case_text: The applicant submitted that there were no authorities of direct assistance. It referred to Master Builders' Association as authority for the proposition that if an employee is required by his contract of employment to perform an activity, in that case driving to and from work, then that will be considered part of his work even though it is not the main activity he is required to perform. The applicant also referred to Mrs P Davies v Neath Port Talbot County Borough Council [1999] ICR 1132 where the Employment Appeal Tribunal in England held that a union representative who attended a training course was engaged in work and made observations as to the benefits to the employer of such training. In my opinion, the statutory and regulatory context of these cases is so different from that under consideration in this case that they are of very little assistance. 42 The applicant submitted that an amendment to the award made on 1 November 2004 supported the interpretation it advanced. The amendment dealt with school-based apprentices and introduced a new cl 38.12.3 as follows: ' 38.12.3 Notwithstanding the other provisions of this clause, school based apprentices shall only receive the allowances prescribed under clause 38.1, 38.2 and 38.3, at the scale prescribed in clause 38.12.1, for days when they attend work and they shall not be paid the allowance for days they attend school. When a school based apprentice attends off-the-job training, not at the school in which they are enrolled, they shall receive 25% of the allowance as prescribe in clause 38.12.1.' 43 The applicant submitted that I could infer from this amendment that the award prior to the amendment provided for apprentices to be paid for attendance at trade school. Why otherwise, asked the applicant, would it be necessary to specifically say that school-based apprentices are not to be paid the allowance for days they attend school? Even if it was appropriate to use the amendment in this way, other questions arise. For example, the amendment specifically provides that school-based apprentices are to receive a lower proportion of the allowance for attendance at training other than at the school at which they are enrolled. It might be asked why there was a need for a specific provision if they were otherwise covered and why the allowance is such a low proportion of the allowance specified in cl 38.12.1. I do not find the amendment to the award to be of any assistance in interpreting the award.


case_outcome: cited

case_title: Qantas Airways v Fetz (1998) 84 IR 52

case_text: The Industrial Relations Commission of South Australia in Zajaczkowski v Podean Electronic Industries Pty Ltd (No 4) (1996) 69 IR 307 discussed the common law distinction between contracts of apprenticeship and contracts of service. The distinctive features of a contract of apprenticeship were discussed by Vice President Ross in Fetz v Qantas Airways (1997) 77 IR 443 at 454 and by the Full Bench of the Commission on appeal ( Qantas Airways v Fetz (1998) 84 IR 52 at 65-66).


case_outcome: considered

case_text: In Short v F W Hercus Pty Ltd (1993) 40 FCR 511, Burchett J said (at 518): 'The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.' I also refer to, without repeating, the observations of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [50]-[57].


case_text: In Wallace v CA Roofing Services Ltd [1996] IRLR 435, Sedley J said (at 436): 'Since the enactment of the Apprenctices Act 1814 it has not been necessary for an apprenticeship to be created by indenture or to last for seven years or more. Although enforceability depends on the contract being in writing ( Kirkby v Taylor [1910] 1 KB 529) an employer who has acted upon an oral contract of apprenticeship will be held to it as if it were in writing ( McDonald v John Twiname Ltd [1953] 2 QB 304). Although modern legislation has for its own purposes assimilated apprenticeships to contracts of employment (see the Employment Protection (Consolidation) Act 1978 s 158(1) and, for example, s 49, which affects minimum periods of notice), the contract of apprenticeship remains a distinct entity known to the common law. Its first purpose is training; the execution of work for the employer is secondary (see Wiltshire Police Authority v Wynn [1981] 1 QB 95 at 109, 110 and 113-114).'


case_text: The respondent submitted that the common principles as to the nature of contracts of apprenticeship support the interpretation of the award for which it contends. In Wiltshire Police Authority v Wynn [1981] QB 95. Lord Denning MR referred to the distinction at common law between a contract of apprenticeship and a contract of service. The Master of the Rolls said (at 109): 'The courts drew a distinction according to which purpose was the primary purpose: and which was secondary. If the primary purpose was work for the master and teaching a trade was only a secondary purpose it was a contract of service. But if teaching a trade was the primary purpose and work for the master was only secondary then it was a contract of apprenticeship.' I also refer to the remarks of Waller LJ at 111. Dunn LJ said (at 113-114): 'In my judgment, the Employment Appeal Tribunal failed to give sufficient weight to the question, what is the nature or substance of the relation created? Ever since the settlement cases of the 18 th and 19 th centuries, the common law has held that the court must look at the principal object of the contract in deciding whether or not a contract of service exists. Where the primary object of the contract is teaching or learning, then there is no contract of service. In Horan v Hayhoe [1904] 1 KB 288 it was held that an apprentice jockey was not employed under a contract of service although in the ordinary course of his training and for the purpose of learning his business he performed the duties of a stable-boy during a considerable part of the day, was paid wages and was given free board and lodgings. He was not employed as a servant. The principal object was teaching and learning. The fact that the conditions of engagement are consistent with a contract of service is not decisive if the principal object of the relationship is teaching and learning. In placing emphasis on the terms of engagement of the police cadet rather than on the principal object of the relationship, in my judgment the Employment Appeal Tribunal fell into error.' 45 In Wallace v CA Roofing Services Ltd [1996] IRLR 435, Sedley J said (at 436): 'Since the enactment of the Apprenctices Act 1814 it has not been necessary for an apprenticeship to be created by indenture or to last for seven years or more. Although enforceability depends on the contract being in writing ( Kirkby v Taylor [1910] 1 KB 529) an employer who has acted upon an oral contract of apprenticeship will be held to it as if it were in writing ( McDonald v John Twiname Ltd [1953] 2 QB 304). Although modern legislation has for its own purposes assimilated apprenticeships to contracts of employment (see the Employment Protection (Consolidation) Act 1978 s 158(1) and, for example, s 49, which affects minimum periods of notice), the contract of apprenticeship remains a distinct entity known to the common law. Its first purpose is training; the execution of work for the employer is secondary (see Wiltshire Police Authority v Wynn [1981] 1 QB 95 at 109, 110 and 113-114).'


case_title: Zajaczkowski v Podean Electronic Industries Pty Ltd (No 4) (1996) 69 IR 307


case_outcome: applied

case_text: I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant's complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 76-77 [81] - [83] , Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer's fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573: 'An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.' 49 However, in a case like the present, I am of opinion that it was not appropriate for his Honour to have used Ms Frank's affidavit in any way, although the parts of the affidavit which his Honour used were simply confirmatory of what the appellant herself had accepted in her cross-examination and also of what the objective evidence revealed. As Kirby J remarked in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 63 [47] : '... it is every person's right to have a trial conducted in accordance with the law. The trial judge here was disqualified because he crossed the line. The trial did not conform to law.' 50 The fact is that his Honour's intervention and use of Ms Frank's affidavit raises more questions for a fair minded observer than it answers. One does not know what, if anything, his Honour discarded in order to assess what he said was relevant to use from the other material in the file. Why did his Honour need to review any of the other material that was not formally before the court placed there in the ordinary way by the parties seeking to have their dispute properly ventilated? 51 In one sense it may be possible to say that the material used from Ms Frank's affidavit would have made no difference. In my opinion that material was capable of falling into such a category. However, the evidence of Ms Frank in this case did not assist the appellant's case at all. At worst it bolstered the case of the University and Mr Xiao as to her lack of complaint and made her case look thinner. There was no need for the evidence of Ms Frank to be called in aid for that purpose, for the very reasons which the University has sought on this appeal to say that the evidence would have made no difference. The trouble is that his Honour saw fit himself to introduce that evidence, after the appellant had given evidence and without any attention to the rules of the court providing for making directions about examination and cross-examination of the witness whose evidence it was.


case_outcome: referred to

case_text: The failure to make an order identifying a separate issue and proceeding upon determination of the informal issue amounted to a formal defect or irregularity which, in my opinion, caused no prejudice in the conduct of the proceedings which were heard by the trial judge on 6 April and decided on 16 May 2005: cp: Australian Security and Commission v Ampolex Limited (1995) 38 NSWLR 504 at 511C-D per Kirby P; Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 at 753; applying Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735-736. As Lord Denning MR said in the last case: 'Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice' ([1967] 2 QB at 735-736)


case_title: Australian Security and Commission v Ampolex Limited (1995) 38 NSWLR 504


case_text: In Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists and R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial it must be exercised with extreme caution. He continued (24 CLR at 116): 'In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.' Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock & Co's Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, 'Court Witnesses A Desirable or Undesirable Encroachment on the Adversary System?' (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine.


case_text: Effectively the appellant argues that because her oral and affidavit evidence at the hearing was not found to have been what was the correct version of events, that his Honour's decision should be overturned. It was for his Honour to form a view as to which witnesses' evidence, whether in whole or in part, he accepted, having seen or heard them. His Honour gave reasons for preferring Mr Xiao's evidence to that of the appellant and I can discern no error in those reasons, nor has the appellant demonstrated any such error. I see no reason for disturbing his Honour's conclusion on credibility and reliability of the witnesses based on my review in exercising the appellate jurisdiction of the court of the record of the trial ( Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 125-129 [22] - [31] ; CSR Ltd v Della Maddalena [2006] HCA 1 ; (2006) 224 ALR 1 at 6-9 [13] - [24] per Kirby J, Gleeson CJ agreeing at 3 [1]).


case_text: In Ebner v Official Trustee [2000] HCA 63 ; (2000) 205 CLR 337 at 344-345 [6] - [8] Gleeson CJ, McHugh, Gummow and Hayne JJ said: 'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.'


case_outcome: discussed

case_text: This case is not like the circumstances in Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629; [2002] FCAFC 223 where the trial judge had erroneously included in his judgment, as having been read and being credible, material from affidavits which, in fact, had never been read in the proceedings. However, as Merkel J, (with whom Heerey J at 193 ALR 635 [29] and Lindgren J at 193 ALR at 636 [32] agreed) said that (193 ALR at 652 [78]: 'While not every breach of the rules of natural justice invalidates the decision made, once the breach is proved the court should refuse relief only when it is confident that the breach could not have affected the outcome.'


case_title: Galea v Galea (1990) 19 NSWLR 263

case_text: I am of opinion that a fair-minded person could reasonably have apprehended that his Honour was seeking to assist the respondents' cases by introducing the evidence. Excessive judicial intervention in proceedings sometimes raises issues of fact and degree as to how far a judge is or is not entitled to go. Thus Wood CJ at CL noted that the line that a trial judge walks when asking questions of a witness is a narrow one ( R v Esposito (1998) 45 NSWLR 442 at 472B-C; see too Galea v Galea (1990) 19 NSWLR 263 esp at 280-282 per Kirby ACJ). But the issue here really is whether a fair-minded person could reasonably have apprehended that his Honour's introduction and use of Ms Frank's evidence indicated that he was not being impartial.


case_title: Goldsmith v Sandilands [2002] HCA 31 ; (2002) 190 ALR 370

case_text: I have anxiously given consideration as to whether it could be said that his Honour's conduct could have made no difference (see e.g. Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31 ; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 444 [28]-[29]; [2003] HCA 60) but I have come to the conclusion the course his Honour took is so irregular that the breach of the rules of procedural fairness cannot be regarded as not possibly having affected the outcome. A different judicial officer may have taken a different view as to the appellant's credibility and that of Mr Xiao and if that had happened, the outcome may have been different.


case_title: Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729


case_title: In re Enoch and Zaretzky Bock & Co's Arbitration [1910] 1 KB 327


case_title: John v Rees [1970] Ch 345

case_text: As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 116-117 [80] - [81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'


case_text: As the High Court said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145: 'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.' 47 Here the question is not so much whether further information could possibly have made any difference. The question is whether or not the proceedings below crossed the line described in the seminal case of Jones v National Coal Board [1957] 2 QB 55 at 63 by the English Court of Appeal who said: 'In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.' 48 Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: '... that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".' That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.


case_text: At the end of the day, if the absence of a witness occurs and this affects the quality of the evidence properly before the court, the result will still be fair as between the parties, if the judge acts on that limited material, even though it may be thought to be unsatisfactory. The latter, but not the former, consequence may be the fault of the parties in their selection of the evidence or it may be that the parties have each decided that the witness would be of no assistance (cp: Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 920H-921C per Lord Roskill; DA Ipp 'Judicial Intervention in the Trial Process' (1995) 69 ALJ 365 at 373-375). 29 In any event, the trial judge in admitting Ms Frank's evidence, to the extent that he considered the basis of its admissibility at all, did no more than express a view that it was relevant. There was no necessity to admit that evidence. The circumstances of the proceedings were unexceptionable and raised no occasion on which it could be said that it was appropriate, on any of the tests above, to admit Ms Frank's evidence in the way in which his Honour did. 30 I am satisfied that Ms Frank's evidence was not properly received and that in the circumstances there was no basis for the trial judge to have admitted or used Ms Frank's evidence. 31 The issue assumes increased significance because in his Honour's reasons for judgment, having referred to the admission of the material from Ms Frank's affidavit ([2005] FMCA 463 [8]) his Honour considered the allegations made by the appellant on the Briginshaw [v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-362 per Dixon J] standard ([2005] FMCA 463 at [32]). His Honour noted that required him to have a high degree of satisfaction that the events alleged by the appellant happened. His Honour found as supporting his conclusion that he did not have that high degree of satisfaction. Among other things, he relied on the fact that the appellant had made no complaint about Mr Xiao's alleged conduct until more than twelve months afterwards although she had been expressly given the opportunity to make a complaint in 2002 ([2005] FMCA 463 at [32]). 32 A fair-minded observer sitting in the court room might wonder why, when the University was represented, it had not led any evidence from Ms Frank, yet his Honour had gone through the papers and had found an affidavit by her and had then identified parts of it as being 'relevant' and as ' effectively confirm[ing] ' that the appellant had not, in any written material lodged with the University, raised any allegations against Mr Xiao in 2002. By saying ' I think for completeness I should receive paragraphs 1, 2, 3 of Sybille Frank's affidavit of 10 January 2005 for the purposes of today's proceedings' his Honour was deciding of his own motion to admit material which no party had put before him as her, his or its evidence at the hearing. Ms Frank was not required to be present or to be available for cross-examination.


case_title: Preston v Carmody (1993) 44 FCR 1

case_text: I do not consider that any question of waiver of his Honour's conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said: 'But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver.


case_text: The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] . 23 In Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists and R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial it must be exercised with extreme caution. He continued (24 CLR at 116): 'In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.' Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock & Co's Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, 'Court Witnesses A Desirable or Undesirable Encroachment on the Adversary System?' (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine. 25 In Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 at 540 Wilcox J expressed the view in obiter dicta , that in a civil action, a trial judge has power to call a witness, even over the opposition of a party, but that the discretion to take such a course should be exercised sparingly and with great care. (See too Wigmore on Evidence (Chadborn Revision) Vol 9 SS2483 where the learned author emphatically asserts the right of a judge in a civil case to call a witness.) Wilcox J said this view was consistent with the principle adopted in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 in respect of criminal trials. Unless his Honour meant by the word 'sparingly' to encapsulate the concept of the power being exercisable only '... in the most exceptional circumstances' (154 CLR at 575 [5]), I am unable to agree that the power in a civil case may be exercised more freely, absent statutory authority. 27 So, it is vital to guard against an absolute prohibition of a judge's power of calling witnesses because some circumstances in which courts exercise jurisdiction are not wholly adversarial. But the power, according to the authorities to which I have referred, exists to prevent, not occasion, a miscarriage of justice which the judge perceives would otherwise occur. Before forming such a view, over the opposition of the parties and, where appropriate, their legal representatives, a trial judge would obviously need to consider whether the conscious choice of the parties not to call the witness properly can be overborne by the court while preserving the appearance and actuality of judicial impartiality. For a judge to use his or her power to override the choice of the parties as to what evidence they will adduce in order that the judge may decide their dispute is a drastic step which must only be available even in civil proceedings '... in the most exceptional circumstances' ( R v Apostilides (1984) 154 CLR at 575 [5]). The exercise of such a power removes the court from its usual and necessary position outside, and places it within, the forensic arena (cp: Yuill v Yuill [1945] P 15 at 20).


case_title: R v Esposito (1998) 45 NSWLR 442


case_text: The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] .


case_title: Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82


case_title: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437


case_text: Merkel J then referred to what the High Court had said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-146: 'It is no easy task for a court of appeal to satisfy itself that what appears on its face would have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.' 44 The University submitted that the objective evidence showed that Ms Frank's evidence was uncontroversial and therefore did not and could not affect the result of the proceedings. The appellant had conceded in cross-examination that she had not made in her very lengthy complaint to the University, to which Ms Frank's evidence related, any mention whatever of Mr Xiao (Transcript 6 April 2005 pp 44 line 25 45 line 5) and that the first time she had written to the Human Rights and Equal Opportunity Commission in July 2002, the appellant had made no mention of a complaint involving Mr Xiao (Transcript 6 April 2005 pp 48 line 32 49 line 22). 45 Moreover, the appellant agreed that prior to her complaint to the Human Rights and Equal Opportunity Commission of 31 October 2002 she had made no complaint against Mr Xiao relating to being shown a photograph of a naked man and a naked woman in August or September 2001 (Transcript 6 April 2005 pp 52 line 25 53 line 14). Accordingly, it was submitted that the admission of the material of Ms Frank's affidavit did not, as a matter of substance, affect the outcome of the proceedings or create any substantive adverse consequence for the appellant in the proceedings. 46 As the High Court said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145: 'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.' 54 As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 116-117 [80] - [81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'


case_text: The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] . 23 In Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists and R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial it must be exercised with extreme caution. He continued (24 CLR at 116): 'In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.' Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock & Co's Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, 'Court Witnesses A Desirable or Undesirable Encroachment on the Adversary System?' (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine.


case_text: In Ebner v Official Trustee [2000] HCA 63 ; (2000) 205 CLR 337 at 344-345 [6] - [8] Gleeson CJ, McHugh, Gummow and Hayne JJ said: 'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.' 37 I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant's complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 76-77 [81] - [83] , Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer's fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573: 'An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.' 38 I do not consider that any question of waiver of his Honour's conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said: 'But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver. 40 So much will depend on the facts of the particular case that further generalized discussion by me is not fruitful. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 571-572, Brennan, Deane and Gaudron JJ considered how far a trial judge could express preconceived views about expert medical witnesses who frequently in the past had given evidence before him. They said (167 CLR at 571-572): 'On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. In the passage in his judgment in [ Re Watson: Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 294] to which we have referred, Jacobs J pointed to the undoubted fact that "it is confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct". Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.' 41 Again, this case is different because the material from Ms Frank which the trial judge used confirmed what already appeared to have been established.


case_title: Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657


case_title: Yuill v Yuill [1945] P 15

case_text: So, it is vital to guard against an absolute prohibition of a judge's power of calling witnesses because some circumstances in which courts exercise jurisdiction are not wholly adversarial. But the power, according to the authorities to which I have referred, exists to prevent, not occasion, a miscarriage of justice which the judge perceives would otherwise occur. Before forming such a view, over the opposition of the parties and, where appropriate, their legal representatives, a trial judge would obviously need to consider whether the conscious choice of the parties not to call the witness properly can be overborne by the court while preserving the appearance and actuality of judicial impartiality. For a judge to use his or her power to override the choice of the parties as to what evidence they will adduce in order that the judge may decide their dispute is a drastic step which must only be available even in civil proceedings '... in the most exceptional circumstances' ( R v Apostilides (1984) 154 CLR at 575 [5]). The exercise of such a power removes the court from its usual and necessary position outside, and places it within, the forensic arena (cp: Yuill v Yuill [1945] P 15 at 20). 48 Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: '... that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".' That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.


case_text: Gibbs J made similar observations in Fencott and Others v Muller and Another [1983] HCA 12 ; (1983) 152 CLR 570 at 591: 'It is now established by Philip Morris v. Brown that once a federal court is invested with jurisdiction with respect to a matter, it may determine all the questions which form part of that matter, even though they are questions which it would have no jurisdiction to entertain if they arose in separate proceedings.' At 593 his Honour continued: 'The question whether one claim is inseverable from another, so that both are part of one matter, is a question of fact and degree. The Constitution , however, makes it clear that the attached claim must be part of the matter that attracts jurisdiction; closeness of association is not enough.' 32 Two observations may be made. First, the facts and evidence relating to the claim of the Moskalevs' alleging discrimination are different to those relating to the administrative review of the Department's decision pursuant to its Priority Housing Policy and are not 'inseverable' (see: Gibbs J in Fencott v Muller 152 CLR 593). The Court accepts the submission of the Department that there was no requirement for it to adduce evidence of its procedures relating to the operation of the Housing Appeals Committee in view of the only matter before Driver FM, namely the claim of discrimination. The order requires the Department to undertake a merits review of its determination in relation to the Moskalevs' application for priority housing when such question did not arise either as a federal or as an associated matter. 33 Second, the request of the Moskalevs' to be placed on the priority housing list did not constitute a separate 'matter' for the exercise of the Court's jurisdiction. The claim for such order was ancillary to the claim of discrimination under the HREOC Act. Accordingly s 18 of the FMA cannot be used as a source of jurisdiction to justify the order. 34 The order could have been justified under s 46PO(4) of the HREOC Act had a finding of unlawful discrimination been made. In the absence of any finding of unlawful conduct by the Department there was no jurisdiction under s 15 of the FMA which could support the order and the request to be placed on the priority housing list does not constitute an 'associated matter' under s 18 of the FMA. It follows that the order was made ultra vires.


case_text: Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].


case_text: Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson & Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd & Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.


case_title: Mather v Luttrell Ltd & Ors [2003] FMCA 62


case_text: In Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others [1981] HCA 7 ; (1981) 148 CLR 457 at 474, Barwick CJ said of the application of s 32 of the Federal Court Act: 'Thus, there may be circumstances in which the matter does not in substance itself attract federal jurisdiction, though that which attracts federal jurisdiction must in some way relate to the matter. Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter.' Since s 18 of the FMA is in virtually identical terms to s 32 of the Federal Court Act, his Honour's observations are pertinent to the associated jurisdiction of the FMC. 27 There are however, limits to the type of matter which can properly be described as 'associated' with the jurisdiction of a federal court. Barwick CJ expressed the following caution at 474: 'But the jurisdiction will not extend to any other matter, though that other matter might in some sense be an allied or associated matter. To be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted.' 28 Gibbs J (as he then was) said of the extent of the jurisdiction of the Court to deal with matters, other than federal claims at 499: 'The cases to which I have referred show that if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination.'


case_title: Rana v Fergusson & Ors (No 1) [2003] FMCA 293


case_text: In Re Wakim; Ex parte McNally and Another; Re Wakim; Ex parte Darvall; Re Brown and Others; Ex parte Amann and Another; Spinks and Others v Prentice [1999] HCA 27 ; (1999) 198 CLR 511 at 585 Gummow and Hayne JJ said of the associated jurisdiction: 'So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other (377), as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate" (378), "completely separate and distinct" (379) or "distinct and unrelated' (380) are not part of the same matter.' These authorities confirm that to enliven the associated jurisdiction of a court invested with federal jurisdiction, the facts must be common to each matter and the relief sought must be substantially the same. 31 Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].


case_title: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933


case_title: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500


case_title: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254


case_title: The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8 ; (1971) 123 CLR 361


case_text: Despite Driver FM making no finding of direct or indirect discrimination by the Department against Mr Moskalev under the DDA, his Honour considered that the Department had given inadequate consideration to the cumulative medical evidence provided to the Commission. With regard to the request by Mr Moskalev for a three or four bedroom free-standing house, his Honour noted at [33] of his judgment that the Department: 'ought to have accepted that there was sufficient evidence of a medical need for detached accommodation to justify restricting the assessment of available private accommodation to that class of dwelling...' His Honour stated at [35]: 'While the claim of indirect or direct discrimination fails the Department should, in my view, reassess Mr Moskalev's entitlement to priority housing on the basis that the available medical evidence points to a medical need for fully detached accommodation... Mr Jungwirth, in argument, indicated that the Department would not find such a direction objectionable. As I noted in Tyler v Kesser Torah College [2006] FMCA 1 , at [108] s.46PO(4) of the HREOC Act is not an exhaustive statement of the orders that may be made by the Court in proceedings under the Act. In my view, even where unlawful discrimination is not established, the Court may, in appropriate circumstances (as here) use s.15 of the Federal Magistrates Act 1999 (Cth) to correct administrative error.' 13 It should be observed that the Department, through its counsel, disavowed the statement that it ' would not find such a direction objectionable' . However, based upon such understanding, his Honour made the following orders: '(1) The respondent shall reassess the applicants' eligibility for priority housing under the respondent's priority housing policy upon the basis that Mr Illya Moskalev has demonstrated a medical need for free standing accommodation with a backyard. (2) The application is otherwise dismissed.' 14 The Department challenges the validity of Order (1) ('the order') on the ground that Driver FM had no power to make it in the absence of a finding of unlawful discrimination under the DDA. The Department submits that the order of Driver FM in effect required the Department to review the exercise of its statutory functions under the Housing Act 2001 (NSW) ('the Housing Act ') and as such the reasoning of Driver FM constituted an impermissible merits review of the Department's determination of the Moskalevs' application for priority housing. 15 The Department also submits that in the absence of a finding of unlawful discrimination no occasion arose for Driver FM to consider any question of judicial review of the Department's administrative actions. It submits that Driver FM erroneously substituted his own opinion by finding at [33] of his decision: 'The Department should have followed the [Department's Housing Appeals] Committee's advice and accepted that a medical need for free standing accommodation had been established'. 16 The Department is a statutory corporation established under the Housing Act . Its affairs are conducted by the Director-General of the New South Wales Land and Housing Corporation (see: s 6(2) of the Housing Act ) who has responsibility for maintaining and overseeing the operations of the Corporation in the name of the Department (see s 6(7) of the Housing Act ). The objects of the Housing Act are to ensure the provision of social housing to persons with demonstrable need for such assistance in New South Wales. The Housing Appeals Committee is an internal committee of the Department established as a second level avenue of appeal. The Department acknowledges that it is bound to observe both State and Commonwealth anti-discrimination legislation in relation to the provision of housing. 24 Driver FM, referring to his decision in Tyler v Kesser Torah College [2006] FMCA 1 considered that even if unlawful discrimination has not been established s 15 of the FMA could be used to correct administrative error. Due to the ancillary nature of orders that may be made under s 15 of the FMA, such observation is valid provided that the Court in making the order is exercising a source of federal jurisdiction. 25 Driver FM had before him a claim alleging discrimination under the HREOC Act. Such claim, if upheld could give rise to relief of a kind proposed by the order. However section 46PO(4) of the HREOC Act does not provide any power to make declarations or orders against a party where there has been no finding of unlawful discrimination. The Court can only make orders ' if the court concerned is satisfied that there has been unlawful discrimination ' (see s 46PO(4)). Accordingly if the claim by the Moskalevs to be appointed to the priority housing list was ancillary only to their claim under the HREOC Act, there was no jurisdiction to make the order following the finding that there was no unlawful discrimination. Since there was no jurisdiction under s 46PO(4) of the HREOC Act, an alternate source of federal jurisdiction other than s 15 of the FMA is necessary to support the order. It is therefore necessary to consider whether the power to make the order lies in any associated jurisdiction of the Court, since the order could only be justified if a separate and different cause of action had been raised which the Court could deal with pursuant to s 18 of the FMA.


case_title: EFG Australia Ltd v Kennedy (unreported, NSESC, Bryson J, 2 August 1995)

case_text: Finally, I accept the submissions of Mr O'Brien for the applicant that, given what appear to be the deliberate actions of the first, second and third respondents in selling counterfeit GHD products as well as genuine GHD products, and the active concealment of that conduct as alleged by the applicant, there is a real possibility that the respondents will destroy the incriminating products and documents if the order is not made: EFG Australia Ltd v Kennedy (unreported, NSWSC, Bryson J, 2 August 1995). 11 Accordingly, I am prepared to make the search order in the terms sought by the applicant in the claim for interim relief as set out in the application, subject to the provision of a properly executed undertaking by Mr Wetzig, solicitor for the applicant, and the filing with the Court of undertakings by independent solicitors in New South Wales. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 20 March 2007 Counsel for the Applicant: D O'Brien Solicitor for the Applicant: Fox Lawyers Solicitor for the Respondents: The First, Second, Third, and Fourth Respondents did not appear Date of Hearing: 9 March 2007 Date of Judgment: 9 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/347.html


case_text: To the extent that it is relevant, I am satisfied that no substantial injustice has been or is likely to be caused to any person by the making of the orders that I propose. I have been referred to the decision of Lindgren J in Re Insurance Australia Group Limited [2003] FCA 581 , concerning ss 723(3) and 724 (1) of the Corporations Act and the possible application of s 1322(4)(d) to failure to comply with those provisions. I have no reservations at all concerning the correctness of his Honour's decision. However, there is a difference between s 625 on the one hand, and s 723 on the other. 12 Section 723 provides that, where there is failure to apply for admission of securities pursuant to a public offering, the issue or transferring of securities in response to an application made under a relevant disclosure document is void, and the person offering the securities must return the money. That is to say, the Act itself operates in the event of failure to make the relevant application to strike down and invalidate a transfer. In the present circumstances, there is a term of a contractual arrangement between private parties that is the source of difficulty. I am satisfied, however, that s 1325A confers an appropriate power on the Court, whether or not ss 1322 or 1325D does so. 13 In the circumstances I propose to make an order that the Statutory Offer Condition be varied by substituting the words " no later than 19 February 2007 " for the words " within a period of seven days after the start of the offer period " and to order that the Statutory Offer Condition of each contract made by acceptance of the offers be deemed to have been satisfied on 19 February 2007. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 22 March 2007 Counsel for the Applicant: A S Bell SC Solicitor for the Applicant: Mallesons Stephen Jaques Date of Hearing: 5 March 2007 Date of Judgment: 5 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/421.html


case_text: The plaintiffs' case is that: (a) the defendants were directors within the meaning of the Law or the Act of Chick Vic when it incurred a substantial number of unsecured debts to them (totalling $2,116,464.20) that remain unpaid; (b) Chick Vic was insolvent at the time it incurred those debts or became insolvent as a result of incurring those debts; (c) at the time those debts were incurred, there were reasonable grounds for suspecting that Chick Vic was insolvent or, as a result of incurring those debts, would become insolvent; (d) at the time those debts were incurred, the defendants were, or a reasonable person in a like position in a company in Chick Vic's position would have been, aware that there were the grounds referred to in par (c); and (e) as a result, the defendants ought to compensate them for Chick Vic's failure to pay the debts referred to in par (a). That case is pleaded in a statement of claim that was first filed on 6 September 2001. It was amended from time to time. Notwithstanding its age, it was heavily amended only a week before the trial commenced: see Tru Floor Service Pty Ltd v Jenkins [2006] FCA 119. I will call the current amended pleading "the statement of claim". 11 At the conclusion of the plaintiffs' case counsel for the defendants submitted that there was no case for them to answer. Argument then ensued as to whether the defendants were disabled from making a no case submission by reason of having tendered exhibits during cross-examination of the plaintiffs' witnesses. 12 The defendants relied on O 32 r 4(4) of the Rules of Court for the proposition that a party who has tendered documents in evidence may not make a no case submission. Subrule (1) empowers the Court to give directions as to the "order of evidence and addresses and generally as to the conduct of the trial". Subrule (2) deals with "the order of evidence and addresses ... as provided by the following sub-rules of this rule", namely sub-rs (3) to (6). Subrule (3) provides that the party to begin may make an address opening his case and may then adduce evidence. Subrule (4) provides: "Where, at the conclusion of the evidence for the party to begin, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence." If the opposite party does not adduce evidence, the party to begin may make a closing address and the opposite party then makes its address: sub-r (5). If the opposite party adduces evidence, that party may make an opening address before adducing evidence, and after the conclusion of that evidence may make a closing address, whereupon the party to begin may make a closing address: sub-r (6).


case_title: Weller v O'Brien [1962] 1 WLR 885

case_text: Subrule (4) does not expressly provide for the case where, at the conclusion of the plaintiff's evidence, the defendant has tendered a document or thing in evidence. Subrules (5) and (6) deal only with cases that fall within sub-r (4). In that situation the gap is to be filled pursuant to sub-r (1): the Court gives directions as to the order of evidence and addresses. Likely directions will be to the effect of those contained in r 49.01(6)(b) of the Rules of the Supreme Court of Victoria. Rule 49.01(1) corresponds with this Court's O 32 r 4(1). Rule 49.01(3) is to substantially the same effect as O 32 r 4(2). Rule 49.01(4) corresponds with O 32 r 4(3). Rule 49.01(5) is to substantially the same effect as O 32 rs 4(4) to (6). What is not expressly dealt with in O 32 r 4(4) is covered by r 49.01(6): "When, in the course of the case for the party who begins, any document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case (a) the opposite party adduces evidence, the order of proceedings shall be as provided by paragraph (5)(a); (b) the opposite party does not adduce evidence, he may make an address and then the party who began may make a closing address." The "order of proceedings" referred to in r 49.01(6)(a) is that the opposite party makes an opening address, and after adducing evidence makes a closing address, and then the party who began makes a closing address. Subrule (6)(b) states the effect of Weller v O'Brien [1962] 1 WLR 885, which held that a defendant who elects to call no evidence loses the right of last address if he has put a document in evidence in the course of cross-examining on the plaintiff's case. 14 Weller was displaced in England and Wales by O 35 r 7(3) of the Rules of the Supreme Court (RSC), introduced in 1967. It read: "If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case." In lieu of giving a direction under O 32 r 4(1) along the lines of the Supreme Court of Victoria's r 49.01(6)(b), this Court could give a direction along the lines of RSC O 35 r 7(3). Which course it chooses to follow would depend on how it viewed Weller . 15 I do not think O 32 r 4(4) has any bearing on a no case submission. As indicated, subrules (2) to (4) are concerned with the order of evidence and addresses. Subrule (4) does not itself deal with a defendant who has tendered a document or thing in the course of cross-examining the plaintiff's witnesses, and who does not adduce further evidence. However, that gap is to be filled by directions as to the order of evidence and addresses: for example, that the defendant does not have the right of last address enjoyed by a defendant who has not so tendered a document or thing and who does not adduce evidence, or alternatively, that he does have that right.


case_outcome: followed

case_text: That O 32 r 4(4) does not operate in the manner suggested by the plaintiffs is supported by what the Full Court said in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 144 ALR 497 at 503: "Apart from O 32, r 4(4) of the Federal Court Rules which gives a general discretion to the court to regulate the conduct of the trial, there is no statutory provision or Rule of Court which provides for the procedure to be adopted in the Federal Court in a civil case where a ruling of no case to answer is sought." Further, what is said in Rasomen at 505 cannot stand with what the plaintiffs seek to derive from sub-r (4). Similarly, in a passage concerned solely with no case submissions in this Court, the sixth Australian edition of Cross on Evidence renders (at 297) the presently relevant effect of Rasomen and Protean (Holdings) Ltd (rec and mgr apptd) v American Home Assurance Co [1985] VR 187 at 237 (Full Court), namely that there is no general rule that requires a party making a no case submission to elect to call no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination, without any reference to sub-r (4). 17 The defendants' counsel then developed his no case submission, without then being required to elect. The plaintiffs' counsel responded. I then reserved my decision on the no case submission and on whether the defendants should be required to elect not to call further evidence. This course was followed in reliance on Protean at 237-240, Rasomen at 498-499 and Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6-9. In those cases approval was given to the approach to a no case submission described by Tadgell J in Protean at 237: "[The Judge] might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so...." (His Honour had earlier indicated that the expression "moving party" meant the defendant making the no case submission and "respondent party" meant the plaintiff responding to the submission.) Young CJ expressed a similar view at 215 and Fullagar J agreed with what Tadgell J had said. 19 The general rule is that a decision will not be given on a submission of no case unless the moving party elects to call no evidence. However, the judge has a discretion to depart from the general rule where the particular circumstances require it. It has been said that in deciding which course to follow, the judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of the requirement that the moving party make an election before the judge entertains the submission or rules on it will depend on the just and convenient disposition of the litigation. See Protean at 238 and Rasomen at 504. 20 In William H Muller & Co's Algemeene etc v Ebbw Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 at 1365-1366 Branson J said: "It seems to me that it must be a matter for the judge who is to try the case to decide for himself whether, in the particular case before him, and having regard to all the circumstances of it, it is likely to save the litigants before him expense and time and trouble to deal with the case by way of ruling upon the submission without putting any terms upon counsel upon either side, or whether it is better to say: 'In this case I think it would be desirable that before I rule I should hear the whole of the evidence." This passage has been referred to or quoted with approval in many cases. See, for example, Protean at 238, Rasomen at 504, J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 at 461-462 and Union Bank of Australia Ltd v Puddy [1949] VLR 242. In Puddy at 245-246, after reviewing the earlier decisions on the circumstances in which, in the exercise of the discretion, it is appropriate to depart from the general rule requiring an election, Fullagar J said: "I would add only two observations of my own. In the first place ... something may turn on the nature of the case itself. ... [W]here, as in the case before me, fraud is alleged, it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. In the second place, it would seem that the exercise of the discretion must generally involve an estimating of probabilities. If I accede to the application made to me, I may save the parties a great deal of time and expense, or I may cause them much greater expense and delay in the event of a new trial being ordered. In order to assess these probabilities, it seems to me that it must generally be necessary to form some preliminary estimate of the evidence before ruling as to whether the submission is to be entertained without election. In the present case I felt no doubt that I ought to entertain and rule on the submission without requiring the plaintiff to elect to call no evidence. I felt clearly of opinion that the balance of convenience was heavily in favour of this course. The case for the defendant, consisting of the opening and examination in chief, with very little cross-examination, had lasted over three and a half days. Then, coming to determine the application on its merits, I have felt satisfied that there was no case for the plaintiff to answer on defence or counterclaim." Other cases which show that the discretion to depart from the general rule requiring an election is more readily exercised where fraud is alleged are Protean at 215 and 236 and Merry at 7. 21 In Sampson v Edwards [1949] VLR 6 Lowe J said: "The plaintiffs' case has been closed with the exception of his evidence as to damages which, by consent, is standing over until the issue of liability is determined. ... The substance of the matter argued before me is whether I should allow [counsel] to make that [no case] submission without putting him to his election as to whether he will call evidence or not on the issue of liability. In my opinion, I have a discretion as to whether or not to adopt that course, and I think that two of the factors, at any rate, which should operate with the Court in exercising that discretion are the saving of expense by hearing the application and the saving of time. They may not be, and probably are not, the only considerations, but those are two and I think both are present in this case. This action has now been going for the best part of four days and I have heard the evidence only of the plaintiffs and their witnesses and that only on the issue of liability. The particulars with regard to damages which were given this morning are such as to indicate that the plaintiffs' case before it is concluded will take some further considerable time, and on both those aspects of liability and of damage the defendants would have the opportunity to call evidence, and there has been an indication in cross-examination that if the case goes to its full conclusion evidence will be called by the defendants on both those aspects. Now with those matters in my mind it seems to me that convenience does point to my adopting the course which was adopted in Hannah v Stott [1928] VLR 168, and which I think has been adopted since then in many other cases. Those cases, and this case it is to be noted, are cases in which the Judge is sitting without a jury, and while jury cases stand on a somewhat different footing, even in those cases the Court has recognised ... that where there may be an unnecessary loss of time and money, it may be proper for a Judge to hear, at the close of the plaintiff's case, an application for judgment for the defendant. ... I only propose to add that I think the question of putting a defendant to his election is one which arises for the protection of the Court and is not, I think, a right which is given by law to the opposing party." The propriety of this last observation is confirmed by Protean at 238 where Tadgell J said: "The imposition of such a requirement [ie to elect] is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election." See also Rasomen at 505. 30 I do not understand the plaintiffs to have submitted that the tendering of exhibits required the defendant to elect not to call further evidence. Rather, the contention was that tendering the exhibits disabled them from making a no case submission. I have dealt with that at [11] to [16]. In any event, had such a submission been made, I would have rejected it. There is no general rule that requires a party making a no case submission to elect to adduce no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination. In a particular case, the fact that the party has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion whether to require an election. See Protean at 237 and Rasomen at 505. 39 This approach has been approved in many cases. See, for example, Rasomen at 508-509, Merry at 8 and Sarkis v Deputy Commissioner of Taxation [2005] VSCA 67 at [14] .