of voting, those entitled to vote reflect as far as possible the current membership of a company. The Court should endeavour to make, in accordance with the general policy of the law, the vote of a meeting reflect the views of shareholders identified and entitled to vote at a time as close as possible to the holding of the meeting: (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212) at [6], and Myners, Review of the Impediments to Voting UK Shares (January 2004) at [18]). I have come to the view that, despite the lapse of time, I should not, even if empowered, make an order changing the record date. It seems to me the adjournment has effectively come about because of a Court order, which was to maintain the status quo, pending resolution of the dispute. Further, I am not satisfied that, in making any order changing the record date, no substantial injustice will be, or is likely to be, caused to any person, including those who acted on the basis of the resumed meeting being merely an adjournment of the original meeting. In my view, in the case of an adjourned meeting, and in the absence of special circumstances, the record date should not be changed. The defendants seek an order that Bell pay their costs (including of the first trial) on an indemnity or solicitor-client basis. This is resisted by Bell. Apart from the issue of the first trial, Bell does not put forward submissions against an adverse order as to costs on a party and party basis.


case_title: Jackson v Hamlyn [1953] Ch 577

case_text: REQUISITIONED GENERAL MEETING Bell requisitioned a general meeting, which has been effectively adjourned by reason of this proceeding and by order of the Full Court seeking to maintain the status quo. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days.


case_title: Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No. 3) [2007] FCA 2018


case_text: I do not consider that Bell should pay any costs on an indemnity basis. Up until the second trial, there were objective matters which gave some basis to continue with the proceedings. Finkelstein J found in favour of Bell, and as the Full Court said in Life Therapeutics Limited v Bell IXL Investments Limited [2008] FCAFC 144 at [35] : There was evidence led at trial from which it was open to the primary judge to infer that the allotment of shares was made not to benefit LFE but to support the directors and keep them in office. That inference was not inevitable but much depended on when it was to be inferred that the directors of LFE learned of the acquisition by a large shareholder of about 7% of the issued stock and what was inferred to be the state of mind of the directors at that time. The making of those inferences depended upon a number of intermediate findings of fact, none of which was made by the primary judge but, no less importantly, none of which was rejected by the primary judge. Some of those intermediate findings of fact necessarily depended upon what assessment was made of the credibility of certain evidence given by particular witnesses and, for that matter, the credibility of the witnesses generally. They are not findings of fact which this Court can make based only on the transcript of evidence. The trial before me involved the calling of further witnesses, namely Mr Milne and Mr Waller. They were important witnesses, and the acceptance of their evidence by the Court was significant in a final determination dismissing the proceeding. I do not think, in view of the approach taken by Finkelstein J and the Full Court, that Bell needed to capitulate completely at the time of the offer, especially without a complete picture of the evidence to be called before me. I do not accept the submissions of the defendants that the result in this case was inevitable which Bell ignored. The case depended on an important part of the oral evidence of the individual directors, which was appropriately tested, but in the end the evidence was accepted by the Court. Further, I do not consider that the Calderbank offer (assuming it can be so characterised) was unreasonably rejected. Obviously I take into account its rejection by Bell, but I pay higher regard to the time when the offer was made, the time allowed to consider the offer, the extent of the compromise offered, and the fact that the prospects of success as at the date of the offer were difficult to assess, involving issues of credibility and at a time before all the sworn evidence to be relied upon by the defendants was filed and served. The question then arises as to what costs order is appropriate to make as to the first trial before Finkelstein J. The Full Court determined that the matter of costs of the first trial be considered after the re-trial determination. If the rehearing was based upon the same evidence as before Finkelstein J, then in view of the result, it would be appropriate to make an order for costs in relation to the first trial in favour of the defendants. However, as I have said, the defendants did call additional witnesses, which were important to the determination of this proceeding in favour of the defendants. These witnesses could have been called by the defendants at the first trial. The Full Court, in the passage referred to above in ordering a re-trial, referred to the necessary dependence on the assessment of the credibility of witnesses. I consider that no order should be made in favour of any party as to the costs of, and incidental to, the proceedings before Finkelstein J. Finally, as to the second and third defendants, I consider that their appearances on 31 July 2008 were appropriate and prudent, and that they should be entitled to their costs of that day. The second defendant further argued that Bell commenced and continued with the proceedings without articulating how it was entitled to any remedy against the second defendant, and despite comments made by Finkelstein J at the first hearing indicting he would grant no relief against it. It was contended that in the circumstances the second defendant should be awarded costs on an indemnity basis. The second defendant made no application for summary dismissal of the proceedings against Bell on this basis, and the matter proceeded by the second and third defendants being represented by the same Counsel and solicitors for the purposes of the trial. It seems to me that the second defendant was a proper party. It sought to be heard to oppose, on behalf of the beneficial owners, the cancellation of the relevant shares. I do not accept the arguments of the second defendant seeking indemnity costs because the joinder of the second defendant as a party was appropriate. Therefore, the appropriate costs orders which I propose to make are: The plaintiff pay the costs of the first defendant of the proceeding, other than costs of and incidental to the trial before Finkelstein J. The plaintiff pay the costs of the second and third defendants of the proceeding (including of and incidental to the hearing on 31 July 2008) other than costs of and incidental to the trial before Finkelstein J. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 8 October 2008 Counsel for the Plaintiff: Mr Mark A Robins Solicitor for the Plaintiff: Pointon Partners Counsel for the First Defendant: Mr David J O'Callaghan SC & Mr Robert G Craig Solicitor for the First Defendant: Johnson Winter Slattery Counsel for the Second and Third Defendants: Mr David T Forbes Solicitor for the Second and Third Defendants: Chang, Pistilli & Simmons Date of Hearing: 8 October 2008 Date of Judgment: 8 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1509.html


case_title: Scadding v Lorant (1851) 3 HLC 418


case_title: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR

case_text: Jenkins submitted that there was information which had been part of the Tribunal's reason for affirming the decision of the delegate, which had not been given to the appellant in writing, and on which the appellant had not been invited, in writing, to comment. Mr Jenkins supported his application for leave by reference to the judgment of Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51, 82-86, especially at [163]-[166]. His Honour, with whom Conti J agreed in relevant respects, considered the authorities with respect to the granting of leave to argue a new point, and set out a list of questions which would be appropriate for the Court to consider in such a setting (at [166]). Those questions, which were expressed as inclusive, were: "1. Do the new legal arguments have a reasonable prospect of success? 5. Is there an acceptable explanation of why they were not raised below? 6. How much dislocation to the Court and efficient use of judicial sitting time is really involved? 7. What is at stake in the case for the appellant? 8. Will the resolution of the issues raised have any importance beyond the case at hand? 9. Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 10. If so, can it be justly and practicably cured? 11. If not, where, in all the circumstances, do the interests of justice lie?" Mr Reilly, who appeared for the first respondent ("the respondent") in the appeal, was content to resist Mr Jenkins' application for leave broadly within the framework established by Madgwick J's questions. In the arguments of counsel before me on the point, the main matters agitated were whether the new points now sought to be relied on had reasonable prospects of success, whether there was an acceptable explanation for why they had not been raised before the Federal Magistrates Court, whether there was actual prejudice to the respondent and whether, even if the Tribunal had failed to comply with s 424A as now alleged, that omission made any difference to the disposition of the application before it. On the question whether there was an acceptable explanation as to why this point had not been raised before the Federal Magistrate, Mr Jenkins submitted that the appellant had represented himself at that stage, and that it was apparent that he had no understanding of the nature of an application for judicial review. He drew my attention to a passage in the Magistrate's reasons which stated: "The applicant's brief oral submissions were limited to seeking to explain the reasons why he fears persecution in India." Mr Reilly drew my attention to the fact that the appellant in NAJT , apparently, had given evidence that he could not afford a lawyer in the proceeding before the Magistrate. In the present case, he correctly pointed out, there was no such evidence. He submitted that I should not be persuaded that there was an acceptable explanation as to why the point was not raised below. Mr Jenkins, however, relied upon the following paragraph from the judgment of Madgwick J in NAJT (at [165]): "It is no accident that the 'practice' spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer , that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country's immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving." I do not understand Madgwick J to have been purporting to establish any new legal presumption in the passage set out above. Whether a particular applicant for a protection visa fits what his Honour appears to regard as a kind of stereotypical template will, in my respectful view, be a question of fact from case to case. In the present case, the appellant's application for judicial review in the Federal Magistrates Court was evidently prepared by someone with an understanding of the jurisdiction which arises under s 39B of the Judiciary Act . The application also contains references to relevant provisions of the Migration Act , and to two Full Court judgments. The application, in terms, seeks writs of certiorari, prohibition and mandamus, and alleges jurisdictional error in various respects. It is signed by the appellant. In his visa application, the appellant nominated English as the second, in point of preference, of three languages which he could speak and of two languages which he could speak, read and write. In the absence of evidence from the appellant on this point, I infer that, as at May 2005, the appellant had access to, and made use of, professional advice of sufficient competence to give rise to an awareness of the nature of jurisdictional error and of the remedies available under s 39B of the Judiciary Act , and that he was so aware, at least as much as any lay person would be with respect to those technical matters. Why the appellant did not make use of the advice to which, apparently, he had access when he appeared before the Federal Magistrate is not the subject of any evidence before me. He was represented by counsel in this court, and there is likewise no evidence as to why the arrangements which permitted that course to be adopted might not have been put in place at first instance. My consideration of the other seven items articulated by Madgwick J in NAJT , in relation to this second point, follows the same lines as the corresponding consideration of the same items in relation to the appellant's first point, and I would express the same conclusions in relation to each. However, because I have come to a different conclusion in relation to the first item (prospect of success), and because of the importance of that item in the overall consideration of the matter, I propose to refuse the appellant leave to rely upon this second point.


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR

case_text: shall consider first the question whether each of the new points sought to be raised on behalf of the appellant has a reasonable prospect of success. The first of these points arises from the following passage in the Tribunal's decision: "And while claiming in his protection visa application that his mother and sister were attacked with iron rods and wood and were admitted to hospital with severe injuries but on 12 August 2001 his mother died, at the hearing the Applicant did not make this claim but rather attributed the death of his mother to his claim that Ravi's family destroyed his house and this adversely affected his mother who then passed away." Mr Jenkins submitted that the state of the appellant's visa application, and specifically the absence therefrom of the explanation later advanced for the death of his mother, amounted to 'information' within the meaning of s 424A of the Act . He supported that submission by reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. He submitted that, in the circumstances, the Tribunal was obliged under s 424A to provide the appellant's visa application to him in writing, and to invite the appellant, in writing, to comment upon it. Mr Jenkins submitted that, for these purposes, it was not necessary for him to submit that s 424A(2) required the explanation ordained by s 424A(1)(b) also to be in writing: it was clear, he submitted that the visa application had not been given to the appellant in writing, and that he had not been invited, in writing, to comment upon it. Mr Reilly submitted that this new point was of doubtful merit. He submitted that, assuming that the visa application was 'information' for the purposes of s 424A(1) , when the Tribunal's decision was properly understood, it could not be said that the Tribunal considered that that information would be the reason, or a part of the reason, for affirming the decision under review. He submitted that, in the passage which I have set out above, the Tribunal was doing no more than noting its awareness of two different explanations which had been put forward by the appellant for his mother's death, purely as a matter of record, as a preliminary to moving forward and determining the case by reference to the explanation put forward at the hearing. Mr Reilly emphasised that the Tribunal, in relation to the original claim made by the appellant in his visa application, said that the appellant "did not make this claim", which was, in his submission, a clear statement that the Tribunal was not determining the matter by reference to that claim. Mr Jenkins' point was that it appeared that the Tribunal had taken into account the discrepancy between the two explanations offered by the appellant as to the death of his mother as a matter which had an adverse impact on the appellant's credibility. He pointed to a number of passages in the Tribunal's decision in which the Tribunal found that the appellant was not credible. It is clear that the credibility of the appellant was a significant element in the Tribunal's decision and, if the discrepancy between the two explanations offered by the appellant for the circumstances in which his mother died is to be regarded as an element in the Tribunal's general assessment of credibility, there would be an argument of apparent force that that discrepancy, and the view which the Tribunal took of it, constituted part of the reason for affirming the decision under review. Mr Reilly, however, took me to each of the passages in the decision in which the Tribunal had stated in terms that the matter under discussion impacted adversely on its assessment of the credibility of the appellant. There were several such passages. By contrast, as Mr Reilly submitted, in the passage dealing with the two explanations offered by the appellant for the death of his mother, the Tribunal says nothing in terms about the matter of credibility. In his submission, the Tribunal should be taken at its word, and there should be no ready assumption that that passage was relevant to its consideration of the matter of credibility or became part of its reason for affirming the decision under review. Mr Jenkins rejoined that the reason, or each part of the reason, which the Tribunal had for affirming the decision under review should be ascertained by a reading of the decision as a whole, rather than by the more narrow process of taking only the express words used in immediate conjunction with the passage in question. In this respect, he relied upon the following words of Weinberg J in SZEEU (at [164] [165]): "It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person's claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. The possibility that the similar claims information contributed to the Tribunal's rejection of the appellant's claim cannot realistically be excluded. The appellant's credibility was of critical importance to his claim. Any 'information' that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played 'a part' in the decision." Mr Jenkins submitted that the possibility that the Tribunal's thinking was influenced by the circumstance that the appellant's visa application (the original 'information') set up a different explanation for the death of his mother could not be excluded. Mr Reilly also derived support, he submitted, from SZEEU. He drew my attention to the following words of Allsop J (at [216]): "That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves ''information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A , without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ." Mr Reilly particularly stressed that the mere fact that the Tribunal mentioned something in its decision does not mean that it constituted the reason, or part of the reason, for affirming the decision under review. In deciding the question of 'a reasonable prospect' in relation to the first of Mr Jenkins' two new points, the first matter to consider under s 424A is whether the inclusion in the appellant's application for a protection visa of an explanation for the death of his mother which differed from that later stated by him at the hearing before the Tribunal was 'information' within the meaning of the section. Mr Reilly did not argue that it was not, and I believe that he was well-justified in adopting that course. What Mr Jenkins proposed was 'information' in the present case cannot, in my view, be relevantly distinguished from the kind of thing which the Full Court held to be 'information' in the case of Mr SZBMI in SZEEU . The next matter to consider is whether this information was considered by the Tribunal to be the reason, or part of the reason, for which it affirmed the decision under review. In the decided cases in this Court, the approach has been taken that the actual reason, or part reason, for which the Tribunal has affirmed a decision under review, as disclosed by an objective analysis of the Tribunal's printed decision in the case in question, must be treated as the reason which the Tribunal considered to be such for the purposes of s 424A. That approach is consistent with the submissions made in the present case, and I shall adopt it, both at the 'reasonable prospect' and at the level the ultimate merits of the matter, should leave to argue the new point be granted. By s 430 of the Act , the Tribunal was obliged to provide a statement of its reasons. Conformably with this requirement, the Tribunal's published decision contains a section headed 'Findings and Reasons'. It is in that section that one finds the passage which I have set out in par 6 above. That purely textual circumstance, however, is not conclusive. My task is 'to isolate what were the integral parts of the reasons for the Tribunal's decision': VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, [33], relied on by Allsop J (and apparently also by Weinberg J) in SZEEU : 150 FCR at 262 [216]. Nonetheless, the placement of the passage in the section of its decision where the Tribunal was ostensibly stating its reasons in compliance with s 430 of the Act does, in the context of the whole terms of the decision in the present matter, establish what I would call a prima facie case for concluding that the circumstance referred to in the passage was at least part of the Tribunal's reason for affirming the decision under review. It is evident that the appellant's credibility was a significant factor in the Tribunal's thinking, and that the passage in question does present an inconsistency between different stories advanced by the appellant at various times, albeit perhaps tenderly expressed. For the above reasons I consider that Mr Jenkins' first new point would, if permitted to be run in this appeal, have a reasonable prospect of success. Considering whether this point has a reasonable prospect of success, the first question is whether the matter which Mr Jenkins identified was 'information' within the terms of s 424A of the Act . In SZEEU , Moore J (at [18]-[20]) and, apparently, Allsop J (at [205]-[207]) accepted, and followed, the judgment of Finn and Stone JJ in VAF at [24]. In the light of these authorities, I should regard information as 'knowledge of relevant facts or circumstances communicated to or received by the Tribunal', but not including 'subjective appraisals, thought processes or determinations' or 'identified gaps, defects or lack of detail or specificity in evidence' or 'conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc'. In the passage to which I have referred at par 27 above, I do not believe that the Tribunal was referring to 'information' as so understood. Indeed, whether there were any other documents at all was a circumstance of which the Tribunal had no knowledge, other than the appellant's own assertion. Further, it was the appellant's continued refusal to make good on that assertion (thereby, the longer that went on, making it less likely that there was any 'information' at all) that gave the Tribunal cause to point out that his credibility might come into question. In this respect, the context in which the Tribunal pressed him, and warned him, should, in my view, be seen as the identification of gaps, defects, or lack of detail or specificity in the evidence in relation to the appellant's case before the Tribunal. Further, the very existence of these additional documents was something which lay only in the appellant's own assertion before the Tribunal. To the extent, therefore, that there was any 'information' involved here, it seems to me that it would inevitably be covered by the exception provided for in par (b) of subs (3) of s 424A. I also accept Mr Reilly's submission that the fact that the Tribunal warned the appellant that his continued failure to produce these documents might affect his credibility, and recorded the fact of that warning in its decision, does not mean that the matter constituted a part of the Tribunal's reason for affirming the decision under review. In the section of its decision headed 'Findings and Reasons', there is no further reference to this point and, to the extent that the Tribunal took the appellant's credibility into account and, as I have said, there were several such occasions this point appears not to have been relevant. Mr Reilly also submitted that there was a basis upon which the decision of the Tribunal might be justified, quite independent of any failure to follow s 424A. In this regard he referred to the observation by Allsop J in SZEEU at [231] [233]. In the hearing before the Tribunal, the appellant had identified his brother-in-law and his family as the ones who were likely to harm him if he returned to that part of India where he previously lived. The Tribunal said it was satisfied that if, for any reason, the appellant did not wish to return to that area, he would be able to move elsewhere and live in safety. This was, Mr Reilly submitted, a finding of fact upon which the Tribunal relied in the alternative as a basis for affirming the decision under review, and in no respect did it rely upon the Tribunal having recourse to information in relation to which there had been doubtful compliance with s 424A. However, whatever the merits of this point, being an alternative basis for the justification of the decision of the Tribunal as it is, I do not think it would be proper to take it into account at the point when I am considering whether the inherent merits of the new points being raised by Mr Jenkins are such that they would have a reasonable prospect of succeeding. I shall return to Mr Reilly's alternative basis at the appropriate stage of my full consideration of the first point. I turn then to a consideration of Mr Jenkins' first new point, namely, whether the Tribunal failed to comply with s 424A of the Act in relation to the passage for its decision set out at par 6 above. As I have said, Mr Reilly did not deny that the absence from the appellant's protection visa application of the explanation which he later gave for the death of his mother constituted 'information' within the terms of that section. The question for determination, therefore, is whether that information was the reason, or part of the reason, why the Tribunal affirmed the decision under review. In light of the authorities to which I have referred, particularly VAF , and the way that judgment was explained in SZEEU , I need to consider carefully the Tribunal's decision as a whole, I need to be conscious that the Tribunal's reasoning may not necessarily be linear, and I need to isolate the integral parts of the reasons of the Tribunal, paying due regard to the structure, layout and arrangement of the printed form of the decision, but ultimately identifying those parts at the truly deliberative, as distinct from the merely formal, level of the Tribunal's decision. The Tribunal commenced its written decision with a short paragraph setting out the factual background to the application before it. It referred next to the legislation under which it was operating, and to the definition of 'refugee' in the Refugees Convention. It set out what it identified as 'four key elements' in the definition. The next section of the decision was headed 'Claims and Evidence'. The Tribunal noted that it had before it the departmental file, which included the appellant's protection visa application and the record of decision of the delegate. It stated that it had also had regard to the material referred to in the delegate's decision, 'and other material available to it from a range of sources'. In this section of the Tribunal's decision, there are three internal sections, each identified by its own subheading. They are, in order, 'Claims in the protection visa application', 'Claims made in his application for review' and 'Claims made at the hearing'. I turn finally to the point raised by Mr Reilly to which I have referred at par 34 above. He submitted that there was a basis upon which the Tribunal's ultimate decision might be affirmed which was 'entirely independent of the failure to follow s 424A ' within the meaning of the judgment of Allsop J in SZEEU (150 FCR 214, [233]). The basis was that the Tribunal stated that it did not accept that the appellant would be subject to harm at the hands of Ravi and his family, no matter where he went to live in India. Indeed, it did not accept that even if Ravi, or members of his family or community, 'stumbled upon the applicant elsewhere in India' they would seek to harm him because he came from a minority community or for other Convention-related reasons. Referring to these findings, Mr Reilly submitted that, even if everything the appellant claimed about the fear which he held were accepted, and even if the nature of that fear could legitimately be linked to the Refugees Convention, if the appellant could have safely returned to some other part of India than the village in which his original home was situated, it could not be said that he was outside his country of nationality owing to that fear. The difficulty with this submission is that it is immediately confronted by the undoubted circumstance that the Tribunal's finding that the appellant could safely return to live in some other part of India could only be made if the appellant's own evidence in that regard were disbelieved, as it was. Indeed, in the lengthy paragraph in which the Tribunal dealt with this aspect, there were six occasions upon which the Tribunal said that it did not accept particular assertions, or evidence, on the part of the appellant. As I have held above, concerns as to the appellant's credibility lay at the core of the Tribunal's use of the inconsistency as between the two explanations proffered for the death of the appellant's mother. If the appellant's ability to return to India, and to live elsewhere than in his original village, was an alternative basis providing support for the Tribunal's decision, on no view could it be said that that basis was 'entirely independent' of the Tribunal's failure to follow s 424A of the Act . In circumstances, there will be a writ of certiorari quashing the Tribunal's decision of 24 March 2005, and a writ of mandamus commanding the Tribunal to hear and determine the appellant's application for a review of the decision of the delegate according to law. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 28 August 2006 Counsel for the Appellant: D Jenkins Counsel for the Respondent: T Reilly Solicitor for the Respondent: Phillips Fox Date of Hearing: 8 August 2006 Date of Judgment: 28 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1138.html


case_outcome: referred to

case_text: On 11 August 2005, on the motion of the first respondent, I ordered that pars 79 to 92 of the amended statement of claim (the claim) in this proceeding be struck out. My reasons for so ordering are contained in Tresize v National Australia Bank Ltd (2005) 220 ALR 706 (the earlier reasons). 2 After I made the orders referred to above and published the earlier reasons, Mr Watts, counsel for the applicants, applied for leave to replead the struck out pars. I granted leave and gave the applicants 45 days (that is, until 26 September 2005) to replead. 3 No further amended statement of claim was filed by 26 September 2005.


case_outcome: considered

case_text: The applicant justifies the raising of those issues for the first time on appeal on the basis of an asserted obligation of the Tribunal to inquire into and correctly consider questions of law arising on the matter before it, even in the face of concessions or admissions by the parties. It relies upon Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at [36] [39] for that proposition. 32 I do not consider that that decision supports its contention. That case relevantly concerned the question of whether the Tribunal had erred in failing to address the question under s 24(2)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) of whether the employee claiming compensation had undertaken all reasonable rehabilitative treatment for the impairment which was compensable. That consideration was relevant to whether the injury had resulted in permanent impairment, so as to entitle the employee concerned to a lump sum compensation payment. The Full Court (Drummond, Kiefel and Dowsett JJ) at [39] said: The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision. 33 In my judgment, the conduct of the matter before the Tribunal clearly indicates that, at least impliedly, the applicant did not seek to ventilate the issues arising under ss 10(7) or 63 of the Act, and restricted itself to the matters which the Tribunal identified. The Tribunal in those circumstances was quite entitled to proceed upon the basis that those matters were not contentious. It did not err in failing to address them. Consequently, the applicant is not now entitled to assert or cannot succeed in asserting that the Tribunal erred in law by failing to do so.


case_text: In addition, there are a few matters in respect of which it is not at all clear that, had the issues been raised by the applicant for consideration, the evidence would have remained as it was before the Tribunal. As discussed in more detail below, in the course of considering the several matters raised by the applicant, the matters now raised under (1), (2) and (5) above and possibly in (3) above may have led to there being more evidence before the Tribunal pertaining to them. For example, there may have been evidence from Dr Macris as to the significance, if any, of the additional medical history to him issuing the CMF to the respondent. There may have been evidence from Dr Bauze and Dr Brooks, and perhaps other evidence, as to the relationship between the diseased condition of the respondent's right knee and the aggravation of the diseased condition of his left knee. There may have been further evidence from the applicant about his state of mind at the time he was examined by Dr Macris concerning his capacity to do the proposed work on the Iron Chieftain. There may have been other relevant communications between the applicant and the respondent, or between the applicant and others such as medical practitioners. That is not of course intended to be exhaustive, or necessarily correct. It is really speculative as to how the hearing before the Tribunal would have proceeded if those issues had been properly signalled. Such considerations, however, do indicate that it would not be appropriate now to permit those matters to be raised: see. eg. Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8; University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 483. I shall nevertheless consider each of the matters sought to be raised by the applicant, even though in some instances the material available may not be the full material which would have been available had the applicant raised those issues before the Tribunal.


case_title: University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481


case_text: The applicant submitted that Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 supported its contention. In that case it was held that a contract of employment was void, so the injured person was not a worker within the meaning of s 12(1) of the WorkCover Queensland Act 1996 (Qld) and could not claim compensation against his employer. The definition of "worker" in s 12(1) was "an individual who works under a contract of service". It was found that the contract of employment was void, so that the injured person was not working under a contract of service and so was not a worker. The contract was found to be void because the claimant in that case was an unlawful non-citizen in Australia. Section 235 of the Migration Act 1958 (Cth) made it an offence for an unlawful non-citizen in Australia to perform work in Australia in the circumstances then applicable. Hence, the Court found that the claimant in that case could not enter into a contract of service: see especially at [12] [13]. A similar result was reached in WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469.


case_title: WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469


case_text: In Yango Pastoral Co Pty Limited v First Chicago Australia Limited [1978] HCA 42 ; (1978) 139 CLR 410 at 413, Gibbs ACJ said Where a statute imposes a penalty upon the making or performance of a contract, it is a question of construction whether the statute intends to prohibit the contract in this sense, that is, to render it void and unenforceable, or whether it intends only that the penalty for which it provides shall be inflicted if the contract is made or performed. At 426, Mason J said ... the question is whether the statute intends merely to penalize the person who contrives the prohibition or whether it intends to go further and prohibit contracts the making of which constitute [the breach]. In deciding this question the court will take into account the scope and purpose of the statute and the consequences of the suggested implication with a view to ascertaining whether it would conduce to, or frustrate, the object of the statute.


case_text: One of the principal purposes of the Navigation Act is to ensure the safety of ships and crew in Australian waters: see Visscher v Munro [2005] FCAFC 252 ; (2005) 147 FCR 538 at 542. The Marine Orders, as I have said, may also be interpreted in that context. However, I do not think that it follows that a contract of employment procured by a person with a CMF which has been issued despite (or because of) misleading or incomplete information provided to the doctor concerned necessarily would frustrate that objective. The Marine Orders, and in particular the CMF, aims to ensure that the crew on a ship are physically fit for the duties which they are to undertake so that they are not a danger to themselves or to others or to the ship. Dr Macris undertook his own examination of the respondent. As a result of that examination, he observed that the respondent had normal use of the arms and legs, normal gait, and did not have any apparent defect of the bones or joints, enjoyed movements of the joints in the normal range and without pain, and did not have any restriction or pain in the movement of the spine. 48 It would follow from the applicant's contention that a misleading or inaccurate or incomplete disclosure on a medical information form, even one irrelevant to the particular person's fitness to undertake work proposed to be undertaken on a ship, would lead to the invalidity of the CMF. For example, through oversight, an applicant for a CMF may simply not disclose a previous medical condition (such as an appendix removed), and be visited with the consequence that the CMF itself is invalid, and (as the applicant contends) that there is therefore no valid employment subsequently undertaken on the basis of the CMF which has been issued. I do not think such a construction is necessary to fulfil the object of the Marine Orders as part of the service of the purposes of the Navigation Act . Nor does that construction provide the certainty which the CMF is intended to provide, as a foundation for employment; it would be ... a provisional foundation vulnerable to identifying at some later time and perhaps at a much later time that all along the employment has been invalid. Such an outcome does not lie easily with the definitions in the marine Orders to which I have referred. 49 In my view, the second step is equally problematical for the applicant. In addition, there is nothing in the Seafarers Act itself to support the contention for the reasons just discussed. An employee is defined in s 4 to include a seafarer, and a seafarer is defined in s 3 to include a person employed in any capacity on a prescribed ship. As a matter of fact, the respondent was employed on the Iron Chieftain operated by the applicant. On the clear wording of s 26 of the Seafarers Act, if the respondent as an employee suffered an injury which resulted in his incapacity for work, compensation was payable to him for that injury under the Seafarers Act. It would be a wholly disproportionate consequence of the applicant's contention that he would be ineligible for compensation, even if the non-disclosure or incomplete disclosure of his medical condition was accidental or through oversight, or if it related to a condition which had no relevance to his capacity to perform his duties. It is difficult to accept that outcome would have been intended in legislation which has a significant social objective. The analysis of the relative significance of the information which has been either not disclosed or inaccurately reported regarding the past medical history, and its relationship to the injury, or of the reasons for its non-disclosure or inaccurate disclosure, is not one upon which, in my view, the entitlement to compensation under the Seafarers Act are predicated. That may be one of the situations which, subject to considering the applicant's further contentions, ss 26(3) or 10(7) of the Seafarers Act is designed to cover. The disproportionality to which I have referred is a relevant consideration to the construction for which the applicant contends: cf Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 316. Indeed, the point was made in Visscher 147 FCR at 542 that a medical certificate is not conclusive of the question of fitness to undertake particular duties. In that case, the Full Court at 542 adopted a submission of counsel that: ... the regulatory scheme that is established by the [Navigation] Act and the Orders is a licensing system of a familiar generic sort, of which the issuing of medical certificates is part. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees.


case_text: In my view, the second step is equally problematical for the applicant. In addition, there is nothing in the Seafarers Act itself to support the contention for the reasons just discussed. An employee is defined in s 4 to include a seafarer, and a seafarer is defined in s 3 to include a person employed in any capacity on a prescribed ship. As a matter of fact, the respondent was employed on the Iron Chieftain operated by the applicant. On the clear wording of s 26 of the Seafarers Act, if the respondent as an employee suffered an injury which resulted in his incapacity for work, compensation was payable to him for that injury under the Seafarers Act. It would be a wholly disproportionate consequence of the applicant's contention that he would be ineligible for compensation, even if the non-disclosure or incomplete disclosure of his medical condition was accidental or through oversight, or if it related to a condition which had no relevance to his capacity to perform his duties. It is difficult to accept that outcome would have been intended in legislation which has a significant social objective. The analysis of the relative significance of the information which has been either not disclosed or inaccurately reported regarding the past medical history, and its relationship to the injury, or of the reasons for its non-disclosure or inaccurate disclosure, is not one upon which, in my view, the entitlement to compensation under the Seafarers Act are predicated. That may be one of the situations which, subject to considering the applicant's further contentions, ss 26(3) or 10(7) of the Seafarers Act is designed to cover. The disproportionality to which I have referred is a relevant consideration to the construction for which the applicant contends: cf Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 316. Indeed, the point was made in Visscher 147 FCR at 542 that a medical certificate is not conclusive of the question of fitness to undertake particular duties. In that case, the Full Court at 542 adopted a submission of counsel that: ... the regulatory scheme that is established by the [Navigation] Act and the Orders is a licensing system of a familiar generic sort, of which the issuing of medical certificates is part. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees.


case_title: Lees v Comcare (1999) 56 ALD 84

case_text: In my judgment, ss 63(2)(a) and (b) are not intended to so restrict a claimant for compensation under the Seafarers Act. At the time a claim for compensation is made, it will often be the case that the precise nature of the injury or its aetiology (as ultimately found) will not be apparent either to the claimant or to his medical advisers: see e.g. Lees v Comcare (1999) 56 ALD 84 at 91. I consider that the nature of the injury as expressed in the claim was sufficient to put the applicant on notice as to the general nature of the injury or injuries which the respondent claimed to have suffered, so that the applicant could exercise its right to require a medical examination under s 66 of the Seafarers Act and to seek information about and from the respondent under s 67 of the Seafarers Act. It is not suggested in the submissions that the notification contained in the claim in any way impeded the applicant from undertaking those inquiries. In addition, as the course of hearing before the Tribunal illustrates, there was medical evidence adduced from both Dr Brook and Dr Bauze that the applicant had suffered an aggravation of his left knee disease unrelated to, or only marginally related to the medial meniscal condition in his left knee. The applicant permitted the proceeding to be conducted on that basis, including testing the medical evidence. It did not object to that evidence as being irrelevant to the claim, nor indeed could it sensibly have done so. 55 It is convenient to address these two contentions of the applicant together.


case_title: Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1995-1996) 187 CLR 310

case_text: As senior counsel for the applicant pointed out, the distinction between "injury" and "disease" has had a long history under workers compensation legislation, deriving originally from the fact that disease was not in early such legislation compensable, as the compensation entitlement was limited to "injury by accident": see e.g. the discussion in Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1996) 187 CLR 310 at 315 316; Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286.


case_title: Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286


case_text: It is clear that the Tribunal proceeded on the basis that the respondent had a pre-existing degenerative condition of his left knee which constituted a "disease", and that his injury arose because that pre-existing degenerative condition had been aggravated. The Tribunal addressed the issue of causation incorporated into the definition of "disease" by finding expressly that the aggravation had been materially contributed to by the particular employment activities undertaken by the respondent. It also found expressly that that aggravation had caused incapacity for work. Those findings, in my judgment, were reasonably open to the Tribunal. It accepted the respondent's evidence that, prior to his commencement of employment on the Iron Chieftain, he did not have ongoing symptoms of pain in his left knee, and that after performing his duties for some time, he developed quite significant symptoms in his left knee which he found to be disabling. Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: see Commonwealth v Beattie (1981) 53 FLR 191 at 197; Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626.


case_title: Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626


case_text: The applicant acknowledges that there is no false and wilful misrepresentation to the effect that he did not suffer, and had not previously suffered from, a degenerative condition in his left knee. That is the disease specifically which the Tribunal found had been aggravated by the respondent's employment with the applicant. The respondent's evidence was that he had previously had trouble with his left knee in 2002 when he had been learning to drive a truck with a heavy clutch, but that the problem had resolved following physiotherapy. It was not contended by the applicant that that circumstance was sufficient to have obliged the respondent by reason of s 10(7) to have disclosed specifically the previously degenerative condition of his left knee because it is now shown that he was aware of it. It is not a circumstance where the respondent failed to disclose a symptom of a disease in the left knee in circumstances where it ought to have been disclosed, as distinct from the suffering of a particular and temporary injury: cf Re Schofield and Comcare (1995) 38 ALD 124. 70 The medical evidence indicated that the respondent had an underlying degenerative condition of both his knees, but does not firmly indicate that those degenerative conditions were related, or that the incapacity caused by aggravation of the degenerative condition in the left knee was related to the degenerative condition in the right knee. Reference need only be made to the report of Dr Bauze of 12 September 2005 and of the respondent's general practitioner, Dr Chambers, in his report of 19 October 2005 discussed in the Tribunal's reasons. 71 The applicant submitted that "the relationship between degenerative conditions in knees is hardly controversial". That may or may not be correct as a matter of general medical science, but it does not address the particular findings of fact, or the particular evidence in this case. As its contentions indicate, there was some medical evidence considering the relationship between the degenerative conditions of the respondent's right knee and his left knee. The issue was not fully explored because, in the particular circumstances, it was not a matter upon which the Tribunal was required to make, or made, a finding favourable to the contention of the applicant. It merely found that the respondent had a degenerative condition of his left knee which had been aggravated by his employment with the applicant, leading to incapacity for work. That state of the evidence does not enable me to make any finding on the issue, as potentially authorised by s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth). 72 In those circumstances, in my judgment, the applicant has not shown in any event that the respondent made a wilful and false representation that he did not suffer, or had not previously suffered, from a degenerative condition in his left knee or had not suffered and did not suffer from the aggravation of that condition when he applied for his CMF or subsequently. In this particular case, the Tribunal did not make the finding upon which the applicant's contention is premised and in fact did not find that the degenerative conditions in the applicant's right and left knees were a single ailment, and should therefore be treated as a single disease. It made a different finding. The finding was open to it. 73 Consequently, the condition upon which s 10(7) would operate as a matter of fact to disentitle the applicant from compensation under the Seafarers Act has not been shown by the applicant to have been made out, and indeed its premise is inconsistent with the finding which the Tribunal in fact made.


case_text: The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons & Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. In Hills 4 ANZ Ins Cas 60-785, Green CJ said: For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it.


case_text: The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons & Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 79 A similar statutory scheme and factual circumstances to those now under consideration were considered by Judge Stanley in Ismakovich 49(2) SAIR 209. His Honour said at 236, after considering the equivalent of s 10(7) in the Workers Compensation Act 1971 (SA) that: The legislature has therein specifically provided that, if after being warned of the consequences of his action, the worker wilfully and falsely represents himself in writing as not having previously suffered from an injury which is a disease and he subsequently suffers such injury arising out of or in the course of his employment with that employer, compensation shall not be payable in respect of that injury. It seems to me implicit from the inclusion of that provision in that section that the legislature did not regard the wilful making by a worker of a false statement concerning any prior injury as amounting to "serious and wilful misconduct": within the meaning of section 9(5), for, if such a statement was already embraced by that term, there was no necessity to enact that portion of the provision of section 90(1). The same can be said for s 26(3) and s 10(7) of the Seafarers Act. However, I do not need to decide that question. 80 Even assuming that a wilful and false misrepresentation made in seeking employment could be brought within the serious and wilful misconduct exclusion of s 26(3), it is necessary for the applicant to have shown in the particular circumstances that there was in fact serious and wilful misconduct on the part of the respondent and that the misconduct caused the injury.


case_title: Comcare v Calipari [2001] FCA 1534


case_title: Richards v Faulls Pty Ltd [1971] WAR 129


case_title: Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785


case_title: A Solicitor v The Council of the Law Society of NSW [2004] HCA 1 ; (2004) 216 CLR 253

case_text: The other matter to observe is that the relevant time for the assessment of whether a person is the prescribed fit and proper person, is at the time of the relevant determination. This is made clear by the Act itself, for it is in considering the application that the Board needs to be satisfied that the applicant is the prescribed fit and proper person. I note the Act specifically uses the present tense. There is no express or implied legislative indication which provides for the assessment of the facts at any other particular date. I refer also to A Solicitor v Council of the Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 268. 13 In view of s 43(1) of the AAT Act, where the matter comes before the Tribunal, the Tribunal must be satisfied that the applicant is the prescribed fit and proper person at the time of the Tribunal's determination. In reaching its decision, the Tribunal should consider for itself, as though it was performing the function of the relevant decision-maker, whether the applicant has satisfied the Tribunal he or she was the prescribed fit and proper person. 14 In my view, reading the Tribunal's reasons as a whole and fairly, the Tribunal did not approach the matter by directing itself to the ultimate issue it needed to resolve, namely whether the applicant was the prescribed fit and proper person.


case_text: The approach to be taken on an appeal from a decision of the Tribunal was outlined by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287: The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts as found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365. The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145 (Fisher J); Commissioner of Taxation (Cth) v Cainero (1988) 88 ATC 4,427 (Foster J) . As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204: "...the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law." This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commissioner v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).


case_text: The decision was referred to and approved by the High Court of Australia in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 (' Wu Shan Liang '). In Tax Agents' Board v Bray (2004) 58 ATR 118 at [22], Hely J said that "Although careful consideration of the AAT's reasons is required, they must be read as a whole and considered fairly". 5 Adopting the approach of the Full Court and Hely J, the Tribunal's reasons in this appeal must be read sensibly, not seeking to perceive error, but concentrating on the task of the Court which is to interfere only when the identified error is one of law. It is permissible to analyse both the language and structure of the reasons of the Tribunal to determine whether a legally erroneous approach has been adopted, or whether the Tribunal has failed to properly appreciate the matter it was bound to consider (see Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473 at 479 (Barwick CJ) and Wu Shan Liang at 291 (Kirby J).


case_title: Re Beadle and Director General of Social Security (1984) 6 ALD 1

case_text: The Tribunal, after considering a number of matters, stated at [74] as follows: I am prepared to find that the applicant's health, the circumstances within his practice and the tension within his marriage, most of which were at their peak in the 1990's, occurred during the same periods of time that income tax returns for himself and family entities were outstanding. But on the evidence of the applicant's doctors, and himself at the hearing, all medication ceased at February 2003 and he was regarded then as enjoying improved health. I would have thought that there would have been greater diligence on his part to immediately set about preparing returns and having them lodged. It is noted from other evidence that at or about this time the applicant's accountancy practice stabilized and another employee accountant of considerable expertise was engaged. However the applicant's outstanding personal returns were not lodged until October 2003 and the returns for other entities were not lodged until April, May or June of the following year. That is, some eight months after the applicant's health had been restored and medication had ceased and after his practice had stabilized he first lodged his outstanding personal returns but the other returns were not lodged until a period of between 14 and 16 months later. Set against a background of two prior Magistrates' Court appearances and a suspension from practice it would have been incumbent on the applicant to show a degree of "good fame, integrity and character" if his prior omissions should in the special circumstances that he asserted, be disregarded . (emphasis added) The Tribunal then proceeded to state at [77]: Following the analysis of the concept of special circumstances in both Beadle, Groth and Chamberlain , I cannot find the applicant's circumstances of ill health and vulnerability to an unstable rural economy whilst in regional practice, marriage instability and workplace stress, no less in self employment, are alone, or in combination, to be "unusual, uncommon or exceptional" nor could I find in the application of the relevant legislation that to decide to refuse re-registration would cause an outcome which was "unfair, unintended, unjust" or "inappropriate" . Then finally at [78] and [79] the Tribunal decided: Mr Moore acknowledged that the applicant had not ever been convicted of "a serious taxation offence" or at all (refer s 251BC) and he was not automatically disqualified from registration. It was also submitted that if special circumstances are found not to exist, the only decision open to the Board, upon an application for re-registration is refusal to register. No other option exists, for example, to suspend, or admonish. I agree with those submissions. The Tribunal is required to consider, in the circumstance of the case under review, to determine whether if special circumstances do exist whether to disregard the "omission" of an applicant. If the decision to refuse re-registration is affirmed, it is open to an applicant to apply, without any period of prohibition, to the Board for registration. If that course is followed, the applicant, at the time of such an application will have the opportunity to demonstrate that he is fit and proper. Section 251K appears to apply only where an agent has been suspended or where his registration has been cancelled. In the present case it was the applicant's application for re-registration that was declined. The applicant's history, Court appearances, previous suspension, subsequent default and neglect and the magnitude of it and its duration dictates that it would be inappropriate to decide other than to affirm the decision under review. 23 Whilst the references in [79] could be said to relate to the enquiry going to the affirmation of the decision under review, they are not sufficient to show, in light of the previous reasoning of the Tribunal, that the Tribunal considered for itself the ultimate issue. 24 In my view, the Tribunal failed to appreciate the matter it was bound to consider and failed to address the ultimate issue for consideration, and in so doing made an error of law. 27 The term 'special circumstances' is not defined in the Act. It is used according to its ordinary meaning. As was said in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3: An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special. 28 Whether there were 'special circumstances' was a question of fact for the Tribunal to decide. The Tribunal's conclusion that there were no special circumstances was a conclusion on a question of fact. It was a conclusion open to it on the facts as found. 29 Another complaint made by the applicant was that the Tribunal incorrectly took into account the charges against the applicant before the Magistrates' Court in 1990 for failing to lodge his 1989 return. I do not accept the Tribunal fell into error in this regard. There was nothing in the Act that bound the Tribunal to not take account of the applicant's appearance in the Magistrates' Court in 1990. In any event, the applicant raised the matter in his witness statement, as follows: In 1990 I was prosecuted for an offence of failing to file a tax return for the year ended 30 June 1989 contrary to section 8C of the Taxation Administration Act 1953 . At the hearing of that charge before the Magistrates' Court at Ballarat I pleaded guilty and was fined $500.00. Enquiries of the Magistrates' Court confirmed no recording of any conviction in regard to that charge and the imposition of that fine. This is consistent with no conviction being entered in the Court record notwithstanding the plea of guilty and the imposition of a fine. I believe I disclosed a conviction in relation to this matter in error when completing applications for re-registration as a Tax Agent in 1992 and 1995 lodged with the Respondent on 12 February 1992 and 16 March 1995 respectively ( T42 ) ( T45 ). He was cross-examined about the matter without objection.


case_text: Adopting the approach of the Full Court and Hely J, the Tribunal's reasons in this appeal must be read sensibly, not seeking to perceive error, but concentrating on the task of the Court which is to interfere only when the identified error is one of law. It is permissible to analyse both the language and structure of the reasons of the Tribunal to determine whether a legally erroneous approach has been adopted, or whether the Tribunal has failed to properly appreciate the matter it was bound to consider (see Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473 at 479 (Barwick CJ) and Wu Shan Liang at 291 (Kirby J).


case_text: The decision was referred to and approved by the High Court of Australia in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 (' Wu Shan Liang '). In Tax Agents' Board v Bray (2004) 58 ATR 118 at [22], Hely J said that "Although careful consideration of the AAT's reasons is required, they must be read as a whole and considered fairly".


case_title: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

case_text: An appeal under s 44 of the AAT Act is concerned solely with a question of law. The existence of a question of law is not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J).


case_text: The threshold for a serious question to be tried is not particularly onerous. It is not a phrase that contemplates some kind of prediction of the probability of the outcome of the trial; it simply obliges the Court, as a first step in considering the grant of interlocutory relief, to be satisfied that there is a serious question to be tried in the principal proceeding and that the interim relief sought will go in aid of the vindication of some legal right asserted by the action. Thus, the serious question must relate to the grant of relief that is sought in the action: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 (' Lenah Game Meats' ). 28 The purpose of an injunction pending trial is sometimes described in terms of preserving the status quo. In Lenah Game Meats , Gleeson CJ said at 217 [12] that: 'The justice and convenience of imposing interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of that right before there has been an opportunity to have its existence finally established.' The applicant's claim for interim relief falls squarely within the scope of this principle, as she seeks to prevent the destruction of her right of internal review in both a legal and practical sense.


case_text: It is also relevant for the Court to consider whether damages are an adequate remedy. The summary dismissal without notice of an employee solicitor is a very grave matter. Necessarily, it will have a detrimental effect on her reputation, and may impose a stigma that adversely affects her future career prospects: see Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 (' Rankin' ) at 142 [247]-[252] per Gillard J. For this reason, the applicant contends that damages will not be an adequate remedy. 30 As both counsel have accepted and as some of my questions have made clear, the Court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. The Court will not ordinarily attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself that there is a serious question to be tried, and possibly making other preliminary findings that may bear upon the balance of convenience or the exercise of discretion. That is the course which I will adopt here. 31 Although a number of serious questions were relied on, the case was most strongly put by reference to the rights that were said to arise for the benefit of the applicant under both the Act and the Regulations. The applicant did not lead evidence going to the various facts and events that were said to give rise to the allegations of misconduct. Nonetheless, she submitted that, on the evidence as it stood at the moment, there was a serious question whether it was capable of constituting serious misconduct warranting the summary termination of the applicant's employment. In Rankin , Gillard J said at 142 [250]: 'The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.' 32 Having reviewed the evidence, I consider that there is a serious question whether the applicant's conduct was such as to provide a proper basis in law for her summary dismissal. However, in the absence of detailed responding evidence from the applicant, I would describe the serious question as a weak one. 33 The applicant's claim for interim relief based on her statutory rights is stronger. On the material and arguments before me, I consider that it is seriously arguable that the provisions of the Act and Regulations, particularly ss 8, 20(3), 33 and 64 and reg 6, are intended to give an employee a right of internal review before being excluded from employment.


case_text: I turn to consider the balance of convenience and discretionary factors. The issue that has occupied my attention most deeply is the well-known principle that an injunction will not ordinarily be granted to continue an employment relationship where one party has acted to terminate it. That is the ordinary, but not the invariable, rule: see Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 705-707 [51].


case_text: In the present case, the applicant contended that the employer has repudiated her employment contract, but she has not accepted that repudiation as bringing her employment contract to an end. Indeed, the applicant submited that her employment cannot be terminated without first affording her the statutory right of review to which she is entitled. The consequence is said to be that the purported repudiation has not automatically discharged the applicant's contract of employment: see Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25 ; (1946) 72 CLR 435 at 459, 469-472, 473 and 478. I am satisfied that the applicant's employment agreement has not necessarily been brought to an end, and that declarations of invalid termination could be made in due course if that were appropriate: see Automatic Fire Sprinklers v Watson , supra; Vine v National Dock Labour Board [1957] AC 488.