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. 18 In Protean the trial judge had not adopted the course I have described at [17]. Rather he had indicated that he would both entertain the no case submission and rule on it without requiring an election to be made by the moving party. While Tadgell J did not think this an incorrect approach, his Honour clearly considered preferable that described at [17]. At 238-239 he said: "In deciding whether or not the general rule [requiring an election] should be followed the Judge will sometimes be assisted to know the basis on which the moving party seeks to rest his submission of no case. To that end the Judge might find it useful to allow the submission to be made and answered without first requiring an election to be made, before deciding whether he will rule on it, ie to take the second course summarized above .... When that course is followed the Judge will know, before he commits himself to rule, whether the no case submission is (a) that there is no evidence at all in support of the respondent party's case, ie accepting all the evidence at face value, no case has been established in law ..., or (b) that, although there is some evidence in support of the respondent party's case, the Judge should not act on it because, for example, it is so unsatisfactory or inherently unreliable or equivocal that he should find that the burden of proof resting on the respondent party has not been discharged ..., or (c) a combination of (a) and (b)." See also per Young CJ at 215. 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. 23 In exercising his discretion not to require the defendant to elect, the trial judge in Protean at 192-193 relied heavily on the time the case had already lasted, and the time that might be saved by hearing the no case submission. In the Full Court Fullagar J (junior) said at 236 that no criticism could be levelled at the trial judge's exercise of discretion "in the light of the allegations of gross fraud, in the light of the reasons for judgment of Fullagar J [(senior)] in ... Puddy, and in the light of established authorities relating to appeals from the exercise of a discretion". 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. 32 Contravention of s 588G(3) is an offence, one element of which is that the director's failure to prevent the company incurring the debt was dishonest. I have referred to the cases drawing attention to the position where fraud is alleged. The "gross fraud" referred to by Fullagar J (junior) in Protean was in fact arson it was alleged that the insured had lit or connived at lighting the fire. In my view the words of Fullagar J (senior) in Puddy are apposite here it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component. 36 In Protean the owner of premises which were damaged by fire sued its insurer for indemnity. The insurer raised defences that the insured had lit or connived at lighting the fire and had falsely represented, and failed to disclose, to the insurer material facts. The trial judge allowed the insured to split its case. The insured adduced evidence on matters on which it had the onus of proof, but elected to call no evidence in relation to the defences until all the evidence for the insurer on the defences had been called. The insurer then went into evidence on its defences. At the close of the insurer's case the judge allowed the insured to submit that it had no case to answer in respect of the defences without being put to its election whether or not to call evidence in relation to the defences. The insured's submission was upheld, and being of opinion that the insured had made out its case for indemnity, the judge entered judgment for it. 37 On appeal it was contended by the appellant that, in deciding the no case submission, the trial judge "embarked upon the wrong exercise". It was said his Honour had proceeded as if his function was to reach a final judgment on the facts, with inferences drawn and applied, as if he were deciding at the end of the whole case. His proper function, it was contended, was to decide whether the evidence before him (treating it in the most favourable way to the defendant) permitted the inferences to be drawn in favour of the affirmative defences, and not to decide whether to draw those inferences. An alternative argument was that the evidence revealed a prima facie case in respect of each of the defences, sufficient to require an answer by the insured. 38 All members of the Full Court rejected those contentions. Tadgell J, with whom Fullagar J agreed, distinguished (at 239) between a case where the no case submission is that there is no evidence at all in support of the respondent party's case and one where it is that, although there is some evidence to support it, the judge should not act on it because, for example, it is so unsatisfactory or inherently unreliable or equivocal that he should find that the burden of proof resting on the respondent party has not been discharged. His Honour went on (at 239): "If a judge sitting alone receives a submission of the second kind and decides to rule on it, whether the moving party is put to or makes his election or not, he must be entitled in doing so to assess the quality of the evidence. Were it otherwise the Judge, being the tribunal of fact, would be placed in an impossible position: he would have to assess the validity of the case for the respondent party without being able to assess the worth or weight of the evidence led in support of it. It has been said that 'when there is no jury, the proposition 'no case to answer' may obviously mean far more than, 'is there evidence on which a jury could find for the plaintiff?' It merely means, would you, the Judge, on the evidence given, find for the plaintiff?'" See also per Young CJ at 215.


case_outcome: followed

case_text: 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. 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. 28 The considerations that led Finkelstein J in Merry not to require the respondents to elect can usefully be noted. The first was the nature of the allegations made against them. It was alleged that they were involved in a scam to defraud Compaq. The cause of action that they procured a breach of trust required proof of dishonesty. His Honour said that the respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing had not been established against them. The second factor related to the efficient disposition of the case. The respondents' evidence would have taken well over a week. The considerable expense thus involved suggested that the respondents should not be required to go into evidence before the merits of the applicant's case had been ruled upon. The final factor was the Judge's impression that the applicant's case had weaknesses. His Honour's conclusion was that both the interests of justice and the efficient disposition of the case indicated that the respondents should not be put to their election. 29 All three factors relied upon in Merry exist in the present case: an offence of dishonesty, the saving of court time and expense, and the perceived weakness of the plaintiffs' case on insolvency. 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] .


case_outcome: cited

case_text: 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.


case_title: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458


case_text: 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. 22 Sampson and Puddy were referred to with approval by Mason and Jacobs JJ (with whom Barwick CJ agreed) in Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at 203. Stephen J dissented in the result, but agreed with what Mason and Jacobs JJ said about election. 32 Contravention of s 588G(3) is an offence, one element of which is that the director's failure to prevent the company incurring the debt was dishonest. I have referred to the cases drawing attention to the position where fraud is alleged. The "gross fraud" referred to by Fullagar J (junior) in Protean was in fact arson it was alleged that the insured had lit or connived at lighting the fire. In my view the words of Fullagar J (senior) in Puddy are apposite here it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component. 33 In the present case the plaintiffs' case took two weeks. The parties have thus already been put to great expense, both in terms of time and money. It is clear from what has thus far transpired that the defendants' case would have lasted at least the remaining week allocated to the proceeding. Mr Jenkins' affidavit evidence alone (including exhibits) occupies 982 pages of the Court Book. His evidence touches all aspects of the case: solvency, his awareness of the company's ability to pay its debts, and the quantum of the debts. I would be surprised if he were cross-examined for less than three days. Having regard to the cross-examination of the plaintiffs' experts, I would expect the defendants' expert, Mr Stout, to be cross-examined for at least a day. In those circumstances, as was the case in Sampson and Puddy , there may be a considerable saving in time and expense to the parties if the application is heard.


case_title: Sampson v Edwards [1949] VLR 6

case_text: 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. 33 In the present case the plaintiffs' case took two weeks. The parties have thus already been put to great expense, both in terms of time and money. It is clear from what has thus far transpired that the defendants' case would have lasted at least the remaining week allocated to the proceeding. Mr Jenkins' affidavit evidence alone (including exhibits) occupies 982 pages of the Court Book. His evidence touches all aspects of the case: solvency, his awareness of the company's ability to pay its debts, and the quantum of the debts. I would be surprised if he were cross-examined for less than three days. Having regard to the cross-examination of the plaintiffs' experts, I would expect the defendants' expert, Mr Stout, to be cross-examined for at least a day. In those circumstances, as was the case in Sampson and Puddy , there may be a considerable saving in time and expense to the parties if the application is heard.


case_text: Sampson and Puddy were referred to with approval by Mason and Jacobs JJ (with whom Barwick CJ agreed) in Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at 203. Stephen J dissented in the result, but agreed with what Mason and Jacobs JJ said about election.


case_text: 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] .


case_text: It is beyond doubt that s 95A mandates a "cash flow" rather than "balance sheet" approach to determining solvency. Therefore, an excess of current liabilities over current assets is not conclusive of a company's insolvency and "cannot be more than a rule of thumb" as to the same: Quick v Stoland Pty Ltd (1998) 157 ALR 615 at 623 per Emmett J. Further, "[a] temporary lack of liquidity must be distinguished from an endemic shortage of working capital whereby liquidity can only be restored by a successful outcome of business ventures in which the existing working capital has been deployed": Hymix Concrete Pty Ltd v Garrity (1977) 13 ALR 321 at 328 per Jacobs J. Finally, a failure to pay a debt is not, without anything else, conclusive of insolvency. For example, as Jacobs J pointed out in Hymix Concrete at 328, such a failure: "could be explained by a desire on the part of the company to extend its effective working capital at no cost to itself by obtaining as long terms of credit as its creditors would tolerate, a business manoeuvre not necessarily related to an inability to pay." (This observation needs to be read subject to the matters canvassed at [45] to [48].) 67 Mr Lamb's opinion in paragraph 18 that Chick Vic could not, as at the starting point, pay all its debts as and when they became due and payable is largely based on the matters canvassed in paragraphs 13 and 17. However, those matters cannot alone be the basis of a finding that Chick Vic was insolvent at the starting point. The trading loss and the net asset deficiency figures are balance sheet rather than cash flow measures of Chick Vic's position. As to the working capital deficiency figure, I refer to what I cited at [43] from Quick . Further, Mr Lamb has admitted that the work on hand figure is incorrect. In cross-examination, a work on hand figure of approximately $8,000,000.00 was put to him. However, notwithstanding his concession of error, the incorrect figure must be taken to have remained a basis for the opinion expressed in his report. 68 Under this heading I deal not only with Mr Lamb's evidence about the deliberate withholding of cheques but with a point that can be made about the plaintiffs' case generally. Chick Vic may have suffered from a substantial, though variable, working capital deficiency at the starting point and throughout the duration. But, on the other hand, Chick Vic did not in that period exhibit some of the classic characteristics of insolvent companies. I was taken to only one instance where a cheque it drew was dishonoured upon presentation. There is no evidence as to why the cheque was dishonoured. According to its book-keeper, it only exceeded its overdraft limit once and that was due to an oversight on her part. Its books were properly kept and they did not need to be reconstructed when it went into administration. Indeed, the administrator was able to account for all moneys. The staff's salaries, superannuation and other entitlements were paid on time. Taxes and charges (including workers' compensation premiums) were paid on time. There was no evidence that it frequently changed suppliers or was subjected to the indignity of only being able to procure supplies on a cash on delivery basis. Of course, it is by no means necessary or sufficient that a company display some or all of these characteristics before it can be found to have been insolvent. However, for a Court to be able to find as a fact that a company was insolvent in that it was not able to pay its debts as and when they became due and payable it must normally have some evidence apart from the company's accounts. 69 The plaintiffs have recognised the need for such evidence. Though it is not the only such evidence, the plaintiffs make much of a purported practice by Chick Vic of holding cheques "in the drawer". That is, they say that Chick Vic habitually drew cheques in favour of creditors thus reducing the relevant creditor's balance in its books and then retained those cheques until a point in time at which it could be confident that their presentation would not cause Chick Vic to exceed its overdraft limit. If it were proved that such a practice existed, it would be powerful evidence that Chick Vic was insolvent and not just because it would help explain why Chick Vic did not display some of the characteristics to which I referred earlier. 89 In any case, the argument over whether or not provisions should have been made is one that goes to the reliability of Chick Vic's accounts and illustrates the point made by Emmett J in Quick (see [43]). 90 As to the overdraft (see [85](c)), the following exchange took place: "And in the ordinary way of overdrafts, although it is expressed as being operative for a 12 month period, you know, don't you, from your business experience, that so long as the company was continuing to trade the overdraft would, as a matter of course, be rolled over?---Yes. Yes. You have a review, you have got to put in your financials as often as not, but as long as you are continuing to trade the overdraft will roll over. Now, let me suggest to you again, as I did before we turned to that document, that from the point of view of considering the solvency of a company as distinct from writing a balance sheet for it, it is quite it was quite wrong for you to take into account the outstanding bank overdraft limit?---I don't agree with that. Tell us the date on which the money due to the National Australia Bank by this company under its overdraft facility agreement was due and payable?---Well, it could be due and payable in 12 months. But the point of my assessment is that it is on the basis of the total current assets and the total current liabilities. You assumed, in forming your opinion that this company as you did, that this company was insolvent on 30 April 1999, that is what you did?---Yes. And you formed the view that it was insolvent on 30 June 1999?---Yes. And on 30 June 2000?---Yes. In forming each of those opinions you took into account the proposition that this company owed, was obliged to pay on that day, $1 or $1.5 million to the National Bank didn't you?---I took into account the existence of the debt in measuring the position of the company. When in fact, as you know, that money was not in fact due and payable on any of those dates or any other date in between was it?---Well, you have to measure the total position of the company, you can't just delete one liability and compare what is left. But it is not due, Mr Lamb. Let us say this company had borrowed this money not on overdraft but on a fixed 20 year mortgage with capitalised interest so that there were no interest payments payable year by year and the money wasn't repayable for 20 years. Would you take that into account in determining the question of solvency of this company in let us say 30 June 2000?---No, because it wouldn't be a current liability. So it is the difference between being a current liability and a non current liability that plays in your mind is it?---Yes. So if it might become due sometime in the next 12 months then you think it should be taken into account on the question of solvency?---Yes. If it might become due sometime in the next 12 months you proceed upon the assumption that it is due on the day you are considering solvency?---No, it is a matter to be considered no, it is considered the current assets and the current liabilities are measured to form your view about solvency." Again, that exchange illustrates the point made by Emmett J in Quick (see [43]). Much the same can be said of the point about Chick Vic's hire-purchase contracts and leases (see [85](d)) and depreciation (see [85](e)). Mr Lamb's position in respect of the hire-purchase contracts and leases was similar to that in respect of the overdraft. By contrast, he conceded that depreciation was irrelevant to his determination that Chick Vic was insolvent at the starting point and throughout the duration. Despite the limited nature of the concession, I accept as sound the propositions put by Mr Gunst to Mr Lamb in respect of the overdraft, hire-purchase contracts, leases and depreciation. Mr Lamb's answers to Mr Gunst's questions on all those issues of which the passage set out above is but one example showed that, though he purported to espouse the (correct) view that insolvency could not simply be divined from a company's accounts, he proceeded most likely unconsciously on the basis that Chick Vic's continuing working capital deficiency showed that it was insolvent at the starting point and through to 31 January 2000. It may be that Mr Lamb's treatment of those issues was correct from an accounting point of view. But that is not the basis upon which I must approach them. 91 Finally, the fact that statutory accounts are prepared on a going concern rather than liquidation basis is of scant probative value in determining whether the company that is the subject of those accounts was insolvent at the time they were prepared. 92 Mr Lamb's evidence cannot, on its own, support a finding that Chick Vic was insolvent in any of the periods. I have already explained: • that it cannot support a finding that Chick Vic had a practice of deliberately withholding cheques until they could be safely presented (see [73]); • why paragraph 35 of the report should be put aside (see [75]); and • the (incorrect) approach Mr Lamb took in determining that Chick Vic was insolvent at the starting point and through to 31 January 2000 (see [90]).


case_text: It is beyond doubt that s 95A mandates a "cash flow" rather than "balance sheet" approach to determining solvency. Therefore, an excess of current liabilities over current assets is not conclusive of a company's insolvency and "cannot be more than a rule of thumb" as to the same: Quick v Stoland Pty Ltd (1998) 157 ALR 615 at 623 per Emmett J. Further, "[a] temporary lack of liquidity must be distinguished from an endemic shortage of working capital whereby liquidity can only be restored by a successful outcome of business ventures in which the existing working capital has been deployed": Hymix Concrete Pty Ltd v Garrity (1977) 13 ALR 321 at 328 per Jacobs J. Finally, a failure to pay a debt is not, without anything else, conclusive of insolvency. For example, as Jacobs J pointed out in Hymix Concrete at 328, such a failure: "could be explained by a desire on the part of the company to extend its effective working capital at no cost to itself by obtaining as long terms of credit as its creditors would tolerate, a business manoeuvre not necessarily related to an inability to pay." (This observation needs to be read subject to the matters canvassed at [45] to [48].)


case_title: Lewis v Doran (2005) 219 ALR 555

case_text: In Lewis v Doran (2005) 219 ALR 555 at [79], Giles JA (with whom Hodgson JA and McColl JA agreed) quoted with apparent approval the following passage from the reasons of the primary judge (Palmer J): "I think that I must approach the application of s 95A of the [Act] with two considerations in mind. First the words of s 95A must be construed as they stand, without addition or subtraction. Second, the law both before and after the enactment of s 95A is unequivocally and emphatically clear that insolvency is, first and last, a question of fact 'to be ascertained from a consideration of the company's financial position taken as a whole. In considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realizations are achievable': Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation [2001] NSWSC 621 ; (2001) 53 NSWLR 213 at 224." (The emphasis is mine.) I agree "that insolvency is, first and last, a question of fact". Giles JA went on to say at [103]: "Solvency or insolvency is a state on which directors and others act in current conduct, for example if the issue is trading while insolvent. Section 95A speaks of objective ability to pay debts as and when they become due and payable, but ability must be determined in the circumstances as they were known or ought to have been known at the relevant time, without intrusion of hindsight." It must also be borne in mind that the plain words of s 95A ("as and when they become") require anticipated debts to be taken, to some extent, into account in determining solvency.


case_text: Notoriously, there is an apparent conflict in the authorities as to whether, and to what extent, a court should take into account creditors' forbearance in pursuing (by whatever means) the payment of debts that, according to the terms of the relevant agreement, are due and payable. That is, if a debtor is entitled to, say, 45 days' credit, when is that debt due and payable in a s 95A sense ? At the end of the 45 days? Or at the end of some longer period which the creditor has, customarily, tolerated as opposed to one supported by, say, an estoppel or a variation of the relevant agreement? Before reviewing some of the authorities said to be in conflict, I note the following passage from Re New World Alliance Pty Ltd (rec and mgr apptd); Sycotex Pty Ltd v Baseler (1994) 51 FCR 425 at 434 per Gummow J: "Any conflict between the authorities may be more illusory than real and factual rather than legal. I would not consider such an issue to be a question of law to be decided by the application of a rigid rule. Rather, the statute appears to focus attention upon what it is reasonable to expect in a given set of circumstances, such a consideration being made by someone operating in a practical business environment. Attention is focused at whether a person would expect that at some point the company would be unable to meet a liability. Such a question is necessarily a factual one to be decided in light of all the circumstances in the case. At one end of the spectrum a company may be operating in an industry where a code of practice of paying 60 days after invoicing has arisen, despite stated terms of 30 days. If the company has a large number of creditors, it may be reasonable to expect that all of them would not suddenly insist on being paid in 30 days. At the other end of the spectrum would be a case where a single creditor had granted an indulgence on one occasion. It may well not be reasonable to expect a repetition of that event."


case_text: The 'strict' approach can be found in Carrier Air Conditioning Pty Ltd v Kurda (1993) 11 ACSR 247 (Full Court of the Supreme Court of South Australia) at 254-255 per Debelle J: "[T]he inquiry required by [the relevant section] is concerned with the obligations of the company as to the payment of its debts, not with periods of grace which might have been obtained by creditors not insisting on payment strictly in accordance with agreed terms. A reasonable and prudent company director would assess whether a company is in a position to pay its debts as and when they fall due by reference to the legal obligations of the company not by reference to any indulgences which the company might have received from its creditors. He would have regard to the fact that the credit policy of any particular creditor might suddenly change and require any outstanding debts to be paid forthwith. The possibility of such a change could result from any one of a number of factors including the fact that the creditor is itself experiencing financial stringency or, as the circumstances of this case illustrate, a change in management. A reasonable and prudent director must found his expectations on reasonable grounds. An expectation that creditors will continue to permit late payment of accounts is founded on hope and optimism, not on reason. It is a policy fraught with danger and would only be adopted if the company was experiencing a temporary lack of liquidity. A reasonable and prudent director would acknowledge that, while his company might have enjoyed periods of grace in the payment of its debts, there could be no reasonable expectation that that situation would continue. Apart from these considerations, he would recognize that the very fact that the ability of a company to continue to trade depends on indulgences from its creditors points to the conclusion that it is unable to pay its debts as and when they fall due. In other words, a reasonable and prudent director will, generally speaking, be directing his attention to whether the company will be able to pay its debts on the date stipulated for payment." Cox J and Duggan J agreed with Debelle J that the appeal should be dismissed, but did not feel it necessary to express a view on the issue canvassed by his Honour in the passage quoted above. (See also Powell v Fryer [2000] SASC 97 at [32] - [33] per Prior J.) Similarly, Owen J (with whom Franklyn J and Murray J concurred) said in Lee Kong v Pilkington (Australia) Ltd (1997) 25 ACSR 103 at 112: "whether or not a 'debt' is 'due' is to be determined by reference to the legally binding agreement between the parties. Any reluctance by creditors to enforce legal rights was not relevant to the approach under the relevant section. ... The question is whether or not a particular debt has fallen 'due'. The commercial likelihood of enforcement of the company's debts cannot override the substance of what is involved in the determination of that question." For reasons that will become apparent, the plaintiffs urge the Court to adopt the 'strict' approach.


case_title: Powell v Fryer [2000] SASC 97


case_title: Lee Kong v Pilkington (Australia) Ltd (1997) 25 ACSR 103


case_text: In Lewis v Doran (2005) 219 ALR 555 at [79], Giles JA (with whom Hodgson JA and McColl JA agreed) quoted with apparent approval the following passage from the reasons of the primary judge (Palmer J): "I think that I must approach the application of s 95A of the [Act] with two considerations in mind. First the words of s 95A must be construed as they stand, without addition or subtraction. Second, the law both before and after the enactment of s 95A is unequivocally and emphatically clear that insolvency is, first and last, a question of fact 'to be ascertained from a consideration of the company's financial position taken as a whole. In considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realizations are achievable': Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation [2001] NSWSC 621 ; (2001) 53 NSWLR 213 at 224." (The emphasis is mine.) I agree "that insolvency is, first and last, a question of fact". Giles JA went on to say at [103]: "Solvency or insolvency is a state on which directors and others act in current conduct, for example if the issue is trading while insolvent. Section 95A speaks of objective ability to pay debts as and when they become due and payable, but ability must be determined in the circumstances as they were known or ought to have been known at the relevant time, without intrusion of hindsight." It must also be borne in mind that the plain words of s 95A ("as and when they become") require anticipated debts to be taken, to some extent, into account in determining solvency. 47 In Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation [2001] NSWSC 621 ; (2001) 53 NSWLR 213, Palmer J reviewed at length the authorities on determining solvency. His distillation thereof (at [54]) bears repeating: "[T]he following propositions may now be drawn from the authorities: (i) whether or not a company is insolvent for the purposes of the Corporations Act (Cth), ss 95A , 459B , 588FC or 588G (1)(b), is a question of fact to be ascertained from a consideration of the company's financial position taken as a whole ...; (ii) in considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realisations are achievable ...; (iii) in assessing whether a company's position as a whole reveals surmountable temporary illiquidity or insurmountable endemic illiquidity resulting in insolvency, it is proper to have regard to the commercial reality that, in normal circumstances, creditors will not always insist on payment strictly in accordance with their terms of trade but that does not result in the company thereby having a cash or credit resource which can be taken into account in determining solvency ...; (iv) the commercial reality that creditors will normally allow some latitude in time for payment of their debts does not, in itself, warrant a conclusion that the debts are not payable at the times contractually stipulated and have become debts payable only upon demand ...; (v) in assessing solvency, the Court acts upon the basis that a contract debt is payable at the time stipulated for payment in the contract unless there is evidence, proving to the Court's satisfaction, that: • there has been an express or implied agreement between the company and the creditor for an extension of time stipulated for payment; or • there is a course of conduct between the company and the creditor sufficient to give rise to an estoppel preventing the creditor from relying upon the stipulated time for payment; or • there has been a well established and recognised course of conduct in the industry in which the company operates, or as between the company and its creditors as a body, whereby debts are payable at a time other than that stipulated in the creditors' terms of trade or are payable only on demand ...; [and] (vi) it is for the party asserting that a company's contract debts are not payable at the times contractually stipulated to make good that assertion by satisfactory evidence ...." (I have omitted the numerous citations.)


case_text: In Iso Lilodw' Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation [2002] NSWSC 644 , Davies AJ, though he accepted Palmer J's first, second and third propositions, said at [14]: "I do not cite principles (iv), (v) and (vi) as enunciated by his Honour ... as I consider that, as enunciated, the principles may imply a legality or inflexibility which is inconsistent with the point that the ultimate issue is a question of fact." In White Constructions (ACT) Pty Ltd (in liq) v White (2004) 49 ACSR 220, McDougall J said at [291]-[293]: "I do not think that Palmer J, in the fourth, fifth and sixth propositions that he stated, was seeking to lay down exhaustively the circumstances in which indulgences that creditors may allow will be taken into account, or the manner in which such indulgences will be taken into account. It is certainly possible to read the fifth proposition as being expressed in prescriptive terms; but even there, I think, his Honour was stating, in effect, the basis upon which the courts have generally assessed the significance of indulgences that were shown to have been granted. If, contrary to my understanding, his Honour were intending, in the fourth, fifth and sixth propositions, to state exhaustively the circumstances in which indulgences will be considered relevant, and the weight that will be attributed to them, then I would share the reservations expressed by Davies AJ. But I do not so read what Palmer J said. Of course, as Palmer J pointed out at NSWLR 220-1; ALR 120-1; ACSR 312-13, the significance of indulgences granted by creditors will vary according to whether the question for consideration is 'actual' insolvency or 'reasonable grounds to suspect' insolvency. The case before his Honour fell into the former category. The case before me, on the pleading, is likewise a case of actual insolvency; as the defendants point out in para 2 of their written submissions 'this is not a case of insolvent trading'."


case_title: White Constructions (ACT) Pty Ltd (in liq) v White (2004) 49 ACSR 220


case_text: Section 140 of the Evidence Act 1995 (Cth) provides that: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged." (The defendants did not dispute that the instant proceeding is "a civil proceeding" within the meaning of s 140: cf Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123 at [357] .) 50 There is some debate as to the extent to which s 140 calls for the application of "the Briginshaw test": see, for example, S Odgers, Uniform Evidence Law (6 th ed, 2004) at [1.4.100]. In Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336, Dixon J said at 361-362: "[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature or consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." (The emphasis is mine.) As noted at [7], the plaintiffs claim that the defendants contravened ss 588G(2) and (3) of the Law or the Act. Section 588G(2) is a civil penalty provision. Section 588G(3) creates an offence requiring proof of dishonesty. I think it appropriate, in deciding whether the case against the defendants has been proved, to, in the words of s 140 , "take into account the nature of the cause of action [and] the gravity of the matters alleged". In doing so, I consider that the correct approach to take is to apply Briginshaw while bearing in mind what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (Their Honours then quoted the passage from Briginshaw that I emphasized earlier.) That was the approach taken to s 588G by Mandie J in Plymin at [367]. As to the "debate" I referred to in the opening sentence of this paragraph, it is also the approach supported by Mr Odgers SC in his text I referred to earlier.


case_outcome: applied

case_text: There is some debate as to the extent to which s 140 calls for the application of "the Briginshaw test": see, for example, S Odgers, Uniform Evidence Law (6 th ed, 2004) at [1.4.100]. In Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336, Dixon J said at 361-362: "[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature or consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." (The emphasis is mine.) As noted at [7], the plaintiffs claim that the defendants contravened ss 588G(2) and (3) of the Law or the Act. Section 588G(2) is a civil penalty provision. Section 588G(3) creates an offence requiring proof of dishonesty. I think it appropriate, in deciding whether the case against the defendants has been proved, to, in the words of s 140 , "take into account the nature of the cause of action [and] the gravity of the matters alleged". In doing so, I consider that the correct approach to take is to apply Briginshaw while bearing in mind what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (Their Honours then quoted the passage from Briginshaw that I emphasized earlier.) That was the approach taken to s 588G by Mandie J in Plymin at [367]. As to the "debate" I referred to in the opening sentence of this paragraph, it is also the approach supported by Mr Odgers SC in his text I referred to earlier.


case_title: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449


case_text: The following exchange took place on the first of the three days on which Mr Lamb was cross-examined: "I am asking you about your position as a registered liquidator and a registered trustee in bankruptcy which you told his Honour this morning you have been since 1983?---That is what I believe. Do you remember Sweeney J of this Court?---Yes. Do you remember the Registrar of Bankruptcy bringing an application before his Honour in May 1984?---Yes. Do you remember being struck off as a registered trustee in bankruptcy on 15 May 1984 because you lacked independence, as his Honour found?---And I appealed and won. And you appealed the first report, your Honour, is volume one of the Federal Court Reports at page 390. And you appealed and the matter was sent back for a retrial. Is that right? The Full Court report is in volume four of the Federal Court Reports at page 269, your Honour. On appeal the matter was sent back for a retrial?---I don't think that is right, is it. The on appeal the earlier decision was turned over. The gist of it was you had been a member of a firm, Scott and Lamb - - -?---Yes. - - - and you had then gone from there to being an employee of Deusbury's?---Yes. And the Registrar of Bankruptcy had brought an application to have your registration cancelled and that is what Sweeney J heard in 1984?---Yes. Because you lacked independence, the independence required of a trustee in bankruptcy because you were an employee, is that right?---Only because I was an employee. Yes and on appeal do you recall Northrop J saying this at page 277, volume four of the Federal Court Reports, your Honour: 'In this case it would appear that the employee and the employer have failed to grasp the real issue of the employee's independence in the performance of acting as a trustee in any estate. They have approached the matter only in the most general manner.' Do you remember his Honour saying that on your appeal?---No. You don't remember that. Right, well, you do remember in general terms that the Registrar of Bankruptcy put you up for striking off and a Judge of this Court made such an order in May 1984, now that I jog your memory, don't you?---I remember that, yes." That line of questioning, which was clearly intended to insinuate that Mr Lamb was "struck off" because of some deficiency in his character and/or competence, was both shabby and sloppy. In Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391 at 399, Sweeney J said: "The status of [Mr Lamb] as an employee is ... fatal to his continued registration as a person qualified to act as a trustee." However, at 400, his Honour said: "Nothing in these reasons is intended in any way to reflect upon the character or competence of the respondent or of his employers." On appeal, in Lamb v Registrar of Bankruptcy (1984) 4 FCR 269 at 277, Smithers ACJ said what Mr Gunst attributed to Northrop J and immediately went on to say that: "However, on the evidence it does not appear that [Mr Lamb] will not have the necessary independence." The Full Court upheld Mr Lamb's appeal and did not order a re-trial only Jenkinson J thought one necessary.


case_title: Lamb v Registrar of Bankruptcy (1984) 4 FCR 269


case_title: Post, Re; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162

case_text: approach taken by the Court to the preliminary issue identified by s 201(b) of the Act was explained by French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166-7 as follows: "The question for the Court ... is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been an irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require a an evaluative judgment at this preliminary stage". Much of the affidavit evidence relied upon by the applicant contained hearsay. Insofar as it dealt with the sending of SMS messages to the mobile phones of members, it suggested that a small number of members had received messages supporting the Bolano team. It is not clear, on the evidence, how, whoever it was who sent the messages, obtained the mobile telephone numbers of the members to whom messages were sent. In the few cases in which the deponent of an affidavit received a message, the deponent said that he or she had provided Mr Bolano or some other person associated with his campaign with his or her telephone number but had not done so for the purpose of receiving campaign material. Some of these deponents were shop stewards at their workplaces and it is understandable that they would have provided Mr Bolano, an organiser, with their telephone numbers to facilitate contact on Union business. What is important, for present purposes, is that there is no evidence that enables me to infer that Mr Bolano or anyone else obtained mobile telephone numbers of members by resort to Union records. The evidence relied on by the applicant supports the allegation that Union meetings were convened at some hospitals using notices on Union letterhead. Those meetings were attended by some Union employees who, although supposedly on leave, were said to be present on Union (as distinct from electoral) business. Those employees used the meetings to encourage members to vote for the Bolano team. Mr Bolano and other employees said to have been involved have not, as yet, denied that such conduct occurred. In fairness to them, it must be said that some of the affidavits on which the applicant relies were not served until late on 4 November 2009.


case_outcome: referred to

case_title: Jarman, Re; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233

case_text: Kirby J said in Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233 at 241, the institution of an inquiry under s 201 is a serious matter. The onus is on an applicant to persuade the Court that there exist reasonable grounds for the application. For the reasons given I am not satisfied that there are reasonable grounds to consider that any irregularity has occurred in relation to the election. I would, therefore, dismiss the application by the applicant for an inquiry. It follows that no interim orders can or should be made in the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 6 November 2009 Counsel for the Applicant: Ms A Duffy Solicitor for the Applicant: Holding Redlich Counsel for Mr M Bolano and Others: Mr M McKillop Solicitor for Mr M Bolano and Others: Earl & Associates Counsel for the Health Services Union: Mr D Langmead Solicitor for the Health Services Union: Slater & Gordon Counsel for Mr D Byron Mr H Borenstein SC Solicitor for Mr D Byron Macpherson + Kelley Counsel for the Administrator (Mr J Vines): Mr S Moore Solicitor for the Administrator (Mr J Vines): Maurice Blackburn Counsel for the Returning Officer: Mr R McClure Solicitor for the Returning Officer: Australian Government Solicitor Date of Hearing: 6 November 2009 Date of Judgment: 6 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1294.html


case_text: a result of the failure of the negotiations I asked Mr De Kerloy to bring a motion for His Honour to disqualify himself and he again declined to act on such a motion. I was then required to engage another solicitor to bring this application. It is correct that, a very long time ago, I was briefed to appear as counsel for, I think, the then Commissioner for Corporate Affairs upon several complaints in the then Perth Court of Petty Sessions against Mr Carey. I am prepared to proceed on the footing that this occurred in or about 1980 as Mr Carey suggests. Mr Carey states that the charges concerned alleged insolvent trading. I will proceed on the basis that Mr Carey is broadly correct in his characterisation of the charges. My recollection, correct or not, is that Mr Carey was convicted on all counts but that these were quashed on appeal. At the commencement of the third day of the trial on 27 March 2008, I made disclosure in the following terms to the parties concerning an investment made by one of my brothers-in-law in a company in the Westpoint Group. HIS HONOUR: But before you call Mr Nairn, I need to inform the parties that during the course of the hearing yesterday something triggered a recollection of mine that one of my brothers-in-law was an investor in a company. I couldn't remember the name of it but I made inquiries last night and it was the company called York Street Mezzanine Pty Ltd, which I think may have something to do with the Westpoint group. MR DE KERLOY: Yes. HIS HONOUR: Now, I don't consider that fact to be an impediment to my hearing this case. However, I felt it important to tell the parties of that fact. MR DE KERLOY: Yes, I would not take any issue with that, sir. Thank you for the disclosure. HIS HONOUR: Very well, thank you, Mr de Kerloy. Mr Slater? MR SLATER. We wouldn't take issue with that. HIS HONOUR: Very well. If you wish to call Mr Nairn, you can do so, Mr de Kerloy. I will proceed on the basis of Mr Carey's assertion that York Street Mezzanine Pty Ltd is indeed a company "associated with the Westpoint Group" and that any person, including my brother-in-law, who invested in York Street Mezzanine Pty Ltd has "lost their money". Lanepoint is concerned that Mr Carey's credibility had become an issue in the case in respect to the accounting treatment of loans recorded as having been made to the Westpoint Income Fund which the respondent contended were erroneous and which had been corrected. The test as to whether there is an apprehension of bias is whether "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": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] ; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] ; Antoun v R [2006] HCA 2 ; (2006) 224 ALR 51 at [1] , [51], [82]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [110] . The application of this principle requires two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Second, 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: Ebner v Official Trustee in Bankruptcy at [8]; Smits v Roach [2006] HCA 36 ; (2006) 227 CLR 423 at [53] , [56]. The insolvent trading prosecution: Counsel for Lanepoint submits that in the course of acting in the prosecution it is to be expected that I would have been exposed to a range of issues or allegations concerning Mr Carey's conduct. This, he says, is an integral part of the process that those seeking to advance a case tell counsel a range of facts some of which will become admissible as evidence and be put before the court and others which may never see the light of day in that context, but nonetheless have the capacity to effect counsel's perception of the defendant.


case_text: was a further motion in a related matter also seeking that I recuse myself. There, the only issue for determination was the question of costs. The motion was, by consent, discontinued on 23 March 2009. I then delivered judgment in the matter: Australian Securities & Investment Commission v Bowesco [2009] FCA 257. History of proceeding The proceedings were instituted in early 2006. The trial of the action took place over three days between 25 and 27 March 2008. Thereafter there were further hearings in respect to the case on the following dates: (i) 11 April 2008; (ii) 11 June 2008; (iii) 8 August 2008; (iv) 3 September 2008; (v) 13 November 2008; (vi) 10 February 2009.


case_title: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577


case_title: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337


case_title: Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488


case_text: a result of the failure of the negotiations I asked Mr De Kerloy to bring a motion for His Honour to disqualify himself and he again declined to act on such a motion. I was then required to engage another solicitor to bring this application. It is correct that, a very long time ago, I was briefed to appear as counsel for, I think, the then Commissioner for Corporate Affairs upon several complaints in the then Perth Court of Petty Sessions against Mr Carey. I am prepared to proceed on the footing that this occurred in or about 1980 as Mr Carey suggests. Mr Carey states that the charges concerned alleged insolvent trading. I will proceed on the basis that Mr Carey is broadly correct in his characterisation of the charges. My recollection, correct or not, is that Mr Carey was convicted on all counts but that these were quashed on appeal. At the commencement of the third day of the trial on 27 March 2008, I made disclosure in the following terms to the parties concerning an investment made by one of my brothers-in-law in a company in the Westpoint Group. HIS HONOUR: But before you call Mr Nairn, I need to inform the parties that during the course of the hearing yesterday something triggered a recollection of mine that one of my brothers-in-law was an investor in a company. I couldn't remember the name of it but I made inquiries last night and it was the company called York Street Mezzanine Pty Ltd, which I think may have something to do with the Westpoint group. MR DE KERLOY: Yes. HIS HONOUR: Now, I don't consider that fact to be an impediment to my hearing this case. However, I felt it important to tell the parties of that fact. MR DE KERLOY: Yes, I would not take any issue with that, sir. Thank you for the disclosure. HIS HONOUR: Very well, thank you, Mr de Kerloy. Mr Slater? MR SLATER. We wouldn't take issue with that. HIS HONOUR: Very well. If you wish to call Mr Nairn, you can do so, Mr de Kerloy. I will proceed on the basis of Mr Carey's assertion that York Street Mezzanine Pty Ltd is indeed a company "associated with the Westpoint Group" and that any person, including my brother-in-law, who invested in York Street Mezzanine Pty Ltd has "lost their money". Lanepoint is concerned that Mr Carey's credibility had become an issue in the case in respect to the accounting treatment of loans recorded as having been made to the Westpoint Income Fund which the respondent contended were erroneous and which had been corrected. The test as to whether there is an apprehension of bias is whether "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": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] ; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] ; Antoun v R [2006] HCA 2 ; (2006) 224 ALR 51 at [1] , [51], [82]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [110] . The application of this principle requires two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Second, 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: Ebner v Official Trustee in Bankruptcy at [8]; Smits v Roach [2006] HCA 36 ; (2006) 227 CLR 423 at [53] , [56]. The insolvent trading prosecution: Counsel for Lanepoint submits that in the course of acting in the prosecution it is to be expected that I would have been exposed to a range of issues or allegations concerning Mr Carey's conduct. This, he says, is an integral part of the process that those seeking to advance a case tell counsel a range of facts some of which will become admissible as evidence and be put before the court and others which may never see the light of day in that context, but nonetheless have the capacity to effect counsel's perception of the defendant. Lanepoint was at all times represented by counsel in these proceedings. At the time I made disclosure concerning my brother-in-law's investment, Ms Carey, the then director of Lanepoint was, I am told by counsel for Lanepoint, in Court. It is not to the point to consider whether counsel for Lanepoint declined to object without instructions being taken from Ms Carey. So much is evident from what was said by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach at [45]-[48]. The Court is generally entitled to rely upon what counsel states on behalf of his or her client on such matters. Mr Carey knew of the matter which was the subject of my disclosure from as early as the beginning of April 2008. It was, belatedly, conceded in argument by counsel for Lanepoint that as and from about four weeks from the 27 March 2008, the third day of the trial, Lanepoint had impliedly waived its right to object to my hearing the case on the ground that my brother-in-law had lost his investment in a company in the Westpoint Group. This then leaves only the matter of the prosecution and the defamation action.


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294

case_text: In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future. On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review. (Federal Magistrate's Court Book references omitted). 9 At the hearing in the Federal Magistrates Court for review of the decision of the Tribunal, the applicant was represented by Mr J Gormly of Counsel, and the Minister was represented by Mr T Reilly of Counsel. Counsel for the appellant was granted leave to file an amended application, in which the appellant claimed that the Tribunal did not comply with s 424A of the Act as the letter sent to the applicant by the Tribunal pursuant to that section was sent after the Tribunal hearing. 10 It was contended for the appellant, on the basis of the remarks made in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 ; [2007] HCA 26 ( SZBYR ) at [17]-[19], that s 424A required a letter to be sent prior to any Tribunal hearing. 11 Nicholls FM dismissed this argument for two reasons. First, his Honour held that s 424A was not to be so construed, holding that SZBYR had not overturned comments in SAAP v Minister for Immigration & Multicultural Affairs (2005) 228 CLR 294 ; [2005] HCA 24 ( SAAP ) indicating that s 424A could be complied with after the Tribunal hearing. Secondly, his Honour accepted the submission on behalf of the Minister that s 424A(1) was not engaged by any material relied on by the appellant, given what was said about the meaning of "information" in SZBYR , at [17]-[18].


case_outcome: considered

case_title: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609

case_text: In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future. On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review. (Federal Magistrate's Court Book references omitted). 9 At the hearing in the Federal Magistrates Court for review of the decision of the Tribunal, the applicant was represented by Mr J Gormly of Counsel, and the Minister was represented by Mr T Reilly of Counsel. Counsel for the appellant was granted leave to file an amended application, in which the appellant claimed that the Tribunal did not comply with s 424A of the Act as the letter sent to the applicant by the Tribunal pursuant to that section was sent after the Tribunal hearing. 10 It was contended for the appellant, on the basis of the remarks made in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 ; [2007] HCA 26 ( SZBYR ) at [17]-[19], that s 424A required a letter to be sent prior to any Tribunal hearing. 11 Nicholls FM dismissed this argument for two reasons. First, his Honour held that s 424A was not to be so construed, holding that SZBYR had not overturned comments in SAAP v Minister for Immigration & Multicultural Affairs (2005) 228 CLR 294 ; [2005] HCA 24 ( SAAP ) indicating that s 424A could be complied with after the Tribunal hearing. Secondly, his Honour accepted the submission on behalf of the Minister that s 424A(1) was not engaged by any material relied on by the appellant, given what was said about the meaning of "information" in SZBYR , at [17]-[18]. 14 The High Court in SZBYR at [18] endorsed what was said by the Full Federal Court in VAF v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.


case_title: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578

case_text: Subsequent to the decision by Nicholls FM, a Full Court of the Federal Court has confirmed that s 424A is not limited to compliance before a Tribunal hearing: SZKLG v MIAC (2007) 164 FCR 578 ; [2007] FCAFC 198 at [34] - [36] . The point rejected by the Full Court in that case was argued by the same counsel who appeared for the appellant before Nicholls FM. 19 It follows that Ground 4 must fail. 20 It is for these reasons that, on 20 May 2008, I made the orders dismissing the appeal and ordering the appellant pay the respondents' costs to be taxed, if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 20 August 2008 Counsel for the Appellant: Appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 20 May 2008 Date of Judgment: 20 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1280.html


case_outcome: affirmed

case_title: SZKNB v Minister for Immigration and Citizenship [2007] FMCA 2012

case_text: On 20 May 2008, I dismissed an appeal from a judgment of Nicholls FM in SZKNB v Minister for Immigration & Citizenship [2007] FMCA 2012. 2 Nicholls FM, on 10 December 2007, dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal), which had been signed on 22 March 2007 and handed down on 23 March 2007, affirming a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. 3 I ordered that the appeal be dismissed; the appellant pay the respondents' costs to be taxed, if not agreed, and I indicated that I would deliver reasons for the making of those orders at a later date. These are those reasons.


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471

case_text: The High Court in SZBYR at [18] endorsed what was said by the Full Federal Court in VAF v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.


case_text: The applicant seeks leave to appeal from an interlocutory judgment of Federal Magistrate Smith dismissing the applicant's application for judicial review of a decision by the second respondent Refugee Review Tribunal not to grant him a protection visa: see SZLQD v Minister for Immigration and Citizenship [2008] FMCA 190. The Tribunal had earlier affirmed the first respondent Minister's decision to refuse the grant of a protection visa. Leave to appeal is required from this Court because the Federal Magistrate dismissed the application on the ground that it does not raise an arguable case for the relief claimed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Such a procedure is interlocutory in nature: see r 44.12(2) of the Rules . 2 The applicant is a citizen of India who arrived in Australia on 27 March 2007. He claims to be an active member of the Bharatiya Janta Party in Kerala State. He claims a well founded fear of persecution due to his support for the BJP. He claims that because of his political views, imputed or otherwise, he has suffered arrest, attacks and mistreatment. 3 The applicant applied for a protection visa on 10 April 2007. A delegate of the first respondent Minister rejected that application. The delegate noted that the applicant was free to relocate to another part of India where the applicant's localised problems would not continue.


case_text: Grounds one and two of the draft notice of appeal are drafted in the broadest terms and have not been particularised by the applicant. Ground one states: The single Judge of the Federal Magistrates Court in his Honours judgment delivered on the 12 February 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903. Assuming that the ground should read that the Magistrates "erred" when his Honour "failed to find error of law...", without further submission on why that is so, the ground does not suggest that the judgment is attended with sufficient doubt to warrant it being reconsidered on appeal or that a substantial injustice would result if leave were refused, supposing it to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398. 8 The second ground of appeal is similarly vague and broadly stated. It states that: The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. That is not the case. The Federal Magistrate considered all the grounds for review contained in the applicant's amended application. This proposed ground lacks merit.


case_title: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

case_text: The third ground states: Federal Magistrate Smith made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of [sic] Federal Court in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That judgment stands for the principle that, if relocation within a country of origin is an issue for consideration by a decision maker, and the applicant has a well founded fear of persecution in relation to the part of the country from which he or she had fled, the decision maker must consider whether it is reasonable in all the circumstances for that person to relocate elsewhere. 10 On this issue below, the Federal Magistrate held at [9] of his Honour's reasons for judgment that: I could find no basis in the present decision of the Tribunal for arguing error by the Tribunal by reference to s 91R, or to the principles in relation to relocation . In fact, the present Tribunal's decision did not turn upon those principles. (emphasis added) 11 The court below did not specifically address Randhawa in its reasons and there is no evidence that it was raised in submissions by the applicant. In any case, that judgment can be distinguished from the current matter because the Tribunal found that the applicant did not have a well founded fear of persecution. Therefore, the issue of relocation did not arise before the Tribunal. 12 On 20 May 2008, one day after the filing of the first respondent's written submissions in the application for leave to appeal, the appellant's solicitors filed a notice of appearance. Those solicitors also filed brief written submissions. The submissions do not address any grounds raised in the proposed notice of appeal. Instead they refer to that ground of the application raised in the court below which alleged a denial of procedural fairness by reference to s 424A of the Migration Act 1958 (Cth). The submissions contend that the Tribunal denied the applicant procedural fairness by failing to give him the particulars of country information relied on in coming to its decision. Recognising that s 424A(3) provides a complete answer to that submission, the written submissions rely on s 424AA. They allege that it is arguable that the Tribunal failed to carry out the procedure required by s 424AA. Section 424AA , provides: If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so--the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the bill which introduced s 424AA where the following was said: New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT's existing obligation under section 424A , in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA , it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA , it is not required to give the particulars under section 424A.


case_text: In any event, s 424AA only applies to applications for review lodged after 29 June 2007. This is the effect of ss 2 and 33(b) of the Migration Amendment (Review Provisions) Act 2007 (Cth), which commenced on 29 June 2007. The applicant lodged his application for review on 25 June 2007. Section 424AA did not apply to his review. In this regard see SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384 at [15] per Driver FM. 14 This new argument was not raised before the court below and is not mentioned in the proposed notice of appeal. As the applicant was previously unrepresented, the Court was prepared to allow the issue to be raised as the matter was the subject of submissions served on the Minister earlier in the week. In any event, it is a submission which has no merit. It does not disclose an arguable case for review of the Tribunal's decision or any arguable appeal point in the proposed appeal. 15 The applicant has not demonstrated that the decision below is attended with sufficient doubt to warrant its reconsideration on appeal, or that a substantial injustice would result if leave to appeal were refused.


case_text: s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).