case_outcome: related

case_text: When I delivered my reasons for judgment in this matter on 12 May 2008, I directed that the parties consult with a view to agreeing upon Short Minutes of Order giving effect to my reasons, and that, if the parties could not agree, then competing Short Minutes of Order should be sent to my chambers with brief reasons: see Esco Corporation v PAC Mining Pty Ltd [2008] FCA 640. 2 I have had the benefit of both written and oral submissions by the parties in relation to the appropriate form of orders. From these submissions, several matters have arisen which require determination. 3 The first point of dispute between the parties concerns the definition of the term "Infringing Articles", which is used in both competing Short Minutes of Order. The definition proposed by the applicants was that "'Infringing Articles' means the Hensley System, the PAC Mining System, the CQMS System and the CQMS Lower Wing System (and any other wear assembly that contains the essential integers of claim 1 of Jones III)." The definition proposed by the respondents was that "'Infringing Articles' means the Hensley System, the PAC Mining System, the CQMS System and the CQMS Lower Wing System". My reasons for judgment of 12 May 2008 refer to and explain the meaning of most of these "systems".


case_outcome: cited

case_text: There is also a dispute in relation to costs. The respondents concede that they are bound to pay the costs of the applicants in relation to the cross-claim, on which the applicants were successful. In relation to the applicants' claim of infringement, the Court found there was infringement, but in so doing only accepted one of the applicants' three arguments on construction. The general rule is that costs should follow the event, although the Court has a discretion to award costs on an issue-by-issue basis where a litigant has succeeded only in a portion of its claim: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. I think this principle should be applied in the present case, so that the applicants receive their costs with some allowance made for the fact that they succeeded only in respect of one of the three claims in dispute. Accordingly, I consider that the respondents should pay 80% of the applicants' costs.


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


case_text: Finally, the respondents seek a stay of certain orders pending determination of an appeal from my judgment of 12 May 2008. As a condition of this stay, the respondents are willing to give undertakings that they shall keep accurate records of sales, shall not destroy any records in relation to their business, shall not dispose of or encumber any assets otherwise than in the ordinary course of business, and shall execute any application for leave to appeal and appeal with due expedition: cf Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 67. In addition, the respondents undertake to pay to the applicants such amount as the Court thinks fit as compensation for any damage that the applicants may suffer as a consequence of a stay being granted, and to provide, if required by the Court, a bank guarantee in the sum of $500,000 as security for this undertaking as to compensation. 18 Relevant to the application for a stay, the respondents adduced evidence from Mr Meyers to the effect that the respondents employ about 400 people in Australia. He says that the manufacture and supply of wear assemblies is an important part of the respondents' business and a significant revenue contributor. Some of the relevant assemblies, he notes, have been supplied by the respondents for more than ten years, and that supply currently goes to every major coal producer in Australia. Mr Meyers says that if a stay is not granted, customers using the respondents' dragline and excavator lips will not be able to source alternative wear assemblies to fit their existing buckets and lips; the delay in supply of wear assemblies will have consequences for the respondents' customers' capacity to meet their contractual obligations; the employment of the 10% of the respondents' employees who are involved in the manufacture and sale of the respondents' wear assemblies may be jeopardised; and the respondents' relationship with customers will be damaged. There was some cross-examination of Mr Meyers, but it did not materially diminish the content or effect of his evidence. 19 Under O 52 r 17 of the Federal Court Rules , the Court has the power to stay the execution of a judgment pending an appeal from that judgment. There is a prima facie assumption that the judgment the subject of the appeal is correct and that the Court should not deprive a person of the fruits of victory by granting a stay. It is not necessary for the party seeking the stay to show that special or exceptional circumstances exist, but the Court must be satisfied that a sound reason has been presented to warrant exercise of the discretion: see Powerflex 67 FCR at 66; Re Middle Harbour Investments Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976).


case_text: Under O 52 r 17 of the Federal Court Rules , the Court has the power to stay the execution of a judgment pending an appeal from that judgment. There is a prima facie assumption that the judgment the subject of the appeal is correct and that the Court should not deprive a person of the fruits of victory by granting a stay. It is not necessary for the party seeking the stay to show that special or exceptional circumstances exist, but the Court must be satisfied that a sound reason has been presented to warrant exercise of the discretion: see Powerflex 67 FCR at 66; Re Middle Harbour Investments Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976).


case_outcome: applied

case_text: In turn, the respondent has submitted, in summary: a. The Acting Magistrate was not considering whether any criminal offences had been committed; b. The Acting Magistrate's findings were on the balance of probabilities under the Domestic Violence Family Protection Act 1989 (Qld); c. The Acting Magistrate did not take into account whether Ms Thompson had in any way acted in self-defence, or whether any other defences may have been available to her had she been charged under criminal law; d. As discussed in Eastman v Director of Public Prosecutions [2003] HCA 28 ; (2003) 214 CLR 318, 'guilt' is only relevant when considered in the context of conviction of an offence; e. The decision of the Acting Magistrate could in no way be considered to be a finding of guilt of anyone, much less a finding of guilt in respect of an offence of violence; f. The reference to recording 'a finding of guilt' is a reference to circumstances where a court, having found someone guilty of an offence, may not record a conviction; g. Regulation 1.23(1)(g) Migration Regulations contemplates circumstances where an applicant has suffered from domestic violence but the requirements of reg 1.23(1)(e) are not satisfied. However, the applicant has not sought to rely on reg 1.23(1)(g). 28 During the course of argument I put to the applicant's counsel that the logical conclusion of his argument was that, even if Ms Thompson had been charged with a criminal offence in respect of the wine glass incident and had been acquitted of having committed an offence because she had successfully raised a defence such as self defence or provocation , she would, for the purposes of reg 1.23(1)(e) Migration Regulations have nonetheless been 'found guilty of an offence with respect to domestic violence'. The reason for this is that the applicant has submitted that 'finding of guilt' means a finding of the occurrence of acts or omissions which constitute an offence of violence, apparently irrespective of the formality of conviction or a guilty verdict. Counsel submitted that in such circumstances reg 1.23(1)(e) Migration Regulations would be attracted, because there had been a finding of guilt 'in the relevant sense' (TS p 21 par 5). 29 In my view, that cannot be. To say that a person could be acquitted of an offence under the criminal law, but nonetheless 'found guilty' in the context of an offence of violence for the purposes of the Migration Regulations , stretches the limits of the interpretation of the words 'finding of guilt', and indeed exposes a fundamental flaw in the applicant's argument. 30 An important case in the context of interpreting both 'guilt' and 'finding of guilt' is Eastman v Director of Public Prosecutions [2003] HCA 28 ; (2003) 214 CLR 318, which involved an interpretation of s 475 Crimes Act 1900 (ACT). So far as is relevant in the case before me, it is clear from the decision of the High Court that: a. Linguistically, 'guilt' may mean, inter alia, the fact or state of wrongdoing, independently of any curial finding such as an admission of guilt (as noted by Heydon J at 346), as well as the curial determination of 'guilt' (as noted by McHugh J at 328); b. In the context of criminal offences, 'guilt' is referable to a curial determination. As McHugh J pointed out in Eastman v Director of Public Prosecutions at 325, after considering scenarios where a person could be accused of a range of criminal offences including murder, manslaughter, rape, indecent assault, burglary and housebreaking: 'In all these cases, it is fanciful to speak of "guilt" as being an entity that is independent of the jury's verdict. It is the conviction recording the jury's verdict that establishes the "guilt" of the prisoner. Like Bishop Berkeley who "maintained that material objects only exist through being perceived", the lawyer maintains that "guilt" exists in a criminal law context only when it is perceived as the (326) of a conviction. To assert otherwise is to deny the presumption of innocence, a presumption that operates until the entry of a conviction rebuts it.' c. A ' finding of guilt' refers to a curial determination of guilt. In my view this was accepted by all judges in Eastman v Director of Public Prosecutions . 31 Applying the reasoning in Eastman v Director of Public Prosecutions , in my view the reference to a court 'recording a finding of guilt...in respect of an offence of violence' in reg 1.23(1)(e) Migration Regulations is a reference to a curial determination of guilt when a person has been charged with a criminal offence involving domestic violence, and has been brought before a court to answer that charge. 32 Regulation 1.23(1)(e) distinguishes between the conviction of an alleged perpetrator of an offence of violence, and recording a finding of guilt against the alleged perpetrator of an offence of violence. In my view the explanation for this distinction is simple. In the Penalties and Sentences Act 1992 (Qld) for example, s 12 gives courts a discretion to record or not record a conviction as provided by that Act. In considering whether or not to record a conviction, a court is required to have regard to all the circumstances of the case, including the nature of the offence, the offender's character and age, and the impact that recording the conviction will have on the offender's economic or social wellbeing or chances of finding employment (s 12(2)). This legislation is reproduced in similar terms in other jurisdictions: see for example s 8 Sentencing Act 1991 (Vic), s 10 Crimes (Sentencing Procedure) Act 1999 (NSW), s 16 Criminal Law (Sentencing) Act 1988 (SA), s 39 Sentencing Act 1995 (WA), s 9 Sentencing Act 1997 (Tas), s 17 Crimes (Sentencing) Act 2005 (ACT), s 8 Sentencing Act (NT) . Regulation 1.23(1)(e) recognises that person may be found guilty of an offence without a conviction being recorded against their name. The prerequisite to both situations however is that a person has been charged with a criminal offence. 33 Accordingly, 'recording a finding of guilt' is an action open to a court in dealing with an accused charged with a criminal offence. In my view the learned Magistrate, in making a finding of fact in the context of an application for a domestic violence order requiring proof on the balance of probabilities, and which did not in any way involve criminal charges in respect of an offence of violence or otherwise, was not recording a finding of guilt in respect of an offence of violence committed by Ms Thompson or anyone else. The applicant has not established that he has suffered from domestic violence as defined by s 1.23 (1)(e), and therefore has not satisfied the criteria in subcl 801.22 (6) Migration Regulations . As a result, the application fails. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier J. Associate: Dated: 30 March 2006 Counsel for the Applicant: Peter Bickford Solicitor for the Applicant: Rodney Sahay Counsel for the Respondent: Matthew Brady Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 March 2006 Date of Judgment: 30 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/327.html


case_title: Jess v Scott (1986) 12 FCR 187

case_text: To establish that special reasons exist, the applicant must show that this case can be distinguished from the usual course: Jess v Scott (1986) 12 FCR 187.


case_text: In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 , Finkelstein J had regard to: (a) the length of the delay; (b) whether the respondent will suffer prejudice if time was extended; (c) the nature of the injustice to the applicant if denied the right to appeal. Another relevant factor is the explanation for the delay. Further, in considering the second and third factors mentioned above, it may be necessary to have regard to the merits of the appeal. If the applicant has little or no prospect of success, then that would be a reason for refusing an extension. If, on the other hand, the appeal raises a matter of some importance or appears to have some prospect of success, that would be a reason absent any prejudice to the respondent for extending time. 22 The judgment in this matter was given ex tempore. The applicant was present when judgment was delivered. He was aware on the date on which the order was made that his application for review had been dismissed. No evidence has been adduced as to when he changed his address or when the judgment was collected from the Federal Magistrates Court. Whilst the length of the delay is not great, the explanation for the delay is not satisfactory. 23 The Minister can point to no prejudice if an extension of time were granted.


case_text: Conduct which is burdensome, harsh and wrongful is oppressive: Scottish Meyer Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 at 342. Such conduct is capable of being unfairly prejudicial to a member within the meaning of s 232(e): Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 135D per Spender, O'Loughlin and Branson JJ. Their Honours went on to apply what Lord Wilberforce said in Ebrahami [1973] AC at 379 which I have set out above on the question of the existence of quasi partnership ( Dynasty 59 FCR at 138 B-D). They took the view the act of removing a quasi partner as a director could be significant evidence of oppression ( Dynasty 59 FCR at 138 E-F; see also Smith Martis Cork & Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136 at 149-150 [105]-[107] per Wilcox, Marshall and Jacobson JJ).


case_text: In his seminal speech in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 380B Lord Wilberforce pointed out that a company however small and however domestic is a company and not a partnership or even a quasi partnership. He said, however, that it was through the just and equitable clause (now s 461(1)(k)) that obligations, common to partnership relations, may come in. He continued by pointing out that the just and equitable ground is available if the member can point to and prove some special underlying obligation of his fellow member or members in good faith, or confidence, that so long as the business continues he shall be entitled to management participation, an obligation so basic that, if broken, the conclusion must be that the association must be dissolved ( Ebrahimi [1973] AC at 380E). 234 Lord Wilberforce said that the principles on which the member may do this had been worked out by the Courts in partnership situations. Earlier in his speech, he pointed out that the just and equitable ground enables the Court to subject the exercise of legal rights to equitable considerations. He said that these considerations were of a personal character between one individual and another which may make it unjust or inequitable, to insist on legal rights or to exercise them in a particular way. Lord Wilberforce said that it would be impossible and wholly undesirable to define the circumstances in which those considerations may arise and pointed to the fact that merely because a company was a small one or a private company was not enough to bring those into play. 235 If the association were purely a commercial one in which it could safely be said that the basis of the association was adequately and exhaustively laid down in the company's constitution, equitable considerations need have no part ( Ebrahimi [1973] AC at 379 C-E). But, his Lordship pointed out that: ( Ebrahimi [1973] AC at 379 E-H) 'The superimposition of equitable considerations requires something more, which typically may include one, or probably more, of the following elements: (i) an association formed or continued on the basis of a personal relationship, involving mutual confidence - this element will often be found where a pre-existing partnership has been converted into a limited company; (ii) an agreement, or understanding, that all, or some (for there may be 'sleeping' members), of the shareholders shall participate in the conduct of the business; (iii) restriction upon the transfer of the members' interest in the company - so that if confidence is lost, or one member is removed from management, he cannot take out his stake and go elsewhere. It is these, and analogous, factors which may bring into play the just and equitable clause, and they do so directly, through the force of the words themselves.'


case_text: However, it is necessary to consider whether some other remedy might be available of a less drastic kind under s 233 (see s 467(4)). In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672 at 687 [89]-[90] per Spigelman CJ, 772 [570]-[571] per Priestley JA and 792 [691] per Fitzgerald JA, the Court of Appeal of the Supreme Court of New South Wales held that the existence of irreconcilable differences among persons involved in what is, in effect, a partnership, conducted through a company, applies both to applications for winding up on the just and equitable ground and also to oppression suits. Spigelman CJ pointed out ( Fexuto 37 ACSR at 687 [89] [90]), if the court decided the person excluded was the one responsible for the breakdown in the relationship, he or she would not be entitled to claim to have suffered oppression under s 232. That is not this case. Mr Bax's conduct was understandable and reactive to Mr Gulson's. If fault is to be attributed in the breakdown of the relationship, it is to Mr Gulson for the way he behaved in the Heathrow Hotel and afterwards. That conduct was destructive of and confirmatory of the destruction of the previous relationship of mutual trust and confidence. Mr Cordato later came to participate in association with Mr Gulson in that destructiveness. 247 As Priestley JA said in Fexuto 37 ACSR at 772 [571], putting in quasi partnership terms what happened from 29 May 2005, the majority shareholder and director changed the previous management regime against the opposition of the minority director and shareholder. He held that this entitled the minority to a remedy and that in ordinary partnership situations the remedy was dissolution of the partnership. Priestley JA pointed out that the remedy available under the analogue of ss 232 and 233 was broader than simply a winding up. He had found that oppression in that case had occurred by a change in the previous way in which the business had been conducted, where all the partners or directors jointly engaged in direct management of the company ( Fexuto 37 ACSR at 772 [569]). 248 Even if oppression of, or unfair prejudice or unfair discrimination against Food Improvers (either as a member of BGR or the partnership or as the provider of Mr Bax's services under the consultancy agreement) were not established solely by what occurred on the evening of 29 May 2005, Mr Gulson's later determination to use his voting power to exclude, first, Mr Bax as a director of BGR and, secondly, Food Improvers from the benefits of both his directorship and the consultancy agreement on the knowingly false basis upon which it was asserted that Mr Gobert's contact should be terminated or its termination affirmed, was oppressive of, unfairly prejudicial and unfairly discriminatory against Mr Bax and Food Improvers. When Mr Cordato sided with Mr Gulson and they both voted in favour of the resolutions on 1 July 2005, the oppression of Food Improvers was manifest. 249 Mr Bax was excluded from any management role in BGR. Mr Gulson commenced to pay Triad an increased consultancy fee. He and Mr Cordato initially consulted with Mr Bax about the sale of Main Camp plantation, but later negotiated the sale without Mr Bax's involvement and refused to inform him of the details of its terms apart from the price.


case_outcome: considered

case_text: In In re A Company [1999] UKHL 24 ; [1999] 1 WLR 1092 at 1098D-1102B Lord Hoffmann discussed the interplay of the just and equitable concept in the analogue of s 461(1)(k) and 'unfair' in the analogue of s 232(e). He pointed out that although fairness was a notion that could be applied to all kinds of activities, its content would depend upon the context in which it was being used ( In re A Company [1999] 1 WLR at 1098F). Of course, there will be decisions in any association, such as a partnership or company, which one or more members find to be prejudicial or discriminatory against them. But the emphasis in establishing a ground for an order under s 232(e) is that the conduct be unfairly prejudicial or discriminatory or be oppressive ( Wayde v New South Wales Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 467-468 per Mason ACJ, Wilson, Deane and Dawson JJ). Thus, the bona fide and proper exercise of a power under a company's constitution for the purpose for which it was conferred is unlikely to be found to establish unfair prejudice or unfair discrimination against a member under s 232(e) ( Wayde 180 CLR at 467).


case_text: Moreover, Mr Cordato acted in these proceedings as solicitor for all the defendants in circumstances where no reasonable solicitor in his position could possibly have acted. He was precluded by the application of r 19 of the Solicitors Rules from acting, certainly by no later than 8 May 2006, but probably considerably earlier. But in any event, Mr Cordato's financial interest in the success of the defendants' case meant that he was unable to act with the independence which a solicitor on the record must have as part of the relationship between an officer of the court and the court in the presentation and conduct of litigation: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 at 512 [76] , 584-585 [86], 586 [91] per Brereton J. As Brereton J said, a solicitor should not act where a fair minded and reasonable observer would think that his or her independence and objectivity as a solicitor would be compromised. The scrutiny which the solicitor's conduct would attract in litigation, his or her knowledge of the instructions in relation to the subject matter in which he or she might be a material witness are relevant factors in this regard. ( Kallinicos 64 NSWLR at 586 [91]). Mr Cordato was a material witness on important conversations; he charged BGR for the personal costs for which Triad and Cordato Partners Services were liable and he continued to act oblivious of the motion to enjoin him from doing so. He prepared Mr Gulson's affidavits including those parts dealing with disputed conversations, such as with Mr Lombardo, to which both Mr Cordato and Mr Gulson were party. That conduct put him in an impossible position. However much, by his own lights, he may have tried to put Mr Gulson's account objectively and uninfluenced by Mr Cordato's own recollection he could not do so in the way a person who was independent could have. And, of course, Mr Cordato's account is likely, even if only subconsciously, to have been influenced by what he had learned in taking Mr Gulson's affidavits. 255 The distribution in February 2006 did not recognise the need to make any payment to Mr Bax and Food Improvers for the work that he had been done during the periods in which consultancy fees had been refunded and later when they were either left unpaid or paid at a reduced rate. This was unfair prejudice to Food Improvers. Mr Cordato's legal firm was permitted by Mr Gulson to bill and be paid in January 2006 for all its unbilled work in progress throughout BGR's existence. Yet, Mr Cordato was not even working in the business of BGR to generate the asset that was ultimately realised on the sale of the Main Camp plantation business. 256 The affairs of BGR have been taken over by Mr Cordato and Mr Gulson and run in a way which favours their companies' interests and disadvantages Mr Bax's. Mr Cordato made no attempt to dissect from the fees he rendered to BGR those which were referable wholly to his own personal and his company's interests. Nor did he attempt to do so in respect of the personal interests of Mr Gulson and Triad. Instead, both Mr Cordato and Mr Gulson, deliberately, decided to use BGR's money to pay for the whole of the defence costs. I do not believe their evidence to the effect that the expenditure for the personal purposes of Mr Cordato or Cordato Partners Services was unintended. Mr Cordato kept no records to enable separate fees to be rendered because he did not need to do so. He considered he was entitled to use BGR's money to defend his own personal and his company's interests including his reputation, so far as it was attacked in the case. Mr Gulson had no reason to disapprove of Mr Cordato's fees being paid by BGR because Triad's fees were too. Likewise, Mr Gulson saw his interests as being those of BGR, which is why he caused the fees that Kemp Strang had rendered to Triad to be paid by BGR. Mr Cordato's lack of independence was one contributing factor which permitted that to occur. 263 After the hearing had concluded both sides and Mr Cordato made written submissions on the question of Mr Cordato's continuing to act. The plaintiffs apparently had insisted that counsel who appeared at the trial for the defendants be not permitted to make those submissions. Senior counsel was retained to make submissions on behalf of Mr Cordato and his firm. Senior counsel submitted that the attempt to remove Mr Cordato as solicitor for the defendants was made too late, was without substance and was inconsistent with the position taken by Haywards in their letter of 15 May 2006 that Mr Cordato's continuing to act was further evidence of oppression. Senior counsel pointed to Brereton J's statement in Kallinicos 64 NSWLR at 582 [76] that the jurisdiction is to be regarded as exceptional and is to be exercised with caution. 264 The fact that the plaintiffs only then insisted on someone other than those who had appeared hitherto in making these submissions, although the basis of such insistence is not clear to me, demonstrated a belated realisation on the plaintiffs' part of the inappropriateness of their motion. It was directed to restraining Cordato Partners, as opposed to restraining the defendants. Cordato Partners was not a party to the proceedings or to the motion. That firm had not been served formally and it was not separately represented at the hearing or on any other occasion save for the submissions made by senior counsel. Mr Cordato gave evidence as a witness, and as the controlling mind of Cordato Partners Services, the third defendant, but not as a party to the proceedings personally; nor did he appear for Cordato Partners. Had the motion sought to restrain the relevant defendants from engaging Cordato Partners, it may have been possible to hear and determine it, although, as a person affected by the order, Cordato Partners should have been joined and they could have applied to be joined. 265 I am not satisfied that the proceedings have been conducted appropriately as a vehicle for determining in the inherent jurisdiction of the court the disqualification of Cordato Partners from acting. I have expressed views about the inappropriateness of Mr Cordato's conduct, but having regard to the way in which the matter developed and the very late realisation by both sides as to the need for independent representation of Cordato Partners, I do not think it appropriate at this stage to make any orders against the firm or its principal Mr Cordato. For the reasons I have given it is inappropriate for Mr Cordato and his firm to continue to act for the defendants. That being so, I do not think it necessary for me to do anything further.


case_title: Re DG Brims & Sons Pty Ltd (1995) 16 ACSR 559

case_text: In Re DG Brims & Sons Pty Limited (1995) 16 ACSR 559 at 591-592, Byrne J in the Supreme Court of Queensland said the use of company funds in defending the proceedings on behalf of the majority shareholders was unfair and infringed the basal principle that the powers and the funds of a company may be used only for the purposes of the company. He said that where the essential dispute was between the shareholders, company funds should not have been used to defend the majority. Here, the essential dispute was between the shareholders and the funds of BGR should not have been employed to pay for a defence of the majority. 259 For all these reasons, I am of opinion that the conduct of BGR's affairs is contrary to the interests of its members as a whole and is oppressive to, unfairly prejudicial to or unfairly discriminatory against Food Improvers. 260 The plaintiffs filed a motion on 31 March 2006 which sought, among other things, an order restraining Cordato Partners from acting for any of BGR and its subsidiaries. It was not sought to restrain Cordato Partners from acting on behalf of Triad or Cordato Partners Services. The hearing of that motion was concurrent with the trial. Cordato Partners is not a party to the proceedings, and was not made a party to the motion. No relief is sought in the third further amended application or the further amended statement of claim against Cordato Partners.


case_title: Scottish Meyer Cooperative Wholesale Society Ltd v Meyer [1959] AC 324


case_text: In Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 WLR 413 at 417H-418A the Privy Council held that where a person has been led to believe, even in the absence of any express assurance, that he or she would participate in the management of a company, he or she would in any event be entitled to a seat on the board so long as he or she continued to hold his shares. Their Lordships said that although no specific undertakings may have been given, an obligation could be implied or inferred from the conduct of the parties to allow the person to participate in the management and to be a director '...unless by withdrawal of his support or for some other good reason a change in management and control became necessary.'


case_title: Wayde v New South Wales Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459


case_outcome: referred to

case_text: principles have been applied in many cases. Not surprisingly the Respondents place reliance on cases, such as BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 and Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85 in which the Court granted applications to transfer; and the Applicants drew attention to cases such as Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 and Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 in which transfer applications were refused. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. They included the questions of whether pleadings had closed and whether the witnesses to be called at trial were known at the time at which the application was made.


case_title: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239


case_title: BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807


case_title: Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85


case_title: Lamb v Hogs' Breath Co Pty Ltd (No 1) [2007] FCA 49

case_text: are, plainly, issues relating to discovery and inspection which will, most conveniently, be attended to through the Western Australian District Registry in Perth. That is not a reason for transferring the proceeding at this stage. In my view the considerations which informed the decision of French J in Lamb v Hogs' Breath Co Pty Ltd (No. 1) [2007] FCA 49 are (with some changes to place names and a minor omission) equally apposite in the present circumstances. His Honour said (at [9]-[11]) that: "[9] ... So far as the interlocutory processes are concerned, unless some unusual circumstances occur, it matters little whether the proceeding is in the Perth or [Melbourne] Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that. The question of travel between Perth and [Melbourne], raised by the parties is, in my opinion, of little relevance at this stage of the proceeding. The question of transfer does not impact on the question of the place of the trial nor, ultimately, the judge who conducts the trial. [10] The docket system ...offers the advantage of continuity in case management, at least up to the point of trial. While ordinarily the docket judge will hear the trial of the action which he or she has been managing, it is not unusual for there to be cases in which the trial is allocated to another judge for reasons of convenience. So it might be that if this case were not to be transferred but it were thought that it would be most conveniently heard and determined in [Perth], a judge from the [Western Australia] Registry could hear the case without having been involved in the pre-trial case management. Much will depend upon the geographical distribution of the witnesses and it may be that part of the trial will be conducted in one centre and part in another. It is too early to make a determination about that. [11] So far as the return of subpoenas to produce documents is concerned, production can readily be directed to the Registry most conveniently located from the viewpoint of those who have to respond to those subpoenas. Those are all case management matters which can be dealt with in due course." In my view the preferable course is for me, as docket Judge, to continue to direct the pre-trial management of the proceeding. This will not disadvantage any party. The first two hearings were conducted in Melbourne. The hearing of the present application has taken place in Perth this morning. On each occasion the representatives of the parties who were not present in Court were heard by video-link. There is no reason why such arrangements cannot continue to be made. The Respondents' concern relating to the inspection of documents can be met by a regime under which that inspection takes place in Perth. If need be the facilities of the local Registry can be made available.


case_text: provisions were considered by a Full Court in National Mutual Holdings Pty Ltd & Ors v Sentry Corporation & Anor (1988) 18 FCR 155. The Court said (at 161-162) that: "The Federal Court is a Court of wide jurisdiction throughout Australia whose judges may sit, whether as Full Courts or single judges, at any place in Australia. The Court has registries in each of the capital cities and the States and Territories. The purpose of the provision in the rules of a "proper place" is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding. The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10 r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or on its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing and pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely." As National Mutual makes clear the Court has an unfettered discretion which is to be exercised in the interests of justice in the circumstances of the case in which the application is made. The Applicants' solicitors and counsel are based in Melbourne. They have chosen to commence the proceeding in the Victoria District Registry. In exercising the discretion conferred on the Court by s 48 and O 10 it is necessary that I consider whether, at this stage of the proceeding, the status quo should be disturbed. I can readily understand why the Respondents assert that it would be highly inconvenient to them and damaging to the interests of the First Respondent for them to have to travel to Melbourne to give evidence and instructions. Their evidence and submissions, however, are founded on a number of assumptions which may or may not prove to be correct. It is conceivable that a trial may not be necessary. The dispute, might, for example, be resolved through negotiations between the parties or mediation. Whilst the material presently before the Court suggests that, if a trial takes place, most of the witnesses will be residents of Perth, no concluded view of the domicile of most of the witnesses will be possible until the issues in dispute are defined. The number and identity of witnesses will not be able to be determined until the pre-trial process is much further advanced. Much less will it be possible to judge which witnesses will be required for cross-examination and how long their evidence is likely to take.


case_text: exercising its supervisory jurisdiction under Pt 9 of the Act, the Court has a discretion to refuse a scheme or confirm it with or without modification (s 194). Confirmation of a scheme pursuant to s 194 is not a mere formality ( ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806 at [4] ). The Court must have regard to the object of protecting the interests of policy holders ( Re Royal at [3]). It must ensure that the scheme will not be prejudicial to the interests of policy holders and that policy holders are properly safeguarded ( NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] ).


case_title: NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635


case_text: did not consider that delay to be fatal to the applications ( Re Royal at [18]; Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162). The Notices were published in New South Wales in three other approved newspapers prior to the public inspection period. Public inspection of the schemes was also extended in New South Wales from 8 September 2006 to 12 September 2006 to compensate for the delay in publication in the Daily Telegraph . For these reasons, I was satisfied that the delay did not adversely affect policy holders.


case_text: principal object of the Act is to protect the interests of owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry (s 3(1)). One means adopted to achieve this objective is the regime in Pt 9 of the Act for supervision of the transfer or amalgamation of life insurance businesses by the Court (s 3(2)(f) ; Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at [3] ). In exercising its supervisory jurisdiction under Pt 9 of the Act, the Court has a discretion to refuse a scheme or confirm it with or without modification (s 194). Confirmation of a scheme pursuant to s 194 is not a mere formality ( ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806 at [4] ). The Court must have regard to the object of protecting the interests of policy holders ( Re Royal at [3]). It must ensure that the scheme will not be prejudicial to the interests of policy holders and that policy holders are properly safeguarded ( NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] ). I did not consider that delay to be fatal to the applications ( Re Royal at [18]; Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162). The Notices were published in New South Wales in three other approved newspapers prior to the public inspection period. Public inspection of the schemes was also extended in New South Wales from 8 September 2006 to 12 September 2006 to compensate for the delay in publication in the Daily Telegraph . For these reasons, I was satisfied that the delay did not adversely affect policy holders. Copies of the schemes and the actuaries' reports were provided to APRA in accordance with the Act and the Regulations. APRA is a significant participant in proceedings for confirmation of a scheme ( Re Royal [24]). It informed the Court that it has no objection to the implementation of either scheme. That was a factor of material significance in the exercise of the Court's discretion to confirm the schemes under s 194 of the Act ( The Application of Commonwealth Life Ltd [2003] FCA 637 at [13] ). Significantly, the costs of the schemes will not be borne by policy holders. Lifetime and National will continue to exist after the schemes are implemented and have given undertakings to the Court to maintain their current telephone and email addresses for at least 12 months.


case_title: Pye v Renshaw [1951] HCA 8 ; 84 CLR 58

case_text: The Commonwealth says, however, that, even if there is an acquisition, it is not an acquisition by the Commonwealth, but by the State. The Commonwealth refers to a long-standing authority of the High Court to the effect that the Commonwealth may properly induce a State to exercise its powers by offering a money grant. The Commonwealth says that, even if the powers exercised by the State constitute an acquisition of land, it is not an acquisition by the Commonwealth but an acquisition by the State (see Pye v Renshaw [1951] HCA 8 ; 84 CLR 58 at 83). 7 Counsel for Mr Spencer contends that the authorities relied on by the Commonwealth are distinguishable from the present case. That may well be. Mr Spencer's argument is along the lines that the Commonwealth has, in some way, provided funds to the State in order to induce the State to impose restrictions that constitute an acquisition, such that the Commonwealth acquires some benefit by reason of the restrictions, the benefit being tradable emissions credits. 8 I consider that the statement of claim, in its present form, is embarrassing, in the sense that it does not disclose facts that, if established, could support the relief that is claimed. I therefore propose to strike out the statement of claim. However, I am prepared to give Mr Spencer the opportunity of filing an amended statement of claim to address the two questions that I have briefly mentioned. If there is an appropriate question of law to be thrown up, it may be possible to consider an application for preliminary determination of that question. It does appear, however, that there will be a factual issue thrown up by any amended pleading, namely, the extent to which the restrictions imposed by the State legislation are capable of constituting an acquisition. It may be that some new facts would enable the court to proceed to dispose of the whole proceeding on the basis of legal argument. That remains to be seen when the amended statement of claim is filed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 13 September 2007 Counsel for the Applicant: Dr J Walsh Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 August 2007 Date of Judgment: 31 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1415.html


case_title: Ally v Minister for Immigration & Anor [2007] FMCA 430


case_text: Consistent with the judgment of the Full Court in Jess v Scott (1986) 12 FCR 187, I am satisfied that there are special reasons for granting leave to appeal in the present case. 45 I am not to be taken from the observations set out earlier that there are strong grounds for thinking that the proposed appeal will be successful. However, the unusual factual circumstances of this case and the detailed analysis by Smith FM to the proper use of later facts in respect of the factual question to be determined at an earlier time, persuade me that the appeal is not "doomed to fail". Technical default as to filing within time should not be an unscaleable hurdle where possible injustice might result in the absence of the grant of leave. 46 For all of the above reasons, I make the following orders: (1) The applicant have leave to appeal from the order of Smith FM on 20 April 2007. (2) The time for lodging an appeal be extended to 17 August 2007. (3) The applicant have leave within 21 days from the date of judgment to file and serve an amended Notice of Appeal and any such further affidavit evidence on which she wishes to rely in support of her appeal. 47 As to costs, it was necessary for the applicant to bring this application, and to secure the indulgence of the Court by the grant of leave. That application was unsuccessfully opposed by the first respondent. 48 In the circumstances, it is appropriate to order that there be no order as to the costs of the application for leave to appeal. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 30 August 2007 Counsel for the Appellant: I.N. Asuzu Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 August 2007 Date of Judgment: 30 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1373.html


case_text: Further, Smith FM said, at [44]: The applicant's counsel in his written and oral submissions made unfocused complaints about the Tribunal's decision which were clearly outside the ambit of his amended application. These were, in my opinion, almost entirely attacks on the merits of the factual assessments reached by the Tribunal. However, the Tribunal was required to address impressionistic criteria which were particularly difficult to apply to the present case. In this situation a court of judicial review must bear in mind its duty "to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely" ( Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1 ; [1986] AC 484 at 518, quoted in Minister for Immigration & Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 at [41] ). Counsel's arguments did not cause me to arrive at such a judgment in this case. 36 The draft Notice of Appeal contains a ground: 3. The Federal Magistrate erred by accepting MRT's "impressionistic criteria", which revealed a misconception of the law and therefore consciously or unconsciously acted perversely. 37 Whether the factual integers in Regulation 1.15A can fairly and properly be described as "impressionist criteria" is open to argument. It is arguable that the proposition, stated by the Federal Magistrate that a court of judicial review can only interfere in the facts of this case if it was obvious that the Tribunal or the delegate consciously or unconsciously was acting perversely , relying on the observation of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1 ; [1986] AC 484 at 518, is an overstatement of what Lord Brightman said. 38 The full quote indicates that the nature of the duty of a Court to respect the fact-making function to the person to whom Parliament has entrusted the decision making power of which his Lordship was speaking, is to be understood in the context of the variable circumstances of fact finding described by the opening words: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable ... 39 In this case, the first respondent says that "the proposed notice of appeal has no merit nor is there any jurisdictional error apparent in the Tribunal's reasons for decision or legal error apparent in the reasons for judgment of the Federal Magistrate." 40 The first respondent acknowledges that the delay in filing the Notice of Appeal was occasioned by the applicant's counsel's absence from Australia and that the delay is short, and no prejudice has been occasioned by that delay. 41 The respondent submits: The sole basis for the respondent's opposition to the application is that, in the respondent's submission, the proposed appeal does not have sufficient prospects to justify the Court's discretion being exercised in the applicant's favour.


case_text: Forestry Tasmania relied upon the common law concept of legal professional privilege as referred to in The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 at 552 to 553. It contended that the emails and attachments are "communications" prepared for the purpose of obtaining legal advice or form part of its lawyer's investigations for the purpose of this proceeding.


case_text: Counsel for Forestry Tasmania submitted that the Evidence Act does not apply to its objections to produce the documents called for by Senator Brown. They referred to Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, where the High Court observed that the statutory privilege was confined to the adducing of evidence during the course of a hearing. They say that at common law, legal professional privilege extends beyond the course of the hearing to pre-trial issues such as discovery disputes. 10 In any event, counsel for Forestry Tasmania contended that "the common law and the statutory tests yield the same conclusion in relation to the protection of the documents called for from production."


case_outcome: followed

case_text: The Evidence Act applies to this proceeding; see s 4(1). Order 33 rule 11(5) of the Rules of Court extends the operation of ss 118 and 119 of the Evidence Act to orders for the production of documents in circumstances where the call for production is made in the course of evidence being adduced before the Court; see Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 at [6] , per Lindgren J. 12 Section 118(a) of the Evidence Act , when read together with O 33 r 11(5) of the Rules of the Court, prevents the production of documents if the production would result in disclosure of a confidential communication made between the client and a lawyer, for the dominant purpose of the lawyer providing legal advice to the client. 13 The documents, the subject of the current call for production, have been described by Mr McDonald (the in-house lawyer for Forestry Tasmania) as being prepared for the purpose of communication between Dr Read and Mr Meggs, to have Mr Meggs critically review affidavits of two witnesses called by Senator Brown, as well as Dr Read's affidavit. 20 In Collins at [5] and [6], Lindgren J stated that s 119 (and inferentially s 118) of the Evidence Act applies to the stage where evidence is adduced, and not to the earlier pre-trial stage of access to documents discovered or produced on subpoena. Order 33 rule 11 applies at the stage where evidence is being adduced in conjunction with ss 118 and 119 by extending their operation. 21 Whether O 33 r 11, in conjunction with ss 118 and 119 , is a code is beside the point. It applies according to its terms. It is to ask the wrong question to inquire whether O 33 r 11 preserves the common law because its terms are not directed to that point.


case_text: Counsel for Forestry Tasmania referred to the judgment of the Full Court in Seven Network Ltd and Another v News Ltd and Others [2005] FCAFC 125 ; (2005) 144 FCR 379 in support of the submission that O 33 r 11(5) did not operate in conjunction with the Evidence Act to apply to a call for documents during the course of a trial. 23 Counsel's reliance on Seven Network is misplaced. That case determined that O 33 r 11 did not apply to pre-trial proceedings but to the conduct of a hearing; see Branson J at [16] to [18] and Allsop J at [33]. The documents in question in the current proceedings were called for during the conduct of the hearing. Accordingly, O 33 r 11 applies to them and O 33 r 13 may be availed of to compel their production; see Branson J at [17]. 24 Counsel for Forestry Tasmania also referred to the rule making power of this Court under s 59 of the Federal Court of Australia Act 1976 (Cth). That section empowers Judges of this Court or a majority of them to make rules of Court "making provision for or in relation to the practice and procedure to be followed in the Court". Order 33 rule 11 is within the rule making power of this Court set out in s 59 of the Federal Court of Australia Act . Order 33 rule 11 is a provision concerning practice and procedure. One only needs to set out the provision in full to make good that point: "[Order 33 rule] 11 Privilege (1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. (2) Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question. (3) Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before the Court or any officer of the Court, or any examiner, or other person authorized to receive evidence, whether on a trial or hearing or on any other occasion. (4) This rule does not affect any rule of law which authorizes or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest. (5) In this rule: ground of privilege means a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act 1995 ." 25 In any event, the claim for privilege if exercised purely in a common law context would fail. That is because the relevant communications are not from or to a legal adviser for the dominant purpose of providing legal services to a client in connection with legal proceedings. They are communications between witnesses designed to assist each other in the preparation of their witness statements.


case_text: In like circumstances in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985 , Ryan J said at [6]: "...it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred." 28 I agree, with respect, with the views of Ryan J set out above. At the very least I am not convinced that they are plainly wrong. Accordingly, I will follow it in preference to any contrary approach in State courts. 29 Further, an imputed waiver arises given that the documents relate to the issue of the impartiality of Dr Read and Mr Meggs. In these circumstances it would be unfair to Senator Brown not to require the production of the documents. This is especially so in circumstances where Forestry Tasmania has produced other emails in respect of drafts of Mr Meggs' affidavit.


case_title: Ryder v Frohlich [2005] NSWSC 1342

case_text: Consequently, there has been intentional disclosure of other like communications of a not materially different quality such that if these documents were ever privileged they should no longer retain that status; see Ryder v Frohlich [2005] NSWSC 1342 at [16] per Barrett J. 31 Forestry Tasmania has produced drafts of Mr Meggs' affidavit which are now exhibits in the proceeding. These exhibits raise issues not materially different to the issues raised by the documents sought to be produced, that is, the formation of expert opinion and the independence or otherwise of that opinion. 32 Counsel for Forestry Tasmania contended that it would be premature to rule, at this stage, that privilege is waived until Dr Read's affidavit is read. I agree with counsel for Senator Brown that there is no point in postponing determination of this issue. I am prepared to assume that Dr Read's affidavit will be read.


case_text: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 ; (2007) 97 ALD 721 , Middleton J considered at [47] and [48] the principles to be applied in exercising the discretion under s 46PO(2) of the HREOC Act and held that the three main matters that need to be taken into account are: (a) The explanation of the delay; (b) any prejudice to the respondent; and (c) whether the applicant has an arguable case. Subsequently, on 8 July 2009, the respondent filed a notice of motion seeking a stay or summary dismissal of the proceeding pursuant to O 20 r 5(1)(a) or (b) of the Rules; in the alternative, summary judgment in favour of the respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act'); in the alternative, that the applicant's 'Application and Claim' be struck out pursuant to O 11 r 16 of the Rules; in the alternative, that the applicant provide security for costs in the sum of $20,000 or such other sum ordered by the Court by a fixed time and date, that the proceeding be stayed until such time as the applicant provided such security and that if such security was not forthcoming by the time and date so fixed, the proceeding be dismissed. Additionally, the respondent sought an order pursuant to O 46 r 7A of the Rules, that the applicant not institute any proceeding against the respondent relating to the subject matter of the present proceeding except with the leave of the Court. When the motion came on for hearing, I indicated to the parties that I did not think O 11 r 6 of the Rules enabled me to strike out the applicant's 'Application and Claim' even if I was minded to do so; that rule was concerned with the striking out of pleadings and could not be relied upon to strike out the applicant's originating application. Second, I indicated that until I determined the applicant's application for an extension of time in which to file his originating application, the orders and alternative orders sought on the motion were premature, even though there were common underlying issues as between the exercise of the Court's discretion as to whether an extension of time should be granted and whether or not to make the primary orders for relief sought in the motion. I therefore proceeded to hear the applicant's application for an extension of time to file his originating application in the Court outside the 28 days prescribed by s 46PO(2) of the HREOC Act. Explanation for Delay The respondent did not claim any actual prejudice caused by the delay. However, the absence of prejudice is not sufficient to allow an extension of time: Bahonko at [53]. Arguable Case For the reasons advanced below in paras [21] to [24], the respondent submitted that the applicant's case is not arguable and has no prospects of success. In consequence, the respondent submitted that it is not in the interests of justice to grant the applicant an extension of time to file his originating application. In Attachment A to the Form 167, the applicant responded to question 11: 'Describe the discrimination that you are complaining of', in the following terms: (a) It is alleged that on the 29/1/2008 the respondent unlawful[ly] discriminated against the applicant contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by failing to accept the applicant's application for re-enrolment in the day time full time mode of the diploma in Website Development. (b) It is alleged that on the 8/2/2008 the respondent unlawful[ly] discriminated against the applicant contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by limiting the applicant's access to the evening time part time mode of the diploma in Website Development. (b) It is alleged that the respondent unlawful[ly] discriminated against the applicant by subjecting the applicant to further detriment contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by filing a response to the applicant's complaint in the Human Rights and Equal Opportunity Commission knowing that the information or statements were false and misleading in material particulars and in contravention of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) s. 46PN. (c) It is alleged that the respondent well knew since approximately 1990 that the applicant was under a physical disability, Repetitive Strain Injury (RSI).


case_outcome: affirmed

case_text: Shortly thereafter he completed an application to the Repatriation Commission for acceptance of "anxiety/stressed" as war-caused. As the Tribunal noted in its reasons ( Re Cadd and Repatriation Commission [2008] AATA 69 at [18] ): The application is dated 18 March 2003 and includes comments that Mr Cadd ceased work on 28 February 2003 as a result of his resignation and that his claimed disability had resulted in behavioural problems which in turn had resulted in "finishing work". 9 A witness statement Mr Cadd provided to the Tribunal indicated that, between 2003 and 2006, he applied for employment without success. The statement listed a large number of primarily hotels and clubs which he approached for employment. He did not get a job nor, as he indicated in his evidence to the Tribunal, was he ever given a particular reason for this. In consequence, he accepted in cross-examination that he had not performed remunerative work since March 2003. By 2006 his applications included the advice that he was not able to work more than 8 hours per week because of his then medical condition. That advice to prospective employers reflected the opinion in a report of a psychiatrist, Dr Ewer, of 20 April 2005 that his impairments were such as to make him unfit for paid employment as he could not work eight hours per week. Dr Ewer diagnosed his overall impairment then as being 70 per cent attributable to PTSD and 30 per cent to Major Depressive Disorder. The same report indicated that the PTSD had "just emerged in the last year" and in 2005 should be considered as "temporary". 10 The medical evidence accepted by the Tribunal was that of Dr Ewer who provided some number of reports on Mr Cadd dating from 2003. As the Tribunal noted (at [21] of its reasons) those reports ... record diagnoses of changing conditions. Dr Ewer's report dated 8 April 2003 recorded diagnoses of pathological gambling and adjustment disorder with depressed mood. Dr Ewer's report dated 5 August 2003 again records diagnoses of pathological gambling, this time in remission, and alcohol dependence in remission. The same report records some features of PTSD, but states that Mr Cadd does not satisfy the diagnostic criteria necessary for PTSD. Dr Ewer's report of 8 April 2004 stated that Mr Cadd was suffering from a major depressive disorder. It also stated that Mr Cadd did not satisfy the diagnostic criteria for PTSD. It was not until his report of 20 April 2005 that Dr Ewer reported that Mr Cadd had developed a number of additional symptoms so that, as of 20 April 2005, Mr Cadd did satisfy the diagnostic criteria for PTSD. In his most recent report dated 17 July 2007 Dr Ewer addressed the issue of depression and its cause. He commented as follows: "The aetiology of his depression is probably multifactorial. His longstanding alcohol misuse probably contributed to him becoming depressed. His gambling losses were another substantial cause of his depression. His marital disharmony was another substantial cause of his depression. It is also probable that the emerging Post-Traumatic Stress Disorder symptoms contributed to his depression."


case_text: It is not contended by the applicant that the Tribunal misstated the inquiry it was required to undertake in applying s 24(1)(c) an inquiry which the Tribunal acknowledged was encapsulated in the four questions formulated by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200 ; (1997) 48 ALD 1 at 4-5 (which are unnecessary to repeat here). Suffice it to say that for present purposes it is only necessary to note the following: (i) The Tribunal acknowledged, correctly, that the relevant "remunerative work that the veteran was undertaking" for s 24(1)(c) purposes was a reference to the type of work the veteran had previously undertaken, and not to any particular job: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. Further the parties accept the Tribunal in this case correctly characterised that type of work in Mr Cadd's case as "a club manager". (ii) The Repatriation Commission conceded that Mr Cadd was prevented, because of his war-caused conditions, from continuing to undertake work as a club manager. The Tribunal found in accordance with Dr Ewer's evidence that from some stage during the assessment period (ie the period from the application day to the date when the application or claim was determined: VE Act s 19(9)) his PTSD disability alone would prevent employment for more than eight hours per week. (iii) In considering whether s 24(1)(c) was satisfied the Tribunal indicated the decisive issue was, as it is in this application, whether the exclusionary provisions of s 24(2)(a)(i) applied to Mr Cadd's circumstances. It held that it did.


case_title: Banovich v Repatriation Commission (1986) 69 ALR 395


case_text: For my own part, and conscious of the frame of mind to be brought to bear by a reviewing court in judicial review proceedings: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272; I am satisfied that on a fair reading of the Tribunal's decision it cannot fairly be said to have misapprehended and thus misapplied the test in s 24(2)(a)(i) of the VE Act. There can be no doubt that the Tribunal understood and asked itself the question required to be asked when considering whether in the circumstances a veteran ceased to engage in remunerative work for reasons other than his war-caused incapacity and disease. As the respondent correctly contends, the Tribunal addressed the evidence both medical and of Mr Cadd that related to that question. In light (i) of the events which occurred since he ceased to have remunerative work in February 2003, ie his persistent inability to get work; (ii) of his medical condition at February 2003 until the onset of PTSD in 2004; and (iii) of his own appreciation, albeit for the most part in retrospect, of his fitness for work (but compare his 18 March 2003 application noted by the Tribunal (at [13] of its reasons)), the conclusion that Mr Cadd ceased to engage in remunerative work for a reason other than incapacity from war-caused condition was one that clearly was open to it. 16 I accept, as I earlier indicated, that the reasons given for this conclusion were economically expressed but they are discernible. At best the appeal seeks a review on the merits of the Tribunal's decision. Such is not permissible. 17 I will order that the application be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 8 July 2008 Counsel for the Applicant: Mr N Swan Solicitor for the Applicant: Swan Lawyers Counsel for the Respondent: Ms S Maharaj QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 June 2008 Date of Judgment: 8 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1024.html


case_text: In relation to the first alleged ground of jurisdictional error, the appellant invoked generally the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, and in particular what was said by the High Court at [68] (McHugh J), and thereafter in the reasons for judgment of a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, and in particular what was emphasised by Allsop J at [216]. However the appellant did not invoke specifically or with precision the operation of the process required by s 424A(1) in the circumstances of this case, assuming that any such course was open for adoption. In that regard as Allsop J emphasised in the passage above cited, '[o]ne always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations', and further that '[t]he whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did...' . Those tasks were not undertaken by the appellant on the present appeal with precision or at all.


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214


case_text: It is not considered that s 78B(1) imposes any constraint upon this Court now determining the application for leave to appeal. Section 78B " contemplates ... a constitutional question which is a live issue in the proceedings ": Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 per Burchett J. The section " does not impose a duty on the Court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned " or in which a principle arising under the Constitution is asserted by a party: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396, [2004] ATC 4779 per French J. Any Constitutional issue sought to be raised by the Applicant is not considered to be a " live issue " in the proceedings.


case_text: Rather than considering that the decision of the primary judge may be attendant with some doubt such as to warrant it being further considered on appeal, it is considered that the decision of the primary judge was clearly correct. The primary judge was clearly correct in observing in the context of s 43(1) of the Crimes Act 1914 (Cth) that " none of the Defendants appears to have been acting ' in relation to the judicial power of the Commonwealth' ." His Honour was also clearly correct in observing that this Court is a statutory court and that such jurisdiction as is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) is subject to an exception, namely jurisdiction to entertain a matter arising under a law made by the Parliament " other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter ". The expression " criminal matter " is to be given its traditional meaning: Commonwealth of Australia v Lyon [2003] FCAFC 284 at [50] , [2003] FCAFC 284 ; 133 FCR 265 at 277 8. The proceedings sought to be pursued by the " Prosecutor " clearly fell within the concluding words of s 39B(1A)(c). 8 It should further be noted that an Affidavit filed in support of the application asserts ( inter alia ) that "[t] he Judge has displayed a continual legacy of Bias " and an assertion that " The Judge has opted out of Judicial accountability by passing out risponsabilty [sic] to the fact that he refused to hear the proceedings before him in order to further pervert the course of Justice ". There is no basis for any such assertion. A litigant who is unrepresented may understandably feel a sense of disgruntlement when losing a case, being circumstances in which a legal representative is not available to explain why proceedings should never have been commenced or why an argument did not prevail; but an unrepresented litigant has no licence to make unfounded assertions. 9 At the outset of the hearing of the application for leave to appeal, the Applicant sought an adjournment of the hearing in order to enable a notice to be given pursuant to s 78B of the Judiciary Act 1903 (Cth). Section 78 provides that: (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. The Summons as filed refers to what is identified as the " Kable Principle " and further refers to "[p] erverting the Course of Justice by making representations not specifically defined in the Crimes Act 1914 (Cth) in respect of the Judicial Power of the Commonwealth ".


case_title: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918


case_text: The discretion conferred by s 24(1A) is an " unfettered discretion " and is in " unqualified terms ": Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399. Relevant to the exercise of the discretion, however, is whether the decision of the primary judge is attendant with sufficient doubt to warrant it being considered on appeal and whether substantial injustice would result if leave were refused.


case_text: The application presently before the Court is a Notice of Motion seeking leave to appeal and was filed on 14 April 2008. Leave is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because an order for the dismissal of proceedings for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties: Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3] . Whatever other rights the present Applicant may have as against the " Defendants " remain and are not affected by the decision now in issue.


case_text: On 13 March 2008 a judge of this Court dismissed proceedings commenced by the present Applicant: Vescio v Honourable John Hatzistergos (NSW Attorney General) [2008] FCA 332. 2 Those proceedings were commenced by the present Applicant as " Prosecutor ". The " Defendants " included members of the Parliament of New South Wales, the President of the New South Wales Guardianship Tribunal, the Protective Commissioner, the New South Wales Public Guardian and the Public Guardian Regional Officer. 3 The " Prosecutor " alleged that acts by some or all of the " Defendants " perverted the course of justice and constituted offences under s 43(1) of the Crimes Act 1914 (Cth). That subsection provides as follows: (1) Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.


case_text: The applicant prayed in aid of its statement of claim an observation by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 where his Honour said (at [5] [6]): In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly, the exchange of written submissions. Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met. 4 The definition of issues generally does not occur as a result of the preparation of the trial bundle or the exchange of witness statements or expert reports. It may emerge from the exchange of written submissions but absent pleadings or a statement of facts and contentions or issues that is very late in the day. The invocation, by counsel for the applicant in this case of a "robust approach" does not avail to sustain a statement of claim which obscures rather than clarifies the issues in the case. 5 What follows is an outline of the broad content of the amended statement of claim which does not descend into its near fractal detail. The allegations are set out in a narrative form. They are only allegations. The summary does not involve any finding by the Court. 6 Wainter Pty Ltd (Wainter) sues Freehills, a firm of legal practitioners and one of its partners, David Woolfe. It also sues Peter Malone, a director of New Tel Ltd (New Tel) which carried on the business of providing telecommunications primarily in the way of mobile phone services. Wainter names, albeit not as a respondent, Paul Evans, who was a director of New Tel from 27 September 1996 to 16 August 2001. From 23 June 2000 he was a partner in Freehills. Another person named as a director of Wainter after 10 September 1996 is Barry Granville Waller (s/c 1-6). 7 Between September 2001 and January 2002 Wainter owned 35 million shares in Cable & Telecoms Ltd (C & T). It also had 20 million options to acquire shares in that company. Its shareholding represented 39.8% of issued C & T shares and about 55.7% of issued C & T options. On or about 11 April 2000 Wainter agreed to sell to C & T all of its shares in UDC Group Pty Ltd. This was constituted by a document dated 11 April 2000. It was later amended. The parties to it were Wainter, C & T, Barry Waller and Christine Margaret Waller (s/c 8 and 9).


case_text: J ordered that Mr Siminton's application be dismissed with costs on 6 October 2006. His Honour gave reasons for that decision in the form of a "ruling" delivered on that same day: Australian Prudential Regulation Authority v David Robert Siminton (No 4) [2006] FCA 1339. He noted that a number of the matters raised by Mr Siminton had been agitated before another judge of this Court, Merkel J, earlier this year: Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336. However, Tracey J also noted that Mr Siminton had raised what his Honour described as a "novel complaint", namely that the proceeding had been brought unconstitutionally because it was said to provide for the acquisition of Mr Siminton's property by APRA, or the Commonwealth, without just terms. Tracey J set out his reasons for dismissing Mr Siminton's application at [3]-[8] of his ruling. He rejected the contention that the various interlocutory processes engaged in by APRA constituted evidence of a collateral purpose which rendered the proceeding an abuse of process. He noted that the constitutional argument had not been raised in Mr Siminton's defence to the proceeding. He declined to deal with the merits of that argument, saying simply that if it had any substance, it could be raised at the trial. Finally, his Honour rejected a submission that there was "no evidence" to support the allegations made by APRA, noting that this same claim had been made before Merkel J, and failed. When it was said by Mr Siminton that APRA had not, in the intervening period, supplied evidence to fill the void that allegedly existed in its case (namely, the lack of any evidence to demonstrate that Mr Siminton had carried on a "banking business" as defined in s 5 of the Banking Act 1959 (Cth)), his Honour replied that APRA was not under any obligation to supply such evidence. The time for it to be supplied would be when the matter was being readied for trial. If it turned out that there was no evidence to support APRA's claims, Mr Siminton could then move for summary judgment. I have been provided with a draft notice of appeal upon which Mr Siminton proposes to rely if leave to appeal is granted. It raises what Tracey J described as the "no evidence" ground. However, it also contends that his Honour erred in construing s 65A of the Banking Act , and, in addition, raises the s 51(xxxi) constitutional ground. It was submitted by Mr Sharp, who appeared on behalf of Mr Siminton this morning before me, that leave to appeal should be granted because Tracey J had erred in rejecting the "no evidence" ground. Mr Sharp referred to a "concession" by counsel for APRA before Sundberg J, who granted the original interlocutory injunction in this matter in December 2005, that APRA at that time had no evidence of any actual lending by Mr Siminton's "bank", but only evidence of an intention to lend in the future. It was submitted that there could not be a contravention of s 7 of the Banking Act without both receipt of depositors' money, and lending of that money. In response, Mr Hibble, on behalf of APRA, submitted that APRA had evidence of lending, and would produce that evidence in accordance with any timetable laid down by Tracey J. He submitted that Mr Sharp's application was premature, and that whatever may have been said to Sundberg J, in the course of an urgent application for interlocutory relief, should not be regarded as APRA's actual position in the primary proceeding. In my view, Tracey J's conclusion that this issue should await the filing of evidence by APRA was not attended with sufficient doubt to warrant the grant of leave to appeal. Indeed, I consider that conclusion to be plainly correct. APRA has pleaded, in paragraph 5(a) of its Statement of Claim, that between January 2004 and "the present" Mr Siminton "has loaned money to members of the public", as well as pleading in paragraph 5(b) that he had "stated an intention to loan money to members of the public". If APRA cannot produce evidence to support the allegation contained in paragraph 5(a), that may mean that its claim against Mr Siminton for having contravened s 7 of the Banking Act will fail, and that point can be addressed by way of an application for summary judgment. However, at this stage, it would be quite wrong to stay or dismiss this proceeding simply because APRA has not yet produced this evidence. Mr Sharp submitted that APRA had been under a duty not to plead facts for which there was no evidence available. That states the principle too narrowly. The duty is not to allege facts unless there is a proper basis for making that allegation. A genuine belief, on reasonable grounds, that admissible evidence will be forthcoming to support an allegation can be sufficient to justify its being made. I am not persuaded that there is an adequate basis for inferring some impropriety on the part of APRA in its early pleading in this matter. Mr Sharp's submission regarding the proper construction of s 65A , and particularly the term "damages" in s 65A(11) , seems to me to be without merit. I see no reason why statutory damages of the kind contemplated in that provision should not encompass restitution of monies paid by depositors who were misled by Mr Siminton's use of the term "bank" in connection with his business. That is not to say that any such depositors were misled. It may be, as Mr Sharp submitted, that they all went into this venture with their eyes entirely wide open. If that is so, the assurances given by APRA regarding the ultimate disposition of the funds presently frozen provide adequate safeguard for Mr Siminton's interests, as well as those of participating depositors. Mr Sharp's constitutional argument may, or may not, have merit. I agree with Tracey J that the time for that argument to be raised is after the affidavits have been filed, and all interlocutory processes have been completed. There should be a proper defence drawn, relying upon s 51(xxxi), and proper opportunity for submissions. At this stage, I am not persuaded that Tracey J's approach to this issue was attended with any error. Accordingly, I would not grant leave to appeal on this point. Nor would I grant leave to appeal upon the basis of the matters raised by an offer made by Mr Siminton to settle the proceeding on terms set out in a letter dated 30 August 2006. APRA's rejection of that offer in no way renders the primary proceeding an abuse of process. It follows that I would refuse leave to appeal from Order 1 of the Orders made by Tracey J on 6 October 2006, dismissing Mr Siminton's notice of motion dated 27 September 2006. I should add that Mr Sharp also sought to agitate the correctness, or otherwise of a further order made by Tracey J on 6 October 2006, requiring Mr Siminton to report to the Nunawading Police Station each Thursday between 9 am and 5 pm commencing on 12 October 2006. That order was not the subject of the formal application for leave to appeal before me today. However, APRA did not object to my dealing with Mr Sharp's challenge to that order. Indeed, APRA indicated that it did not object to my vacating the order entirely, having regard to the fact that Mr Siminton presently is not facing any charge of contempt, and is not in immediate danger of imprisonment. In those circumstances, I am prepared to vacate that order, and will do so. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 25 October 2006 Counsel for the Applicant: Mr D Sharp Solicitor for the Applicant: Erhardt & Associates Counsel for the Respondent: Mr S Hibble Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 25 October 2006 Date of Judgment: 25 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1398.html


case_text: J ordered that Mr Siminton's application be dismissed with costs on 6 October 2006. His Honour gave reasons for that decision in the form of a "ruling" delivered on that same day: Australian Prudential Regulation Authority v David Robert Siminton (No 4) [2006] FCA 1339. He noted that a number of the matters raised by Mr Siminton had been agitated before another judge of this Court, Merkel J, earlier this year: Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336. However, Tracey J also noted that Mr Siminton had raised what his Honour described as a "novel complaint", namely that the proceeding had been brought unconstitutionally because it was said to provide for the acquisition of Mr Siminton's property by APRA, or the Commonwealth, without just terms.


case_text: principles upon which leave to appeal from an interlocutory judgment will be granted are clear. They are set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.


case_text: No question arises in the present proceedings of the Tribunal ascribing to particular information provided by an applicant a significance or relevance of which an applicant may have been unaware: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [26] [28], [2004] FCAFC 123 ; 206 ALR 471 at 477 8 per Finn and Stone JJ. And no question arises as to a particular significance or relevance being attached to " information " provided to the Tribunal, as opposed to " information " provided for the purposes of the visa application: Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 , 110 FCR 27. The " reason " for the Tribunal's decision was simply the inadequacy of any of the materials provided by the now Appellant. The Tribunal thus concluded: The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is "well founded" or is for the reason claimed. It remains for the first named applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making the relevant facts of the individual case will have to be supplied by the applicants themselves in as much detail as is necessary to enable the decision maker to establish the relevant facts. The Tribunal is not required to make the applicants' case for them. Nor is the Tribunal required to accept uncritically any and all of the allegations made by applicants. ( MIEA v Guo & Anor [1997] HCA 22 ; (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470 ; (1992) 38 FCR 191 , Prasad v MIEA [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70.) The first named applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the first named applicant who the "antisocial elements' were that threatened him, when he was threatened, how he was threatened, whether he reported the threats to the police and, if so, what action the police took, who the people were he suspects attacked him, when he was attacked, how he was attacked, whether there were any witnesses present, whether he reported the attack to the police and, if so, what action the police took, whether he had considered relocation within India and what is likely to happen to him if he were to return to India in the foreseeable future. The information that the first named applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution. Further the Tribunal has not been able to discuss with the first named applicant independent country information which may be relevant to his particular claims. In these circumstances the Tribunal is unable to be satisfied that the first named applicant has a well founded fear of persecution for reasons of his political opinion or any other Convention based reason.


case_title: SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24 , 228 CLR 294

case_text: First, the " certain adverse information used by the Tribunal " has not been identified. The proceedings before the Tribunal did not involve, as do many applications for review, an assessment of competing accounts of factual events. The Tribunal in the present proceedings had limited information available to it and, recognising that there was no onus of proof upon the now Appellants, simply concluded that: ...The information that the first named applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution. Section 424A , it may be accepted, imposes a mandatory requirement: SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294. But no breach can be established unless the particular " information " which it is claimed needs to be the subject of an invitation to comment upon or respond to can be first identified. 10 The First Appellant appeared unrepresented before this Court this morning but did have the benefit of an interpreter. Other than expressing a desire to stay longer in Australia, he provided no assistance as to the " certain adverse information " to which his Notice of Appeal refers. Indeed, it was unclear whether the complaint was directed to the use of information already provided or whether the complaint was more directed to the lack of an opportunity to provide further information. If the latter, it is considered that adequate opportunity has already been extended in which to provide information. 11 Second, the " information " considered by the Tribunal and the " information " which it ultimately considered did not make out the Applicant's case was that in fact supplied by the Applicant. Such " information " is not " information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review " within the meaning of s 424A(1)(a).


case_title: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 , 235 ALR 609

case_text: The contents of such " information ", as was observed in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17] , [2007] FCA 26 ; 235 ALR 609 at 615 by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, " if ... believed ... would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review ." Moreover, it was the inadequacy of the materials provided by the now Appellants that was the " reason " for the Tribunal's decision. Where it is the Tribunal's " disbelief of the appellant's evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1) ": SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616.


case_text: No question of any breach of s 424A , in such circumstances, arises for resolution: SZIDH v Minister for Immigration & Citizenship [2007] FCA 369. In the present case, as in SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78: [23] ...the Tribunal was identifying the deficiencies or inadequacies in the appellant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1)....