case_text: findings of fact, referred to above, on the s 52 issue were strong and decisive ones, aided by the primary judge's observations of the evidence given by Mr Nathan and by Mr McCredie. Grounds one, three and seven of the notice of appeal dealing with the s 52 issue challenge certain findings of fact made by the primary judge. Those findings include his Honour's categorisation of Mr Nathan as an unimpressive witness with a propensity not to tell the truth. Those are not matters on which this Court is any better placed than the court below to assess, nor is a review of the factual findings the Federal Magistrate made a proper exercise of the appellate jurisdiction of this Court; see Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 125-126 per Gleeson CJ, Gummow and Kirby JJ. The only substantive legal challenge to the s 52 aspect of the case as dealt with below is the allegation in ground two of the notice of appeal that Mr Nathan was denied natural justice by his Honour's alleged failure to give proper effect to s 52. That ground is related to ground eight which alleges that the primary judge failed to consider whether the alleged representation induced Mr Nathan into error. Those grounds are untenable. Section 52 precludes a corporation, in trade or commerce, from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. His Honour found that no such conduct occurred. That finding was open to him on the evidence before him. No appealable error has been identified on this aspect of the appeal. Ground five of the notice of appeal contains the allegation that the primary judge erred in his approach to the allegations of harassment and coercion made under s 60 of the Act . Section 60 of the Act provides: A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer . On the topic of the alleged breach of s 60 by the respondent, the primary judge said at [69]: It only remains now to deal with the issue of harassment asserted by Mr Nathan. The endeavours made by the Respondent to repossess the car and to otherwise pursue legal avenues against Mr Nathan were all, in my view, entirely reasonable and do not begin to approach what might be said to be harassment within the meaning of s 60 of the Act .


case_outcome: considered

case_title: O'Sullivan v Parkin [2007] FCAFC 98

case_text: the primary judge published his reasons for judgment on 10 September 2007 he did not make any orders. The current appeal was, to that extent, premature; see O'Sullivan v Parkin [2007] FCAFC 98. No orders were made until 18 September 2007 when his Honour dismissed the application and ordered costs against Mr Nathan on an indemnity basis. Mr Nathan has not sought to appeal from the judgment which contained the operative orders in respect of which he seeks relief. However, despite this, I have dealt with his appeal as if the judgment of 10 September 2007 contained an order dismissing his application. This is the most practical commonsense way of dealing with the controversy between the parties, especially as Mr Nathan does not have the benefit of legal representation. It is also necessary to deal with the remaining grounds of appeal enumerated in Mr Nathan's notice of appeal. Ground four contains a new allegation of bias against the primary judge and has not been substantiated by Mr Nathan. The allegation concerned a disclosure made by his Honour of a shareholding in the parent company of the respondent. Mr Nathan conceded that he did not raise any issue of bias at the time his Honour made the disclosure and therefore acquiesced in his Honour hearing the application. However, Mr Nathan referred in his oral submissions today to comments made in transcript by the Federal Magistrate at an interlocutory hearing. Those comments showed that the Federal Magistrate was keen to bring the proceeding to finality. That does not mean that he was biased in any way against Mr Nathan or that there exists any basis for a reasonable apprehension of bias against his Honour. Ground six is: "Did the learned Federal Magistrate err in law in assuming the terms of the Loan Protection insurance in the absence of the policy itself...". This ground is based on an incorrect premise that the primary judge assumed the terms of an agreement when it was proved that no such agreement existed. That ground also fails. The Court will order as follows: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 8 April 2008 The Appellant appeared in person. Counsel for the Respondent: Ms G Gray Solicitor for the Respondent: Bartier Perry Date of Hearing: 8 April 2008 Date of Judgment: 8 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/459.html


case_outcome: discussed

case_text: Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Gleeson CJ and McHugh J said (544-545 [83]-[85]): "As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" . However, given the nature of the prosecutor's claim, the Tribunal was entitled — indeed bound — to start its inquiry by considering her claim that she had been arrested by government officials for political reasons. ... Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed." (Citations omitted.)


case_outcome: referred to

case_text: the appellant submitted that the Tribunal's result was so unreasonable that the Tribunal must have proceeded under a misconception which amounted to jurisdictional error. The appellant referred to Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ.


case_outcome: cited

case_text: is an appeal from a decision of the Federal Magistrates Court: AZAAF v Minister for Immigration & Citizenship & Another [2008] FMCA 1533. On 14 November 2008, that Court made an order that the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal") be dismissed. The appellant is a national of Egypt. He arrived in Australia on a student visa on 10 May 2005, having left Cairo on 9 May 2005. On 23 June 2005, the appellant made an application for a Protection (Class XA) visa ("protection visa"). On 30 September 2005, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant's application for a protection visa. On 2 November 2005, the appellant applied to the Tribunal for a review of the delegate's decision. On 28 January 2006, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the appellant. The appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. By consent, the Federal Magistrates Court issued constitutional writs setting aside the Tribunal's decision and it remitted the matter to the Tribunal to be determined according to law. On 5 February 2008, the Tribunal (differently constituted) once again decided to affirm the decision of the delegate not to grant a protection visa to the appellant. The appellant again made an application to the Federal Magistrates Court seeking constitutional writs directed to the Tribunal and it is the decision of the Federal Magistrates Court on that application which is the subject of the appeal to this Court.


case_outcome: followed

case_text: appellant submits that the approach of the Tribunal member involved jurisdictional error and that the federal magistrate erred in law in failing to so conclude. He referred to the well-known passage in the joint reasons for judgment of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (" Dranichnikov ") (at 394 [26]): "At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason." The appellant submits that the Tribunal member failed to determine at the outset whether the following particular social groups, or one of them, existed for the purposes of the Convention: (a) a family of Coptic Christians with prominent members that proselytise Muslims in Egypt; and (b) Coptic Christian proselytisers of Muslims in Egypt. The Tribunal member rejected the suggestion that merely being a Coptic Christian could give rise to a well-founded fear of persecution and, as I understand it, it is not suggested that jurisdictional error arose in relation to that conclusion. The Tribunal member reached the same conclusion after he added to the appellant's status as a Coptic Christian the activities of his grandfather and uncle. The Tribunal member also rejected the appellant's account of his proselytising activities. As the Tribunal member said, he rejected "various constituent details of [the appellant's] account" and he was not satisfied that the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community. As far as the two particular social groups set out in [45] above and on the assumption in relation to the group identified in (a) that the appellant is one of the prominent proselytisers, the Tribunal member approached the matter by going straight to the second question, namely, whether the appellant was a proselytiser of Muslims. He found that he was not. In those circumstances, it was not necessary for the Tribunal member to formulate and consider a precise social group because an element of each formulation is that the appellant was a proselytiser of Muslims. The Tribunal member did make a reference to whether proselytisers of Muslims in local Christian communities could face persecution by reason of those activities, but he did not directly address the first question identified by Gummow and Callinan JJ in Dranichnikov . Nevertheless, for the reasons I have given, that did not lead to jurisdictional error. It is not clear to me whether the appellant is submitting that the Tribunal member failed to address, as an alternative to his principal claim, a claim that he feared persecution not as a result of his own activities, but as a result of his membership of his family and the activities of his grandfather and uncle. If he is making that submission, I would reject it because I think the Tribunal did address that possibility. The appellant's own claim that his problems did not begin until 2003-2004 meant either that his family was not a relevant particular social group or, in the circumstances, membership of it did not give rise to a well-founded fear of persecution. The second ground of appeal is linked to the first. It is that the federal magistrate erred in not concluding that the Tribunal member erred by addressing the wrong question in that the Tribunal member concluded that the appellant had not been drawn into the conflict involving his uncle and that he was not significantly affected by his grandfather's situation or his uncle's situation. I do not think the Tribunal member erred in approaching the matter in that way. He was saying no more than that the appellant's membership of his family, which included his grandfather and uncle, did not give rise to a well-founded fear of persecution. That was a finding open to the Tribunal member on the evidence.


case_text: "what if I am wrong test" was discussed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 576. "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong." In Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Gleeson CJ and McHugh J said (544-545 [83]-[85]): "As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" . However, given the nature of the prosecutor's claim, the Tribunal was entitled — indeed bound — to start its inquiry by considering her claim that she had been arrested by government officials for political reasons. ... Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed." (Citations omitted.)


case_text: refer also to N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at 34-35 [43]-[49]. In my opinion, there are two answers to the appellant's submission. The first is that the Tribunal member did not, it seems to me, have any real doubt about his conclusions. He found that, even making allowance for the appellant's medical condition, he was not a witness of truth. He made the point on a number of occasions in the course of his reasons that he did not believe the appellant's account of events and that he found particular claims made by the appellant to be inconsistent and implausible. The second answer to the appellant's submission is that the Tribunal member did address the ultimate questions of whether the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community and whether he faced a real chance of persecution in Egypt (see [19] and [22]). The second submission in relation to grounds three and four is that it is said that the Tribunal member's reasoning in the following passage is illogical: "The Tribunal accepts as genuine the death certificate pertaining to the Applicant's father. The Tribunal accepts that the Applicant's father died at home at 49 years from a 'brain haemorrhage' or stroke. The Tribunal is prepared to accept in principle that a person could die hours after a serious beating from internal bleeding, for example, in the head or in the torso. On the evidence before it, the Tribunal does not accept the claim that the Applicant's father died as a result of police brutality or that he was detained and mistreated by the police shortly before dying. On the evidence before the Tribunal, the claimed circumstances of the Applicant's father's death are concocted. This is to a significant extent because the Tribunal does not accept as factual the key events that led to the Applicant going into internal exile, or the circumstances in which he returned to the farm, or the facts about how he obtained his passport. The Tribunal does not accept the Applicant's claim that the authorities adopted a stance or pattern of detaining and beating his father to get to or at him, the Applicant, or to extract information about him. The Tribunal also finds that in view of the Applicant's overall credibility problems up to this point, it does not accept that the authorities, supposedly acting in the interests of violently angered fundamentalists, adopted a stance or pattern of detaining and beating the Applicant's father to punish him for his own actions or to deter him from similar actions in the future."


case_text: connection with this submission, reference was made to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 (" NADH ") and, in particular, to Allsop J (with whom Moore and Tamberlin JJ agreed) at 286-287 [129]-[136]. I do not think that there is anything illogical in the Tribunal member's reasoning. In essence, the conclusion is reached that the story is concocted by the appellant because key elements of his account cannot be accepted. The fifth ground of appeal is not pressed by the appellant. Secondly, the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal was guilty of apprehended bias. The appellant referred to NADH at 266-285 [10]-[125], a case in which the Full Court of this Court held that the Tribunal was guilty of apprehended bias. A singular feature of that case was that a number of letters and documents were in effect put to one side by the Tribunal member as not establishing any fact without any real reasons being given for adopting that course. For example, a number of letters were dismissed by the Tribunal member as being of no weight on the grounds that they were vague or did not establish certain matters without any real reasons being given for those conclusions.


case_text: the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal did not conduct the review required by the Act. The appellant referred to NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 ; (2003) 77 ALD 424 , a case in which Hill J reached the conclusion that the Tribunal had not conducted the review required by the Act. Without being exhaustive, features of that case which led to that conclusion were a refusal by the Tribunal member to allow the applicant to call a witness, the Tribunal member acting in a rude manner and the Tribunal member cutting the applicant off in the course of his answers and refusing to hear explanations from the applicant.


case_title: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100


case_text: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ), the High Court held (McHugh J dissenting) that procedural fairness required that if a relevant decision maker proposed to make a decision inconsistent with Article 3 of the Convention, procedural fairness required the decision maker to inform the person affected and provide to that person the opportunity of presenting a case against the taking of such a course. The reason was that ratification by Australia of an international convention engendered a "legitimate expectation" that administrative decision makers would act in conformity with that convention. Mr Karp has drawn attention to the fact that the expression has perhaps fallen into disuse since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , see especially at [61]-[64] and [81]-[83] per McHugh and Gummow JJ, [121] per Hayne J, [148] per Callinan J. In view of the way in which the present case was argued, I need say no more of this. Quite apart from Teoh , the Direction provided a basis for a legitimate expectation that the Minister would treat the best interests of the child as a primary consideration when deciding whether to cancel Mr Rinka's visa. This expectation was created by the fact that the letter of 20 February 2006 notifying Mr Rinka of the Minister's intention to consider cancelling his visa stated that the decision-maker would have regard to the Direction in coming to a decision. I will first address the question whether the best interests of Mr Rinka's children were in fact treated as a primary consideration by the Minister. Briefing Paper The briefing paper to the Minister, headed "Issues for Consideration of Possible Cancellation of a Visa under s 501(2) of the Migration Act 1958 ", was structured by reference to the Direction. Since it was plain that Mr Rinka failed to pass the character test, there was little discussion of that matter. The Minister's "Discretion" was considered under the headings "Primary Considerations", "Other Considerations" and "Other International Obligations". Three Primary Considerations were discussed: "Protection of the Australian Community", "The Expectations of the Australian Community" and "The Best Interests of the Child".


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1

case_text: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ), the High Court held (McHugh J dissenting) that procedural fairness required that if a relevant decision maker proposed to make a decision inconsistent with Article 3 of the Convention, procedural fairness required the decision maker to inform the person affected and provide to that person the opportunity of presenting a case against the taking of such a course. The reason was that ratification by Australia of an international convention engendered a "legitimate expectation" that administrative decision makers would act in conformity with that convention. Mr Karp has drawn attention to the fact that the expression has perhaps fallen into disuse since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , see especially at [61]-[64] and [81]-[83] per McHugh and Gummow JJ, [121] per Hayne J, [148] per Callinan J. In view of the way in which the present case was argued, I need say no more of this.


case_outcome: distinguished

case_text: Rinka submits that the Minister failed to identify what the best interests of the children indicated she should decide with respect to the cancellation of Mr Rinka's visa, and that the Minister therefore did not treat the best interests of the children as a primary consideration in reaching her decision. In making these submission, Mr Rinka relies on Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 ( Wan ) (see, particularly, [26]-[27], [31]). Mr Rinka submits that the concept of the best interests of the children involved consideration of their relationship with Mr Rinka. He submits that the Minister had before her the older son's letter saying that he misses his father and speaking of his exploits at soccer, yet she did not refer to this material in her statement of reasons. Counsel for Mr Rinka accepts that this alone does not show jurisdictional error, but submits that, in combination with the "speculative" comments made by the Minister in para 81 of her statement of reasons, it does suggest that she did not give proper, genuine and realistic consideration to the material that was before her. If she did not, it would follow that the best interests of the children also could not have been given proper, genuine and realistic consideration. Consideration Wan , on which Mr Rinka relied, concerned an appeal to the Court from a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Minister to refuse to grant a permanent residence (general-spouse) visa on character grounds. It was also a "best interests of the child" case. There were provisions of the Administrative Appeals Tribunal Act 1975 (Cth) governing the procedure of the AAT that have no relevance in the circumstances of the present case. Nonetheless, the Full Court's holding in Wan that in order to treat the best interests of the child as a primary consideration, a decision maker must identify what those interests indicate the decision should be, is applicable. The Full Court held that the AAT did not do so. An alternative ground for the Full Court's decision was that the conclusion was inescapable that the AAT had not treated the best interests of the child as "a primary consideration". As indicated earlier, although the Minister's statement of reasons does not say in terms that "the best interests" of Mr Rinka's children dictated that his visa not be cancelled, that is the effect of para 83. Moreover, the Minister did say that she was treating the best interests of Mr Rinka's children as a primary consideration, and it is not shown that her statement to that effect should not be accepted. In the result, in my opinion the Minister's statement of reasons shows that the Minister treated the best interests of Mr Rinka's two children as a primary consideration, as she said she did in the first sentence of para 80.


case_text: On 26 February 2007 I made orders in the following terms: 1. The applicant is to file and serve a substituted statement of claim on or before 26 March 2007. 2. The respondents are at liberty to provide to the applicant on or before 12 March 2007 information by way of letter or disclosure of documents or by an affidavit sworn by their solicitor upon instructions, setting out: (i) their respective functions as members of the Hog's Breath group of companies in Australia; (ii) their respective roles in the use of the Hog's Breath Works as defined in the statement of claim and/or the registered trade marks referred to in the statement of claim; (iii) the ways in which the Hog's Breath Works and/or the registered trade marks have been used by them in respect of the classes of goods and services to which they relate. I also made orders relating to the costs of the respondents' strike out motion and adjourned the directions hearing to 11 April 2007: Lamb v Hog's Breath Company Pty Ltd (No 2) [2007] FCA 201. 4 In argument prior to the delivery of that judgment counsel for Mr Lamb said that he did not have a clear picture of the respective functions of the respondent companies within the Hog's Breath group. In the original statement of claim it was said that HB Investments Pty Limited (HB Investments) held registered trade marks and that the principal case against it was that it had authorised infringement of Mr Lamb's copyright in the Wave Hog Work by licensing to the other corporate respondents the right to use those trade marks. What trade marks were licensed to which respondents did not appear. A significant obstacle in the way of a more precise pleading on Mr Lamb's part was the absence of information about which of the companies took that role within the Hog's Breath group and which was responsible for the production and marketing of the various articles said to bear infringing productions of the work or of a substantial part thereof. As noted in that judgment want of knowledge does not of itself excuse a pleading which does not identify which cause of action is raised against which respondent or which fails to identify the material facts constituting each such cause of action. Although O 15A of the Federal Court Rules may well have been available to enable Mr Lamb to identify the persons against which he might have a cause of action, or the causes of action he might have, it was not availed of. 5 A substituted statement of claim was filed on 10 April 2007. It was a much more substantial document than its predecessor and was settled by senior counsel. It identifies Hog's Breath Company Pty Ltd (Hog's Breath Company) as the master franchisor, since 24 October 2006, of a franchised chain of restaurants around the world known as "Hog's Breath Cafes". A list of Australian franchisees is scheduled to the statement of claim. Hog's Breath Cafe (Australia) Pty Ltd (Hog's Breath Cafe (Australia)), the second respondent, is identified as the master franchisee of the Australian franchisees since at least 24 October 2006. HB Investments is said to be the registered owner of Australian registered trade mark numbers 701388 and 1013512, both of which involve the image described, inter alia, as "Hog, cartoon wears sunglasses & crossed bandages, adhesive on body". Hog's Breath Clothing Co Pty Ltd (Hog's Breath Clothing) is said to be the owner and operator of a business selling merchandise under the name "Hog's Breath Clothing" through a website and through the Australian franchisees. The fifth respondent, Mr Algie, is said to be a director, secretary and majority shareholder of Hog's Breath Company and to have been a director of Hog's Breath Cafe (Australia) between September 1995 and April 2000. He is also said to be a director, secretary and majority shareholder of HB Investments and a director, secretary and majority shareholder of Hog's Breath Clothing. 6 Paragraphs 7 to 12 assert subsistence and ownership of copyright in the Wave Hog Work by Mr Lamb. Paragraphs 13 and 14 plead and particularise Mr Algie's access and exposure to the Wave Hog Work and his knowledge that the respondents are not, and have not, been the owners of copyright in that work. It is alleged that the work depicted in Schedule B to the application is a reproduction of the whole or a substantial part of the Wave Hog Work ([15]). Paragraphs 16 to 21 deal with the conduct of the Australian franchisees asserting, inter alia, that they have displayed the infringing work on restaurant signage and on banners and have distributed or offered for sale or exhibited to the public various items depicting that work. These items are set out in a schedule to the substituted statement of claim. 7 The substituted statement of claim then sets out the bases of Mr Lamb's copyright claim against Hog's Breath Company ([22]-[38]), Hog's Breath Cafe (Australia) ([39]-[54] inclusive), HB Investments ([55]-[66] inclusive), Hog's Breath Clothing ([67]-[83] inclusive) and Mr Algie ([84]-[103] inclusive). There are allegations of a common design entered into by the various respondents ([104]) and pleading of facts relied upon to support a claim for additional damages under s 115(4) of the Copyright Act 1968 (Cth) and conversion damages under s 116(1) of that Act ([105]-[106]). Moral rights claims are also raised against the respondents ([107]-[175]). The substituted statement of claim concludes with allegations that the registration by HB Investments of the Australian registered trade marks was and remains unlawful.


case_title: Kelly v Fitzpatrick [2007] FCA 1080

case_text: I have concluded that it is appropriate to impose the proposed penalties. In doing so I have had regard to the following matters: • Although there were multiple contraventions by the respondents of the relevant sections of the Act , those contraventions formed part of a single course of conduct which was intended to persuade each of the nine employees to become a party to an AWA. • The monetary penalties imposed distinguish between the contraventions of s 401(1) of the Act on the one hand and the contraventions of ss 337(8) and 337 (9) on the other having regard to the higher maximum penalty applicable for contraventions of s 401(1) and the fact that the contravention of s 401(1) of the Act , was, in each case, the major contributing factor to the employees becoming parties to AWAs. • The consequences for each of the employees were serious. The longer serving members of the group suffered the most. As a group they were deprived of an amount in the order of $149,000 which represented the difference between what would have been payable had their redundancy entitlements been calculated under the certified agreement and the amount to which they were collectively entitled under the AWAs. • There is a strong need for general deterrence of the type of conduct engaged in by the respondents in the present case. • The conduct complained of undermines the legislative objective that AWAs should be the product of free bargaining between the parties. • The totality principle which I explained in greater detail in Kelly v Fitzpatrick [2007] FCA 1080 at [30] and the appropriateness of fixing a total penalty for a course of conduct: as to which see McIlwain v Lamsay Food Packaging Pty Ltd (No 4) (2006) 158 IR 181 at 216-7.


case_title: McIlwain v Lamsay Food Packaging Pty Ltd (2006) 158 IR 181


case_text: The Court is not bound to accept and impose these proposed penalties but will do so if persuaded that, in all the circumstances, they fall within the permissible range: cf NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1996) 71 FCR 285 at 290-1. In Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 565 Jessup J expressed the view, with which I respectfully agree, that the phrase "permissible range" in this context "refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive."


case_text: Bourke v State Bank of New South Wales (1988) 22 FCR 378 (at 394), Wilcox J held that the expression " the interests of justice " in s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ought to be read widely. His Honour referred to the need to consider all aspects of a matter including both substantive and adjectival matters and concluded by saying: It is not in "the interests of justice" to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation. These ideas, although not directly applicable, are nevertheless apt to be applied in the present case. In summary, it seems to me, there is in reality no connection at all with New South Wales. There is nothing else which can fairly be weighed in the balance in favour of keeping the proceedings in this Registry of this Court. There are, on the other side of things, substantial reasons based upon the cost and inconvenience to individual litigants which would justify a transfer to the Queensland District Registry of this Court and I propose to make an order accordingly. It seems to me that the applicant was entitled to resist the application in the form in which it was pressed because the primary order sought was an order that the proceedings be transferred to the Supreme Court of Queensland. The third respondent has not persuaded me that such an order should be made. On the other hand, the applicant did resist the making of any orders. In those circumstances each of the relevant parties has experienced some success and some failure. It seems to me that the appropriate order as to the costs of the motion for transfer brought by the third respondent is that those costs be costs in the proceedings.


case_outcome: applied

case_text: National Mutual Holdings Pty Limited v Sentry Corporation (1988) 19 FCR 155 , a Full Court of this Court held that the power conferred on the Court or a judge by s 48 was unfettered and should be exercised flexibly having regard to the circumstances of the particular case. The Court went on to say (19 FCR at 162): Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely. Other sources of the power to transfer a proceeding to another Registry of this Court are O 10 r 1(2)(f) and O 30 r 6 of the Federal Court Rules . The relevant guiding principles are the same under the Rules as under s 48 of the Act.


case_text: seems to me that the approach of the High Court in Miah, and indeed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550, which was applied in Miah , makes this all too plain a case of a breach of the rules of procedural fairness. The material was crucial to the decision. Whilst it may not have been new in concept it did relate to a later period and amounted to the reason why the applications failed.


case_text: fundamental objection, however, was that the point had no merit and would not succeed. In my view, the point does have merit, and in the very unusual circumstances of this case, it seems to me that an amendment should be permitted along the lines read onto the record by the solicitor for the appellants. The argument has merit based upon the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, where in very similar circumstances, (that is, a change of position in the country of origin prior to the decision due to reliance by the delegate on new material and the appellant being given no opportunity to respond), the High Court had no difficulty in finding that there had been a breach of the rules of natural justice and procedural fairness. The main issue in that case was that by then there had been amendments to the Act which enabled an argument to be put that there was then a code for dealing with the situation and that the ordinary common law natural justice rules did not apply. That argument is not available in this case, because the amendments had not been made, so the common law rules clearly do apply. The answer which is made on behalf of the Minister is that in this case, all the issues raised in the later material to which reference was made by the Tribunal member were traversed in the earlier material and that the late material really amounted to pieces of evidence which were not required to be put forward for particular comment. There is also, I might say, always the argument that it is the visa applicant's case, and if circumstances change in the country of origin, then it is up to the applicant to keep on top of things and keep the Tribunal informed. It seems to me that the approach of the High Court in Miah, and indeed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550, which was applied in Miah , makes this all too plain a case of a breach of the rules of procedural fairness. The material was crucial to the decision. Whilst it may not have been new in concept it did relate to a later period and amounted to the reason why the applications failed.


case_text: The question for the court was succinctly stated by Bowen, CJ in Eq in Re Magna Alloys and Research Pty Ltd (1975) 1 ACLR 203 at 205. His Honour noted that an applicant who came seeking relief bore an onus of establishing that the general policy of the legislature laid down in an analogue of section 206B ought be made the subject of an exception in his or case. His Honour continued: 'The court in exercising its discretion will have regard to the nature of the offence of which the applicant has been convicted, the nature of his involvement and the general character of the applicant including his conduct in the intervening period since he was removed from the board and from management. Where, as here, the applicant seeks leave to become a director and to take part in the management of particular companies the court will consider the structure of those companies, the nature of their businesses and the interests of their shareholders, creditors and employees. One matter to be considered will be the assessment of any risks to those persons or to the public which may appear to be involved in the applicants assuming positions on the board or in management' 10 In this case, the two offences I have described appeared to me, as they did to both the applicant and the Chief Judge of the District Court, to differ in character. The offence involving the false statement about the company not being a party to any legal proceedings is one which, in its true context, does not appear to me to involve any serious issue of lack of probity or anything other than a clear and wrong, but, in all the circumstances, unfortunate slip by the applicant in filling in and signing a form on advice. 11 The other conviction, which was the one that attracted the more serious penalty, is of a different order and involved an attempt, on one view, to avoid paying a substantial sum of money due to the State by making a false statement that there were no outstanding liabilities. I have considered the evidence on this matter and the applicant's attitude that he has now clearly set out to resolve this issue and to pay what is due to the State Authorities subject to, what seems to me to be not unreasonable, trying to find from the State Authorities any offsetting amounts that might be due back to Aluform. The evidence before me shows that Mr Lahood has made some considerable efforts to ascertain from the relevant New South Wales Authorities the amount of registration moneys which ought be refunded but has not even received the courtesy of a reply to any of his attempts to find this information out. Hopefully that situation will remedy itself in the period allowed in the proposed orders. 12 I have formed the view that the applicant is genuinely contrite and remorseful for the errors which he committed and recognises that what he did was wrong. It seems to me to be a lapse in an otherwise clean and good record. The applicant has managed these companies with his family for over 20 years. The transport industry is one which is notoriously difficult in economic terms and yet the evidence shows that the companies in the Transtar Group have over 70 employees and also engage something in the order of about 10 contractors. They appear to be otherwise well managed. There are no matters which the Australian Securities and Investments Commission ('the Commission'), which intervened in the proceedings, was able to bring to attention as to the business practices of the applicant or the Transtar Group which might give any rise to concerns that there was a risk to the public or to those in the companies from the applicant being allowed to be a director, once again, as he seeks. 13 At the conclusion of the oral evidence I inquired of counsel for the Commission whether it was the Commission's position that the disqualification should remain and that there be no leave granted. Counsel, on instructions, said that that was not the Commission's position and that the Commission considered that appropriate conditions could be imposed.


case_text: The discussion by the High Court in Thompson v Australian Capital Television [1996] HCA 38 ; (1996) 186 CLR 574 of subordinate dissemination is of particular interest (see Brennan CJ, Dawson and Toohey JJ at 585 590, Gaudron J at 591 596 and Gummow J at 617 620). That case concerned the liability of a television station that took to air a direct "feed" of a live current affairs show from another television station. The argument that it was a mere conduit failed. Emphasis was placed upon the choice made by that station to take a live current affairs program likely, to be controversial, directly to air without any editing or scrutiny. For an earlier, brave but unsuccessful, attempt to argue that a television station which puts a debate to air is not responsible for statements by participants see Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510.


case_text: The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )


case_text: It was held in Bunt v Tilley [2006] 3 All ER 336; [2006] EWHC 407 (QB) that an Internet service provider that performed no more than a passive role in facilitating postings on the Internet and did not "host" the relevant website was not deemed to be a publisher at common law any more than a telephone company would be liable for defamation over the telephone. Godfrey [2001] QB 201 was distinguished.


case_title: Byrne v Deane [1937] 1 KB 818

case_text: In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user." 32 The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )


case_text: Universal Music Australia v Cooper Pty Ltd [2005] FCA 972 ; (2005) 150 FCR 1 dealt with infringement of copyright. The principal claims were based on infringement of copyright by a website that facilitated the free downloading of certain sound recordings. The first respondent was the registered owner and operator of the website. It contained hyperlinks to thousands of sound recordings which were located on remote websites and downloaded directly from those websites to the computer of the Internet user. The music file was not sent to, downloaded on, transmitted through or saved to the first respondent's website. The second to fifth respondents hosted the website and were responsible for maintaining the connection to the Internet. They were unaware of the contents of the website and took no steps to inform themselves of that content. Tamberlin J held that the first respondent infringed copyright by authorising the infringing acts of Internet users who accessed the website and the owners or operators of the remote website from which the infringing recordings were downloaded. He permitted and approved the infringements and had sufficient control over his website to prevent the infringements (150 FCR 1 at [77] [102]). The second to fifth respondents infringed the copyright by authorising the infringing acts (150 FCR 1 at [103] [132]). They had an active role in relation to the website, were aware of the content of the website and had the power to prevent the infringing acts. Those findings were substantially upheld on appeal, although an employee of the Internet service provider was let out ( Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 particularly per Branson J at [28] [52], [61] [65] and Kenny J at [136] [165]).


case_text: The test or standard in s 18C(1)(a) of the Act is objective: see Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at 268-269; Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615 ; Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at [12] . It is for the Court to determine whether the act, in all the circumstances in which it was done, would be reasonably likely to offend, insult, humiliate or intimidate another person or a group of people of a particular racial, national or ethnic group: see Hagan [2000] FCA 1615 at [15] . As Hely J remarked in Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [99] : "it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question ... [but] evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible, on, but not determinative of, the issue of contravention."


case_text: Material posted onto an Internet website may be seen to be published by the author when uploaded or posted onto a web server by or on behalf of the author and also by a person when downloaded onto the computer accessed by a person who has used a web browser to pull the material from the web server in comprehensible form. For the purposes of the law of defamation, publication is regarded as a bilateral, complete at the time of downloading Dow Jones & Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575 at [25] [27], [40] and [44]). Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [11]): " 'Publishing' and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher's) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation."


case_title: Frawley v State of New South Wales [2006] NSWSC 248


case_text: The applicant submits that the decision in Godfrey v Demon Internet Ltd [2001] QB 201, [1999] 4 All ER 342; [2000] 3 WLR 1020 should be applied. In that case, the defendants carried on business as an Internet Service Provider and received and stored on their news server an article, defamatory of the plaintiff, which had been posted by an unknown person using another service provider. The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server. They failed to do so and it remained available for some 10 days until its automatic expiry. It was held that the defendants were liable at common law as the publisher of the posting they were not merely the passive owner of an electronic device through which postings were transmitted but actively chose to receive and store the news group exchanges containing the posting which could be accessed by their subscribers and could have chosen to obliterate the posting complained of, as they later did. The critical portion of the judgment was as follows ([2001] QB at 208 209): "In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer. The situation is analogous to that of the bookseller who sells a book defamatory of the plaintiff: see Weldon v 'The Times' Book Co. Ltd (1911) 28 TLR 143 (the case about the books on Gounod); to that of the circulating library who provided books to subscribers: see Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 (the case about the book on Stanley's search for Emin Pasha in Africa: see in particular the judgment of Romer LJ pages 178 181); and to that of distributors: see Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521 (the case about the article in Detective Story Magazine headed 'Swindlers and Scoundrels. Horatio Bottomley, Editor and Embezzler') and Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211 (the case about newspaper posters announcing 'More grave Sun Life of Canada disclosures'). I do not accept Mr Barca's argument that the defendants were merely owners of an electronic device through which postings were transmitted. The defendants chose to store soc.culture.thai postings within their computers. Such postings could be accessed on that newsgroup. The defendants could obliterate and indeed did so about a fortnight after receipt." 29 In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user." 31 It was held in Bunt v Tilley [2006] 3 All ER 336; [2006] EWHC 407 (QB) that an Internet service provider that performed no more than a passive role in facilitating postings on the Internet and did not "host" the relevant website was not deemed to be a publisher at common law any more than a telephone company would be liable for defamation over the telephone. Godfrey [2001] QB 201 was distinguished. 32 The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )


case_title: Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615


case_text: At all material times, the Messages on the Forum were able to be downloaded and received by any member of the public without restriction. The uploading or posting of the Messages by the second respondent was an act of publication done by him. Branson J held in Jones v Toben [2002] FCA 1150 , (2002) 71 ALD 629 at [73] [75] that: "the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publications, in that it allows individuals to access the website with a browser to read that text and see those graphics." That was unaffected by the appeal ( Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515). That act plainly caused words to be communicated to the public within s 18C(2)(a) and so was not in private. (See also Conti J in Jones v The Bible Believers' Church [2007] FCA 55.)


case_text: In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user."


case_title: Thompson v Australian Capital Television [1996] HCA 38 ; (1996) 186 CLR 574


case_title: Universal Music Australia v Cooper Pty Ltd [2005] FCA 972 ; (2005) 150 FCR 1


case_title: Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127


case_text: support of the Application the Applicant has filed an Affidavit which annexes a Draft Notice of Appeal . But that Affidavit fails to comply with r 4(2). It is in inadmissible form but, more relevantly, it is more in the nature of a submission and challenges the factual conclusions made by the Refugee Review Tribunal which affirmed the decision not to grant a protection visa. But such deficiencies may presently be left to one side. Non-compliance with r 4(2) should not, as in other proceedings where an applicant has been unrepresented (e.g. Lawrance v The Commonwealth of Australia [2007] FCA 1524 at [26] ; Croker v Commonwealth of Australia [2007] FCA 1593 at [6] ), of itself necessarily impede a proper consideration of such merits as an application may present.


case_text: exercising the discretion conferred by s 24(1A) of the 1976 Act to grant leave to appeal, it may be accepted that that provision confers on the court " an unfettered discretion " in " unqualified terms ": Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. Considerations relevant when deciding whether leave to appeal should be granted are: whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and whether substantial injustice would result if leave were refused supposing the decision were wrong. In the present proceeding it is not considered that the decision of the Federal Magistrate is attendant with sufficient doubt to warrant leave being granted. Nor is it considered that the Applicant would suffer substantial injustice. His application for a protection visa has been considered on its merits by both a delegate of the Minister and by the Tribunal. His application filed with the Federal Magistrates Court has been carefully considered and no legal error discerned. No injustice is exposed in such circumstances. The Federal Magistrate, in his reasons for decision, recounted the facts relevant to the Applicant's claim for a protection visa. Those reasons record that " [n]o supporting evidence " for the claims being advanced by the Applicant was provided to the Department and also record the rejection of the claim. Those reasons further record that the Applicant was subsequently invited to attend a hearing before the Refugee Review Tribunal but that he declined that invitation. Express reference is made by the Federal Magistrate to some of the findings made by that Tribunal. Albeit not set forth expressly in his reason for decision, it is relevant to note that the Tribunal further stated: [36] The applicant did not attend the Tribunal hearing. The applicant only made the briefest of claims. The applicant claims he belongs to a minority group in Pakistan, the 'Mohanjir' community who are Muslims by religion. Without further information from the applicant I am unable to accept that he belongs to the 'Mohanjir' community. Without further information from the applicant I am unable to be satisfied that he and his family have been persecuted by the majority community in Pakistan for several years. ... [37] I am required to consider the situation if the applicant, a Pakistani citizen from Sialkot, were to return to Pakistan now or within a reasonably foreseeable future. ... But the independent evidence before me ... does not suggest that the applicant would not receive the protection of the Pakistani authorities or that such protection would be ineffective, if the applicant were to be harmed. Without further information from the applicant I am unable to be satisfied that if he returns to Pakistan he will be killed, harmed or persecuted for a Convention related reason. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. [38] I do not accept there is a real chance the applicant will suffer harm now or in the foreseeable future if he were to return to Pakistan and I am not satisfied the applicant has a well-founded fear of persecution for a Convention related reason. Given the paucity of the material submitted in support of his claim and the paucity of the material apparently available to the Tribunal, and the decision of the now Applicant not to accept the invitation extended to him to attend a hearing before the Tribunal, these conclusions were perhaps not unexpected. The reasons for decision of the Federal Magistrate then outline the manner in which he approached his task. The Federal Magistrate observed that " the applicant's original application made unparticularised contentions of ' gross violations of the Regulations and the Act '...". An amended application was apparently filed from which the Federal Magistrate discerned " four essential points ".


case_title: Lawrance v The Commonwealth of Australia [2007] FCA 1524


case_text: explanation is provided in the Applicant's Affidavit as to why any application for leave to appeal was not filed within the time prescribed. In such circumstances a proceeding may be dismissed: e.g. MZXME v Minister for Immigration and Citizenship [2007] FCA 767. Before any order is made pursuant to r 5(3) there must be a rational basis upon which any such order may be made.


case_title: Nguyen v Pascoe [2006] FCA 719

case_text: the difference in language as between O 52 r 5(3) and O 52 r 15(2), namely the constraint in r 15(2) that the Court may give leave to file and serve a notice of appeal " at any time " where there are " special reasons ", principles relevant to the exercise of that discretion have been applied when considering r 5(3): SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725. Cowdroy J there stated: [21] The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 at 348 349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules. Compliance with O 52 r 5(2) was there dispensed with in circumstances where the application for leave to appeal was filed out of time by ten days. See also: Nguyen v Pascoe [2006] FCA 719 at [41] .


case_text: in perhaps slightly different language, in Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 , Spender J set forth the terms of O 52 r 5(3) and expressed " the relevant test " as follows: THE RELEVANT TEST ... [38] The discretion to extend time conferred by that rule is given for the sole purpose of enabling justice to be done between the parties. [39] In Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 , McHugh J was concerned with the application of O 60 r 6 of the High Court Rules in respect of the applicant's application for an extension of time. McHugh J said, at 480: [Order 60 rule 6] provides that a court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. [40] There are two relevant matters concerning whether the Court should exercise its discretion to extend time. The first is whether a sufficient explanation for the delay has been forthcoming; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought be allowed to proceed. In SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 at [5] Buchanan J referred to the language of " special reasons " in O 52 r 15 when considering an application for an extension of time in relation to an " ordinary appeal " and observed that " no lesser test should be employed when considering an application for an extension of time in which to seek leave to appeal ". Concurrence is expressed with the observations of both Spender J and Buchanan J.


case_text: the present proceeding, however, neither the reasons for decision of the Federal Magistrate nor the proposed Notice of Appeal expose any basis upon which an appeal would have any prospects of success. Even if an order were to be made pursuant to O 52 r 5(3), leave to appeal would in any event be refused: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543. Such a conclusion may be relied upon as a reason for an adverse exercise of the discretion conferred by O 52 r 5(3). Justice in such circumstances does not require a dispensation from compliance with O 52 r 5(2).


case_title: SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725


case_title: SZMTC v Minister for Immigration and Citizenship [2009] FCA 162


case_text: before the Court is an Application for Leave to Appeal from a decision of the Federal Magistrates Court: SZNFR v Minister for Immigration and Citizenship [2009] FMCA 408. That Application seeks both leave to appeal and " an order that compliance with Order 52, subrule 5(2) be dispensed with ". Leave to appeal is required because the Federal Magistrate dismissed the application before that Court pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12 provides as follow: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. The dismissal of an application pursuant to Rule 44.12(1)(a) is, accordingly, an interlocutory decision and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the 1976 Act) imposes the requirement to obtain leave before any appeal may be entertained. In addition, and as the Application itself recognises, the Application as filed in this Court was filed outside the time prescribed by O 52 r 5(2) of the Federal Court Rules 1979 (Cth). Rule 5 provides as follows: Time for filing application (1) This rule applies only to applications where an appeal from the judgment lies to the Court only with leave. (2) An application shall be filed within 21 days after: (a) the judgment was pronounced; or (b) a later date fixed for that purpose by the court or judge who pronounced the decision. (3) Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with.


case_text: material before this Court includes the respondent's statement of facts and contentions before the Tribunal. This document at [27] advanced the contention that 'Great Bamboo Pty Ltd was not an eligible business because it was not a business in the necessary sense' . In support of this contention it made reference to Mason J's consideration in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 of the meaning of 'business' in a phrase such as 'carrying on a business' . There his Honour stated that in the context of the rating provisions of the Local Government Act 1919 (NSW) the phrase 'carrying on a business' denoted activities 'engaged in for the purpose of profit on a continuous and repetitive basis' (at 8-9). The respondent's statement of facts and contentions before the Tribunal argued that Mr Koosasi's business did not appear 'to have been carried out on an ongoing or repetitive basis' . At [28] the same document advanced the alternative contention that Great Bamboo was not an eligible business because it did not meet any of the requirements listed in the definition of 'eligible business' in s 134(10). In support of this contention the document made reference to the absence of evidence that Mr Koosasi had developed business links with the international market. It also noted that Great Bamboo had not created and was unlikely to create employment, that it had not introduced new or improved technology into Australia nor had it increased commercial activity or competitiveness in the Australian economy. At [39] of its written reasons for decision the Tribunal conflated the two submissions of the respondent identified above, noting: 'The respondent also submits that the business is not an "eligible" business as it has only completed four export transactions since its registration in January 2003 and such limited number could not be considered continuing or repetitive ... there is no evidence the company has developed links with international markets; and the company has not created employment; exports of wheat, flour and juice has not introduced any new or improved technology to Australia.' (a reference to authority omitted)


case_text: 18 September 2006, I delivered reasons for judgment in this proceeding and adjourned the matter to Monday 25 September 2006 for any argument as to the orders that should be made to give effect to my reasons: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [251] . These reasons for decision are directed to the final orders that I have determined to make, having heard submissions from the applicant and the respondents yesterday. The issues that separated the parties narrowed considerably during the course of yesterday's hearing. The remaining differences relate to the form of declaratory relief that is appropriate and the costs orders that should be made. AWB submitted that, where I have determined that documents attract privilege, wholly or partly, the Court should make a declaration to that effect. On the other hand, AWB submitted that, where I have determined that documents over which AWB claimed privilege do not attract privilege or that any privilege has been waived, I should not make a declaration to that effect. It submitted that any such declaration was unnecessary and would lack utility. Senior Counsel for AWB said, from the bar table, that the documents in question were being produced to the Commission. The relevance of this is dubious, as it follows the delivery of my reasons for judgment and, presumably, anticipates that final orders will be made that give effect to those reasons. AWB also pointed out that the Commonwealth had not mounted any cross-claim for declaratory relief in its favour.


case_text: making of a declaration and the terms in which it should be framed are in the Court's discretion: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437-439 per Gibbs J; and Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 ( 'Ainsworth' ) at 581-582 and 596-597. As a matter of substance, the dispute that AWB submitted to the Court for its adjudication was whether legal professional privilege did, or did not, attach to the documents in AWB's further revised list of privileged documents dated 7 August 2006 (as supplemented by letters from AWB's solicitors to the Court dated 25 August 2006 and 5 September 2006). In my opinion, any declarations made by the Court should reflect the final outcome of this case with certainty and precision. Moreover, it is desirable that there should be an authoritative resolution of the dispute presented to the Court.


case_text: making of a declaration and the terms in which it should be framed are in the Court's discretion: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437-439 per Gibbs J; and Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 ( 'Ainsworth' ) at 581-582 and 596-597. As a matter of substance, the dispute that AWB submitted to the Court for its adjudication was whether legal professional privilege did, or did not, attach to the documents in AWB's further revised list of privileged documents dated 7 August 2006 (as supplemented by letters from AWB's solicitors to the Court dated 25 August 2006 and 5 September 2006). In my opinion, any declarations made by the Court should reflect the final outcome of this case with certainty and precision. Moreover, it is desirable that there should be an authoritative resolution of the dispute presented to the Court. I have concluded that the Court should make a declaration, reflecting my reasons for judgment, that legal professional privilege attaches to specified documents, and does not attach to other specified documents. Declaratory relief in this form is appropriate because it determines the legal controversy that was before the Court: see Ainsworth at 582 and 596-597; and Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. As AWB's application makes clear, the controversy includes the question whether the documents at issue are protected from production to the Commission by legal professional privilege. This controversy is only likely to be quelled, completely and finally, by making a declaration in the form I propose.


case_text: have concluded that the Court should make a declaration, reflecting my reasons for judgment, that legal professional privilege attaches to specified documents, and does not attach to other specified documents. Declaratory relief in this form is appropriate because it determines the legal controversy that was before the Court: see Ainsworth at 582 and 596-597; and Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. As AWB's application makes clear, the controversy includes the question whether the documents at issue are protected from production to the Commission by legal professional privilege. This controversy is only likely to be quelled, completely and finally, by making a declaration in the form I propose.


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: submitted that the circumstances do not warrant any departure from the usual approach that an applicant who achieves substantial success should have the costs of the proceedings. AWB relied in particular on the following passage from Cretazzo v Lombardi (1975) 13 SASR 4 ( 'Cretazzo' ) where Jacobs J said at 16: 'But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.' In short, AWB submitted that it achieved substantial success and that it should have the costs of the proceeding, notwithstanding its failure on the issues of waiver and the fraud exception. The Commonwealth submitted that AWB should pay its costs of the proceedings. It argued that success in this case cannot be measured purely in numerical terms; rather a judgement ought to be made as to which party has had substantial success in the case, having regard to the significance of the issues decided by the Court in favour of one or other party. It added that a finding that privilege subsists in a large number of technical or peripheral documents cannot be weighed in the same scale. The Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.


case_text: Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.


case_title: Cummings v Lewis (1993) 41 FCR 559


case_title: Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748


case_title: Forster v Farquhar (1893) 1 QB 564


case_title: Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172


case_text: many cases, these principles can only be applied sensibly by taking a broad view of the results of the case and the issues that were litigated. An allocation of costs in a case of mixed results can rarely if ever be done with mathematical precision: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272 per Gummow, French and Hill JJ. Taking a broad and overall view of the outcome of this case, I consider that both AWB and the Commonwealth achieved a substantial measure of success. I cannot agree with AWB's submission that, in material respects, it was the successful litigant. The Commonwealth succeeded on a number of very important issues. It established that privilege did not attach to numerous documents that are likely to be material to the issues being investigated by the Commission. AWB did not merely fail 'along the way' to prove particular issues of fact and law which, in the end, did not prevent it achieving substantial success; rather, AWB lost some of the most substantial issues that were litigated. Those issues involved more than half of the hearing time occupied by this case. In all the circumstances, I consider that the just and appropriate order is that there be no order as to the costs of the proceeding. The result will be that AWB and the Commonwealth must each bear its own costs. I do not consider that there is any substance in the criticisms that AWB directed towards the Commonwealth. The Commonwealth was entitled to put AWB to the proof of its privilege claims. Nor do I agree with AWB's assertion that the description of the documents in AWB's lists was generally sufficient to enable the Commonwealth to form a view about the provenance of each document and the grounds upon which privilege was claimed. AWB also sought the costs of its notice of motion dated 19 June 2006 and the first respondent's notice of motion dated 24 July 2006. I have concluded that there should be no order as to the costs of these notices of motion.


case_text: 459S(2) of the Corporations Act provides that leave is not to be granted unless the Court is satisfied that the ground relied upon is material to proving that the company is solvent. The primary judge concluded that a challenge to the debt will be material to proving that the company is solvent if the company is able to demonstrate that if the debt does not exist, then the company will be solvent. That approach is conventionally understood as the "narrow approach" to s 459S of the Corporations Act . In adopting that approach, the primary judge applied the reasoning of Spigelman CJ in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 674 and particularly at [56]. The observations of the Chief Justice are consistent with the views expressed by Perram J in Grant Thornton Services (NSW) Pty Limited v St George Wholesale Distributors Pty Limited [2008] FCA 1777 at [19] to [22].


case_title: Grant Thornton Services (NSW) Pty Limited v St. George Wholesale Distributors Pty Limited [2008] FCA 1777


case_title: HVAC Construction (QLD) Pty Ltd v Energy Equipment Engineering Pty Ltd [2002] 44 ACSR 169


case_text: primary judge also relied upon the authorities of HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 and particularly at [53] (per French J) and Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] to [45] (per Besanko J). Having considered the reasons of the primary judge in relation to the construction and operation of s 459S of the Corporations Act , I am satisfied that there is no error reflected in his Honour's approach to the authorities and his Honour's approach to the construction and application of s 459S of the Corporations Act .


case_text: addition to the question of construction of the relevant provision of the Act, his Honour also turned to some of the affidavit material and the facts reflected in those affidavits. At [10] of the primary judge's reasons in Deputy Commissioner of Taxation v Neo Rock Pty Ltd [2009] FCA 129 on 12 February 2009, the primary judge said this: The evidence lead on behalf of Neo Rock on the application is noteworthy for its absence of reference to the overall financial position of that company. There is no evidence which touches upon the assets and liabilities of the company generally, its profit and loss, its balance sheet, or its solvency, either having regard to the debt as it presently stands (which has its origins in that which supported the statutory demand) or otherwise howsoever. The focus of the affidavit material which has been read is on dealings as between Neo Rock and the Australian Taxation Office (the ATO) in the context of an as yet unresolved audit of that company's taxation affairs by the ATO. The primary judge noted that the company had engaged a chartered accountant, Mr Vicca, to assist the company with the task of bringing its business activity statements up to date. Mr Vicca expressed certain opinions about the balance debt due to the Deputy Commissioner. The Deputy Commissioner in response filed affidavit material which suggested that the present indebtedness of the company to the Deputy Commissioner and therefore payable as a debt due to the Commonwealth was $24,132.01. The company contests aspects of that assertion and did so before the primary judge. The primary judge also noted at [13] that the company had failed to lodge income tax returns for the financial years ending 30 June 2005, 2006, 2007 and 2008. The primary judge concluded at [14]: It is not a satisfactory state of affairs for a company, faced with an application for its winding up in respect of a debt which it has not contested in the way provided for when a statutory demand was issued, to seek an indefinite adjournment of a winding up application on the strength of what is, in substance, an assertion unfocussed on the subject of proof of the solvency of the company.


case_text: Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.


case_title: MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172


case_title: NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659


case_text: considering the substance of the applicant's claims, it is to be observed that ordinarily the Court cannot revisit its findings. In Wentworth v Woollahra Municipal Council and Others [1982] HCA 41 ; (1982) 149 CLR 672 at 684 Mason ACJ, Wilson and Brennan JJ said:- ...the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. Similarly, Mason CJ in Autodesk Inc. and Another v Dyason and Others (No. 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 303 said that the power of the Court to reconsider judgments would not be exercised for the purpose of ' re-agitating arguments already considered by the Court ', nor ' because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put '. While such authority refers to a basis for reviewing an earlier decision where the Court, still possessing jurisdiction in a proceeding, later considers its decision to be erroneous, this Court considers that the principle referred to in Autodesk and McMullin applies generally and should guide this Court in the present circumstances. Is forfeiture dependent upon conviction or commission of a criminal offence?


case_text: applicant relies upon the decision of the Full Court of the Supreme Court of South Australia in Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 in which the Court at 221-222 considered the meaning of the word 'contravention'. Additionally, the applicant submits that the principle of interpretation that Parliament is not taken to deprive persons of property rights without expressing its intention in unmistakable and unambiguous terms applies: see Coco v R (1994) 179 CLR 427 at 437-438. The applicant also relied upon the rule of construction that dispossession of a valuable property right without compensation cannot be imputed to Parliament unless expressed in unequivocal terms incapable of any other meaning: see Coco v R at 437-438. The applicant submits that the word 'contravention' used in s 261A of the Migration Act should be construed narrowly and confined, in accordance with the Second Reading speech of the Act inserting s 261A into the Migration Act , to those cases where forfeiture of the vessel occurs as a penalty in relation to 'people smuggling' criminal offences and not in respect of those instances where persons seek asylum.


case_text: answer to the applicant's submissions lie the words used in s 261A of the Migration Act . The words providing for the forfeiture are clear and unequivocal. The principles relied upon by the Commonwealth concerning forfeiture of property are not in contest, and the concept is clearly recognised: see for example Customs and Excise Commissioners v. Air Canada [1991] 2 QB 446. In that decision the Court upheld the validity of a forfeiture of an aircraft which was involved in the carriage of cannabis resin, even though the owners of the aircraft were unaware of that fact. Whilst the law providing for forfeiture may appear harsh, that is the necessary consequence of its operation regarding property rights. In the present circumstances forfeiture occurred when the vessel was used or involved in a ' contravention of this Act '. Such contravention occurred by the bringing in or coming into Australia of one or more persons who were or became unlawful non-citizens, contrary to s 42 of the Migration Act . The text of s 261A of the Migration Act is unambiguous. In these circumstances the authorities relied upon by the applicant have no scope for application. The Refugee Convention