case_text: What must be determined is whether against this factual background, the pipelines were constructed on behalf of NTEC. The expression "on behalf of" has no fixed legal meaning: see R v Toohey; ex parte Attorney General (NT) [1980] HCA 2 ; (1980) 145 CLR 374 at 386. It may be used when speaking of an agency relationship or the relationship of trustee and beneficiary but can be used in relation to quite ephemeral relationships. The expression's meaning will be substantially determined by context. In my opinion, the expression "on behalf of" is, in context, intended to comprehend the construction or establishment of a public work where its construction or establishment is done by the Crown or an emanation of the Crown indirectly rather than directly. That is, the work is constructed by a person or body for the Crown or an emanation of the Crown.


case_outcome: applied

case_text: It is convenient at this point to address Yarabala's position, as embodied in the written submissions it ultimately relied on. Yarabala's position appeared to be that the non-exclusive native title rights and interests claimed in respect of the land and waters subject to the current pastoral leases were not native title rights and interests within the meaning of s 223(1)(a) of the NTA. Yarabala's submissions were brief and not easy to follow. As I understood them, however, its submissions were not consistent with now settled principles concerning the construction and application of the NTA. Yarabala submitted that the applicants' evidence established that the traditional laws and customs of the applicants did not now, and never had, comprehended anything less than exclusive rights, and the evidence did not show that the traditional customs observed had evolved to accommodate such a qualification. Yarabala characterised the applicants' argument as being that if one or more of the rights and interests in the bundle comprising native title was partially inconsistent with the valid grant of inconsistent rights, then the remnant was a partially extinguished native title right and interest. Yarabala submitted that such a case could not succeed, firstly because the idea of degrees of inconsistency had been rejected by the High Court in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (" Ward HC " ) , and secondly, because the applicants' evidence did not establish that the non-exclusive rights and interests claimed in relation to the current pastoral leases were possessed under traditional laws and customs. 44 I do not propose to deal with Yarabala's submissions at length. For the reasons the applicants have given in their written submissions, Yarabala's submissions should be rejected. They involve an unsupportable amalgam of concepts concerning the content of traditional laws and customs and the nature of rights which might be capable of recognition under the NTA. In so far as Yarabala invited precision in relation to the claim area, that will, I apprehend, be achieved. To the extent that I am being invited by Yarabala to express conclusions about the existence or otherwise of rights and interests which might be recognised under the NTA in relation to areas outside the claim area, it is inappropriate for me to do so. The scope of these proceedings and the path they have taken flowed from procedural orders made on earlier occasions (see [29]). It was too late for Yarabala to seek to alter the course of the proceedings. 45 NT Gas filed points of response and took an active role in the proceedings. The position of NT Gas was that its interests in the claim area wholly extinguished native title in the relevant areas. Its submissions are considered under "Issue 4: extinguishment public works land". 97 The applicants then proposed an alternative formulation which they submitted better accorded with the evidence than the claimed right as originally expressed. The reformulation was a "right to light fires on the non-exclusive areas for domestic purposes". The applicants contended that this embraced the domestic purposes of cooking, heating and lighting, but would not cover burning off country and was not inconsistent with the rights under the pastoral leases. Further, the applicants submitted that laws like the Bushfires Act 1980 (NT) did not prohibit the lighting of fires for any of the purposes contemplated by the claimed native title right. Relying on Ward HC (at [26]), the applicants submitted that native title was not extinguished by the existence of statutory powers which if exercised would do no more than regulate the exercise of the native title right without abrogating it, and that although powers in Part III of the Bushfires Act might regulate the exercise of the claimed right, they did not extinguish it. Yarabala resisted this argument and submitted that this was not a regulation of the type contemplated by the High Court in Ward HC . 98 There existed a minor area of contention between the applicants, on the one hand, and the Northern Territory and the Pastoralists on the other, concerning this right. The issue concerned what the claimed right as formulated did and did not comprehend. Relying on Ward HC , the Northern Territory and the Pastoralists submitted that there could be no native title right to burn country. They contended that any right to light fires other than for purposes of cooking, heating and light, was inconsistent with the grant of a pastoral lease. The uncontested evidence, which I accept, was that not only were fires used for cooking and heating but for other purposes which included burning bark for domestic purposes, boiling foliage for medicinal purposes and manufacturing nulla nullas. These purposes are adequately described by the simple formulation proposed by the applicants, namely "domestic purposes". Indeed, the use of the catch all, "other domestic purposes", in the Northern Territory's and the Pastoralists' formulations would, as a matter of construction, extend the right to cover all domestic purposes. That is what the applicants proposed. The applicants' formulation is to be preferred in describing what the right comprehends. 99 It was accepted by counsel for the applicants that on the evidence there was no right to set alight vast grasslands in order to regenerate the country or as an aid to hunting. Indeed, no such right had ever been claimed. However, there appeared to be no dispute that, as I was informed by senior counsel for the Northern Territory, in other Aboriginal societies in the Northern Territory, fires are used for these purposes. The expression "domestic purposes" might be viewed as comprehending such activities and it is, on balance, desirable that it be made clear that the right does not extend to such activities. Accordingly, it is appropriate to include the words "but not for the clearance of vegetation". 105 Counsel for the applicants submitted that the claimed right did not involve an assertion of a right to control access and exclude others from the land. It was submitted that a contention that the claimed right did or might involve such an element had been rejected in two judgments of the Full Court of this Court, being Ward FC (at [24]-[25]) and Alyawarr (at [136]-[140]). There is little room to doubt that this is correct. On the assumption that I accept, which I do, that these authorities establish that a right expressed in the terms proposed by the applicants does not involve an assertion of a right to control access and exclude others from the land, the Northern Territory did not press its contentious words of qualification or clarification. However, the Pastoralists did press the issue. In view of what has now been said by the Full Court on two occasions, it is inappropriate that words of qualification or clarification be included when they are demonstrably unnecessary. 106 The Northern Territory agreed with this claimed right, subject to the inclusion of the clause referred to at [27]. The Pastoralists opposed the inclusion of this claimed right in its entirety. The Pastoralists contended that rights to trade, share or exchange were not rights in relation to land and therefore not recognisable by the common law. The issue was pressed only to preserve the right to argue the matter on appeal, and they acknowledged that the Court was bound to reject the submission on the basis of the Full Court's decision in Alyawarr . 107 The issue concerning this right can be dealt with briefly. I reject the Pastoralists submission, as they accepted I was bound to, that the claimed right was not one in relation to land. 114 There was no real issue about the applicable principles. They can be gleaned from the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC (at [219]-[221]). The designation of land as a reserve for certain purposes does not, without more, create any right in the public or any section of the public which by reason of inconsistency extinguished native title rights and interests. Whether a particular native title right continued in existence or was extinguished depended upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive. In the present case it is sufficient to focus on the circumstances which existed in 1971 which had been brought about by the initial reservation and the approval of the land as a depot for depositing garbage. Those circumstances were that the land was reserved for a public purpose namely as a garbage reserve and, it can be inferred, garbage from the township was to be deposited in the reserve. Both a right to deposit garbage and an implied obligation to do so been created by that time. The question then was whether this was consistent with the continuation of the native title rights agreed or determined in this matter. 115 In my opinion, the creation of a right to deposit garbage coupled with an implied obligation on third parties to do so involved an assertion of a power to determine how the land should be used which was inconsistent with the continuation of what might be described as some of the core native title rights in this matter such as to travel over, move about and have access to the land, to hunt and fish, as well as to live on the land. The power was exercised for the purpose of the land being used as a garbage dump. Its use in this way would inhibit, and probably significantly, the exercise of the rights just described. The assertion of the power concerning use was inconsistent with the continuation of those rights and they were extinguished. 116 The issues that arose in respect of the land in the claim area subject to historical and current non-exclusive pastoral leases were: 1. whether or to what the rights granted by historical pastoral leases over NT Portions 797, 851, 908, 2093, 4232, 4273, 4274 and the town of Newcastle Waters were inconsistent to any extent with the claimed native title rights; 2. in relation to NT Portions 851, 908 and 2093 presently held under pastoral leases, the extent to which the claimed native title rights were extinguished by the construction of improvements.


case_outcome: referred to

case_text: The Northern Territory and the Pastoralists contended that the Full Court's decision ought not be followed, for two reasons. Firstly, it was said that the pastoral leases in Alyawarr were not current leases under which pastoral activities were occurring, and secondly, the decision of the Full Court was attended by error. The applicants submitted that the contention that the Full Court had erred could not be maintained because the decision was binding authority. Further, they submitted that Alyawarr could not be distinguished on the basis advanced by the Northern Territory because the relevant inquiry was about inconsistency of rights, not activity. Further, in Alyawarr (at [218]-[227]), the same arguments about a right to live on land were advanced in relation to a current Crown lease, and were rejected. The Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose (No 2) ") had also recognised a similarly worded right in relation to lands which had been continuously subject to pastoral leases for over 60 years and remained so at the time of trial and determination. The applicants also submitted that the qualification proposed by the Northern Territory and the Pastoralists suggested a right on the part of the lessee to exclude the native title holders should they remain on the land any longer than "temporarily", which was contrary to the principle that pastoral leases did not confer a right to exclude native title holders from the land established in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik ") at 120-121, 146-147, 154-155, 190-195, and Ward HC (at [179]-[186] and [417]).


case_outcome: cited

case_text: The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2 nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage.


case_title: Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677


case_text: I should apply The 'Antonis P Lemos' in this regard. All the reasoning of Lord Brandon is equally applicable to s 4(3)(f). I would only add the following remarks. Given the need for the 1952 Convention to apply to a wide variety of legal systems and given the capacity of maritime claims to arise by reference to chartering and carriage arrangements often of some complexity, it would make little practical sense to limit the types of claims to which this paragraph was directed to contractual claims between parties to the agreement. Secondly, the provision is one in which jurisdiction is given to a court. It should be read liberally: The 'Shin Kobe Maru' 181 CLR at 421. Thirdly, The 'Antonis P Lemos' was recently applied by a Full Court of this Court, though in a different context: that of construing an arbitration clause containing the phrase "arising out of", in Comandate Marine v Pan Australia Shipping Pty Limited [2006] FCAFC 192 ; (2006) 157 FCR 45 at 89 [171] . The Full Court, though in that different context, gave the same wide meaning to the phrase "arising out of"': Comandate Marine v Pan Australia 157 FCR at 87-91 [162]-[176]. 41 Thus, for these reasons, the fact that the plaintiff's claim is in tort and bailment does not mean that it cannot arise out of an agreement of the character described in s 4(3)(f). 42 Lord Brandon then went on to reject the second contention of the owners propounded by Mr Saville QC, that even if claims in tort were covered, only those which were "directly connected" with an agreement covered by the provision (that is one that related to the carriage of goods in a ship) and that such agreement was one between the plaintiff and defendant. His Lordship rejected this argument for the reasons Parker LJ had rejected it in the Court of Appeal: see, in the Court of Appeal, [1985] AC at 715-720, and in the House of Lords, [1985] AC at 732. That reasoning and Lord Brandon's reasoning and conclusions on both contentions permit the following to be stated: the claim which may be non-contractual need only arise out of, in the sense of be connected with, some agreement having the relevant relationship with the carriage of goods in a ship (or other relational fact in s 4(3)(f)) even if that agreement is one to which the plaintiff is not a party. Thus, in The 'Antonis P Lemos' the claim in tort could be seen to arise out of, that is be connected with any and all of the sub-sub-voyage charter, the sub-time charter and the head time charter.


case_text: Jurisdiction is conferred upon the Court in respect of proceedings commenced (as this one was) as actions in personam on a maritime claim: s 9(1)(a) of the Act. As to the maritime jurisdiction conferred on the Court by the Act, see Elbe Shipping SA v The Ship 'Global Peace' [2006] FCA 954 ; (2006) 154 FCR 439 at 451-460 [53] - [76] . The fact that the events took place in the United Kingdom does not affect the question of jurisdiction. The Act confers jurisdiction irrespective of the place where events took place: s 5 of the Act, " all maritime claims, wherever arising" ; see this respect The 'Global Peace' 154 FCR at 454 [58].


case_text: Mr Cutler argued that the correct approach to the interpretation of s 4(3)(f) could be found in Port of Geelong Authority v The 'Bass Reefer' (1992) 37 FCR 374 at 380-82 in which case Foster J adopted the approach of Lord Keith of Kinkel in Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co [1985] AC 255 at 270-71 and said that the relationship connoted by the words "that relates to" in s 4(3)(f) must be "some reasonably direct connection". The same passage from Lord Keith's speech in Gatoil [1985] AC at 270-71 was cited with apparent approval by Gummow J in Empire Shipping Company Inc v Owners of the Ship 'Shin Kobe Maru' (1991) 32 FCR 78 at 95 (at first instance). 27 These submission are answered by the proper application not only of Gatoil [1985] AC 255, but also of Samick Lines Co Ltd v Owners of the 'Antonis P Lemos' [1985] AC 711. Two phrases in s 4(3)(f) are central to understanding the reach of the provision in the circumstances here: " a claim arising out of an agreement" and " that relates to the carriage of goods... by a ship ". The former was the subject of consideration in The 'Antonis P Lemos' [1985] AC 711, the latter in Gatoil [1985] AC 255. 31 The ALRC Report made reference to both Gatoil (at [168] and [173] of the ALRC Report) and The 'Antonis P Lemos' (at [146] and [169] of the ALRC Report). No particular assistance is obtained from the discussion of these cases in the Report. The ALRC did recommend, however, in the context of these cases, that the proposed head of jurisdiction (s 4(3)(f)) follow the language of the Supreme Court Act 1981 (UK) (the "1981 UK Act"), s 20(2)(h), which was the provision dealt with in The 'Antonis P Lemos' and which was the successor provision to the Administration of Justice Act 1956 (UK) (the "1956 UK Act"), ss 1(1)(h) and 47(2)(e), being the relevant provisions dealing with England and Scotland, respectively, discussed and dealt with in Gatoil. 32 Section 4(3)(f) did follow, though not precisely, the language of the 1981 UK Act, s 20(2)(h). That section was as follows: "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship" 33 The 1956 Act, ss 1(1)(h) and s 47(2)(e) were in the following terms: s 1(1)(h): "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of hire of a ship;..." s 47(2) Any claim arising out of any one or more of the following: ... (e) any agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;..." 34 It is also important for the application of the principles attending construction of the Act to which I have referred to understand that the provisions in the 1956 UK Act (and, through it the 1981 UK Act) were passed to enable the United Kingdom to ratify and to comply with its international obligations under the 1952 Convention: The 'Eschersheim' [1976] 1 WLR 430 at 434 (per Lord Diplock) and Gatoil [1985] AC at 266 (per Lord Keith). Article 1(1) of the 1952 Convention contained the following as part of the list of "maritime claims": "Maritime claim" means a claim arising out of one or more of the following: ... (d) agreement relating to the use or hire of any ship whether by charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; ... 35 Thus, both Gatoil and The 'Antonis P Lemos' can be seen as unanimous decisions of the final court of appeal in the United Kingdom interpreting domestic legislation having its origins in an international convention, one aim of which was to bring uniformity of approach among different legal systems. The existence of those decisions, the desirability of international uniformity, or at least broad consistency, and an expressed suggestion by the ALRC (which was heeded) that Parliament follow the wording of the 1981 UK Act, which had been (recently) interpreted (as well as the antecedent provision in the 1956 UK Act) by the House of Lords in Gatoil and The 'Antonis P Lemos' necessarily constrain the interpretation of s 4(3)(f), certainly at first instance. Further, two judges, of this Court (Foster J in The 'Bass Reefer' and Gummow J in The 'Shin Kobe Maru' ) at first instance have applied Gatoil. 44 The next question is whether any one or more of these agreements answers or answer the description of " an agreement that relates to the carriage of goods... by a ship ", as that phrase was interpreted by the House of Lords in Gatoil. 45 In Gatoil [1985] AC 255 Lord Keith of Kinkel (with whose speech Lords Fraser of Tullybelton, Scarman, Wilberforce and Roskill agreed) concluded that the phrase "related to" should not be construed widely, but rather there should be "some reasonably direct connection" with the activities described in the provisions (there ss 1(1)(h) and 47(2)(e) of the 1956 UK Act). 47 It is also to be noted that the limited approach to the construction of the provision in Gatoil was put forward to the House in The 'Antonis P Lemos' as a reason for narrowly construing the phrase "arising out of" in s 20(2)(h). Lord Brandon dealt with this principally by recognising the textual importance of "arising out of" in the 1952 Convention and demonstrating the clearly unintended consequences of giving that phrase a narrow meaning there and in all the places in the 1956 UK Act and 1981 UK Act where the phrase appears. 48 It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what " tilted the balance in favour of giving a narrow meaning to the expression 'relating to '" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil . 50 For the reasons that I have earlier given, however, it is not appropriate that, sitting at first instance, I do other than apply Gatoil . Further, in what might be said to be in support of a wide construction of "arising out of" and a narrower approach to "relates to", the former expression should be wide to catch all claims that have a connection with an agreement that has the appropriate maritime connection or character. The appropriate maritime connection or character for s 4(3)(f) might be seen to be assisted by the recognition that all the general maritime claims in Article 1 of the 1952 Convention and in s 4(3) are expressed to be the foundation of an action in rem against a ship and to found the remedy of arrest. The relational connection in the phrase "that relates to" is to be seen in that context. It also may be important to see the appropriate maritime connection by reference to the Constitutional reach of s 76(iii). Section 4(3) must at all times be construed within the confines of the Constitutional authority given to Parliament: cf the Acts Interpretation Act 1901 (Cth), s 15A. 51 Approaching the matter by applying Gatoil , does or do any one or more of the agreements referred to in [43] above have a reasonably direct connection with the activity of carriage of goods by a ship and thereby "relates or relate to the carriage of goods by a ship" for s 4(3)(f)? 52 The answer, it seems clear to me, is "yes". As to the first agreement posed, that between the defendant and Planetwide, that agreement was essential to the performance of the sea carriage. The cars had to be loaded into the shipping container in preparation for sea transport. That is what the defendant undertook to do. The loading of the container was, in substance, for the sea carriage. Although the Planetwide bill was not issued until 12 August 2003, it can be concluded that the agreement between Planetwide and the defendant was in fact to perform obligations which (on the evidence, later) Planetwide undertook in the Planetwide bill to undertake as carrier. The agreement to load the shipping container between the arranger of the carriage and its subcontractor had a reasonably direct relationship with the carriage of goods by the ship.


case_text: The second consideration is that provisions conferring jurisdiction or granting powers to courts should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' 181 CLR at 421 and see the numerous other High Court authorities to like effect referred to in Hewlett Packard Australia Pty Limited v G E Capital Finance Pty Limited (2003) 135 FCR 200 at 264 [187].


case_text: The Planetwide bill was expressed to be negotiable. If it had been negotiated (which it does not appear to have been) it may be that its terms evidenced the contract of multimodal transportation between Planetwide and the third party. Here, there is no satisfactory evidence as to the terms of any contract between Planetwide and Mr Seymour (or the plaintiff) at the time the car was delivered to the defendant and damaged: cf Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402 at 413-414; Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288 at 295; Hines Exports Pty Limited v Mediterranean Shipping Co [2000] SADC 71 ; and see generally Davies M and Dickey A Shipping Law (3 rd Ed) at 195-196.


case_outcome: followed

case_text: It is, of course, necessary to deal with jurisdiction first: Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 at 289-90 [13] - [14] . Before coming to s 4(3) of the Act it is necessary to set out what the evidence discloses of the facts. It should be said at the outset that the issues have been canvassed without a trial and on interlocutory evidence (some of which was unsatisfactory and inadmissible). 6 The jurisdiction of the Court is conferred by laws of the Commonwealth Parliament. The Court only has jurisdiction here if the plaintiff's claim is a general maritime claim under the Act, such that the claim for damages in bailment and tort can be seen as a claim in federal jurisdiction, in the exercise of the Court's Admiralty and maritime jurisdiction, having its source in s 76(iii) of the Australian Constitution . 7 The evidence is sufficient for me to conclude that the Court has jurisdiction on the basis that the plaintiff's claim is a general maritime claim of the legal character set out in s 4(3)(f) of the Act, being a claim " arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise ".


case_text: There would be a number of difficult questions that would arise if one could be clear about what terms governed the relationship between Planetwide and the defendant. It is unclear in Australia whether The 'Pioneer Container' is applicable to quasi-bailment as distinct from true sub-bailment where the bailee, sub-bailor obtains possession, before the sub-bailment: cf Mathew Short & Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281. Secondly, it is unclear on the evidence that the plaintiff consented to the terms of the sub-bailment. It is certainly not possible on the evidence to conclude that any terms of the defendant directly bound the plaintiff from anything that passed to or from him, or Mr Seymour.


case_outcome: discussed

case_title: Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 114 (2004)

case_text: The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2 nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage. 55 Whilst there was no argument about the reach of s 76(iii) of the Constitution before me (as there could not have been without the issue of notices under the Judiciary Act 1903 (Cth), s 78B) , I am fortified in my conclusion that the circumstances here fell within s 4(3)(f) and thereby necessarily within the reach of s 76(iii) by reference to Norfolk Southern Railway Co v James N Kirby Pty Limited 543 US 14. There the Supreme Court was under no doubt that a dispute arising from a freight forwarder's contract for combined land and sea transportation (the accident happening during railroad carriage in the United States) was part of maritime jurisdiction for Art 3 sec 2 of the United States Constitution (in identical terms to s 76(iii)). See in particular at 543 US at 26 for a discussion and rejection of the lower federal courts decisions spatially dividing multimodal transport. 56 The claims for summary dismissal and stay are both based on the asserted clear incorporation into the relationship between the plaintiff and the defendant of terms that provide for a time bar period that has been exceeded, or an exclusive jurisdiction clause nominating the courts of England as the only forum.


case_text: The third consideration is a particular aspect of the importance of the context provided by the ALRC Report. In Owners of MV 'Iran Amanat' v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 138 the High Court in a joint judgment (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) stressed the importance of the background of English legislation and authority and any settled international construction: The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances. ...


case_text: The relevant question to address is whether the assertions of right or interest recognised by law and carrying an entitlement to relief made by the plaintiff in the application and statement of claim (being the claim of the plaintiff) have (and has) the legal character of that which is set out in s 4(3)(f): Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 422 and 426; and The 'Global Peace' 154 FCR at 459-60 [73]-[76]. 23 This task is to be undertaken with the meaning and content of s 4(3)(f) understood. 24 Mr Cutler for the defendant submitted, in a careful and clear argument, that the claim of the plaintiff did not "arise out of an agreement that relates to the carriage of goods by a ship". First, he stressed that the events in question concerned the loading of the container prior to the land leg of the transportation the carriage to Tilbury. The liability was not said to arise from any contract under which sea carriage would occur. The defendant was merely the sub-contractor of Planetwide, which caused damage to the goods while loading the container 30-40 kilometres from the port.


case_text: Mr Cutler argued that the correct approach to the interpretation of s 4(3)(f) could be found in Port of Geelong Authority v The 'Bass Reefer' (1992) 37 FCR 374 at 380-82 in which case Foster J adopted the approach of Lord Keith of Kinkel in Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co [1985] AC 255 at 270-71 and said that the relationship connoted by the words "that relates to" in s 4(3)(f) must be "some reasonably direct connection". The same passage from Lord Keith's speech in Gatoil [1985] AC at 270-71 was cited with apparent approval by Gummow J in Empire Shipping Company Inc v Owners of the Ship 'Shin Kobe Maru' (1991) 32 FCR 78 at 95 (at first instance). 26 Mr Cutler submitted that the claim did not arise out of an agreement, since the claim was pleaded only in bailment and tort. He also submitted that there was an insufficiently direct connection between any relevant agreement (if there were one) out of which the claim arose and the carriage of goods by a ship to satisfy the test laid down in The 'Bass Reefer' 37 FCR 374. 35 Thus, both Gatoil and The 'Antonis P Lemos' can be seen as unanimous decisions of the final court of appeal in the United Kingdom interpreting domestic legislation having its origins in an international convention, one aim of which was to bring uniformity of approach among different legal systems. The existence of those decisions, the desirability of international uniformity, or at least broad consistency, and an expressed suggestion by the ALRC (which was heeded) that Parliament follow the wording of the 1981 UK Act, which had been (recently) interpreted (as well as the antecedent provision in the 1956 UK Act) by the House of Lords in Gatoil and The 'Antonis P Lemos' necessarily constrain the interpretation of s 4(3)(f), certainly at first instance. Further, two judges, of this Court (Foster J in The 'Bass Reefer' and Gummow J in The 'Shin Kobe Maru' ) at first instance have applied Gatoil.


case_title: Pyrene Company Ltd v Scindia Steam Navigation Company Ltd [1954] 2 QB 402


case_text: These submission are answered by the proper application not only of Gatoil [1985] AC 255, but also of Samick Lines Co Ltd v Owners of the 'Antonis P Lemos' [1985] AC 711. Two phrases in s 4(3)(f) are central to understanding the reach of the provision in the circumstances here: " a claim arising out of an agreement" and " that relates to the carriage of goods... by a ship ". The former was the subject of consideration in The 'Antonis P Lemos' [1985] AC 711, the latter in Gatoil [1985] AC 255.


case_title: Teys Bros (Beenleigh) Pty Limited v ANL Cargo Operations Pty Limited [1990] 2 Qd R 288


case_title: The 'Aifanourios' [1980] SC 346

case_text: It is to be noted that Lord Keith said there was "much force" in the comments of Lord Wylie in The 'Aifanourios' [1980] SC 346, which Lord Keith quoted extensively and which can be seen as influential in his reasoning. There, Lord Wylie thought that s 47(2)(d) and (e) should not be construed broadly because to do so would encompass what fell within other provisions of s 47(2). This argument was put by Mr Saville QC to the House in The 'Antonis P Lemos' [1985] AC at 726 (the second point at 726 G). The argument was rejected by Lord Brandon at [1985] AC at 727, who said that having regard to the clear policy of the 1952 Convention and the enacting legislation, to provide a full and complete list of specific maritime claims or kinds of them, rather than a few general formulations comprehending them all "some degree of overlap" was only "natural and inevitable". 48 It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what " tilted the balance in favour of giving a narrow meaning to the expression 'relating to '" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil .


case_title: The 'Eschersheim' [1976] 1 WLR 430

case_text: It is also important for the application of the principles attending construction of the Act to which I have referred to understand that the provisions in the 1956 UK Act (and, through it the 1981 UK Act) were passed to enable the United Kingdom to ratify and to comply with its international obligations under the 1952 Convention: The 'Eschersheim' [1976] 1 WLR 430 at 434 (per Lord Diplock) and Gatoil [1985] AC at 266 (per Lord Keith). Article 1(1) of the 1952 Convention contained the following as part of the list of "maritime claims": "Maritime claim" means a claim arising out of one or more of the following: ... (d) agreement relating to the use or hire of any ship whether by charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; ...


case_title: The 'Pioneer Container' [1994] 2 AC 324

case_text: There are two main bases for these assertions. First, it is said that the United Kingdom Warehouseman's Association (UKWA) terms were part of the arrangement between Planetwide and the defendant. It was argued initially that these terms bound the plaintiff through the application of the principles in The 'Pioneer Container' [1994] 2 AC 324. This argument was abandoned in oral address. 58 There would be a number of difficult questions that would arise if one could be clear about what terms governed the relationship between Planetwide and the defendant. It is unclear in Australia whether The 'Pioneer Container' is applicable to quasi-bailment as distinct from true sub-bailment where the bailee, sub-bailor obtains possession, before the sub-bailment: cf Mathew Short & Associates Pty Limited v Riviera Marine (International) Pty Limited [2001] NSWCA 281. Secondly, it is unclear on the evidence that the plaintiff consented to the terms of the sub-bailment. It is certainly not possible on the evidence to conclude that any terms of the defendant directly bound the plaintiff from anything that passed to or from him, or Mr Seymour. 61 In any event, the argument based on The 'Pioneer Container' was not pressed. 62 The second basis of attribution of terms with a time bar and exclusive foreign jurisdiction clause to the plaintiff was the Planetwide bill. If the terms of that bill reflected a binding contract between the plaintiff and Planetwide, binding on the plaintiff by being entered into on his behalf by his agent, Mr Seymour, difficult questions of construction and interpretation would arise. It is unnecessary to set out the clauses in full, but issues as to the reading of the "Himalaya clause" would arise. It is not clear that one would read a number of the clauses as protecting any sub-contractors as if the protections were read for their express benefit. 63 These questions need not be addressed because there is no evidence upon which one could conclude that the terms of the bill issued in August 2003 were evidence of a contract entered with the consignor (Mr Seymour) as at July 2003, and thus through him, with the plaintiff as at July 2003.


case_title: The 'Sennar' [1981] 1 Lloyd's Rep 295

case_text: Lord Brandon was of the view that the wider construction was to be preferred and the first contention argued for by Mr Saville QC should be rejected because (a) the words were the implementation of an international convention and should, in general, be given a broad and liberal construction; (b) the text and structure of the words in Article 1 of the 1952 Convention in introducing all the listed maritime claims tended to a broad construction; (c) the rearrangement of the words from Article 1 to those in s 20(2) was not to be taken as intending a narrowing of the meaning found in the 1952 Convention; and (d) the existing English authorities, The 'St Elefterio' [1957] P 179 and the The 'Sennar' [1981] 1 Lloyd's Rep 295, supported the capacity to bring a claim in tort under the antecedent to s 20(2)(h).


case_title: The 'St Elefterio' [1957] P 179


case_text: It is also be noted that in The 'Antonis P Lemos' at 730 Lord Brandon expressed the view that what " tilted the balance in favour of giving a narrow meaning to the expression 'relating to '" was the existence of two authorities, The 'Zeus' (1888) 13 PD 188 and The 'Aifanourios' [1980] SC 346 (the reasoning in which latter case can be seen as contrary to some of the comments of Lord Brandon about the natural and inevitable overlap in the list of maritime claims). Lord Brandon said (at [1985] AC at 730 G-H) that in the absence of these authorities it might not be right to give the expression "relating to" (in s 4(3)(f) "relates to") a narrow meaning as given by the House in Gatoil .


case_text: Before dealing with these cases, it is appropriate to set out, by reference to settled Australian law, some important considerations that attend the construction and interpretation of the Act. The first consideration is the proper approach to the construction of the Act. In Tisand Pty Limited v The Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2005] FCAFC 68 ; (2005) 143 FCR 43 at 59-61 [59] - [65] , the Full Court set out relevant governing principles. It is unnecessary to repeat those passages other than to say the Act should be read in its legal and historical context, and that the Act and the definitions of maritime claims have an international as well as a domestic maritime context, including the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952, done at Brussels on 10 May 1952 (the "1952 Convention") and the Australian Law Reform Commission Report No 33 on Civil Admiralty Jurisdiction (the "ALRC Report").


case_text: When exercising the discretion, the Court is required to consider whether an applicant has demonstrated that his appeal may have sufficient prospects of success to make it just that he should be allowed to proceed. When considering prospects of success, at least two considerations have to be addressed, namely: what is the standard against which prospects are to be judged, and how is that assessment to be made. In SZJDS v Minister for Immigration & Citizenship [2008] FCA 1093 , Reeves J helpfully reviewed the authorities and set out his conclusion as follows: [21] ... there are a number of decisions of this Court, including the Full Court, that require me to consider the applicant's prospects of successfully prosecuting his appeal, before exercising my discretion to grant leave to file the appeal out of time... [22] The questions which then arise are: how rigorous should that assessment be; what standard should apply to it; and how closely should the applicant's prospects of success be examined? The appropriate standard has been expressed in different ways and in different circumstances. In Jess the Full Court does not seem to have mentioned any requirement to assess the applicant's prospects of success in the appeal. This is probably explained by the view the Court expressed early in its reasons that: "there is no suggestion that the appeal is sought to be maintained mala fide or upon slight or foolish grounds" (at p 3). However, their Honours did emphasise the need for flexibility to accommodate the range of situations that may arise when they said: ... the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. His Honour then set forth the authorities, including Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 , and continued: [30] Taking all these decisions into account, particularly the High Court Decision of Jackamarra, I consider the standard that should be applied in an application of this kind to the assessment of the applicant's prospects of success in the appeal, is similar to that to be applied in an application for summary dismissal. That is, unless the appeal is shown to have no reasonable prospects in the sense that it is devoid of merits or will clearly fail, or is hopeless or unarguable, leave should be granted. [31] There remains the question: how closely should the applicant's prospects of success on the appeal be examined? The answer to that question was provided in Jackamarra. There the High Court said the consideration of an application of this kind should not go into much detail on the merits and can only assess the merits in a fairly rough and ready way: see [9] per Brennan CJ and McHugh J and [66.4] per Kirby J. This is the approach pursued in the present Application .


case_title: Jess v Scott (1986) 12 FCR 187

case_text: The requirement imposed by Rule 15(2) that there be " special reasons " is a requirement imposing a flexible discretionary power: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195 : It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case. It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed -- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, Nicholson and Finkelstein JJ.


case_text: It may not be an appropriate exercise of discretion to extend time, however, where a satisfactory explanation has not been provided for the whole of the delay: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration & Citizenship [2008] FCA 632 at [20] . In the present Application , that for which there has been no explanation, or no satisfactory explanation, is such delay as occurred after 6 June 2008. A two-month delay after that date is largely unexplained; and following a friend to Queensland and thereby occasioning a further two-month delay falls well short of " special reason ". And during that period the present Applicant was well aware that her Application was already out of time.


case_text: Notwithstanding the absence of any real assistance from the Applicant, the Federal Magistrate proceeded to review the available grounds. There was certainly no procedural unfairness in the Federal Magistrate taking that course. And, as noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152: [25] ... what is required by procedural fairness is a fair hearing, not a fair outcome. ... See also: SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301 at [18] per Jacobson J. The review undertaken by the Federal Magistrates Court, it should be noted, was considerably assisted by detailed written submissions having been filed on behalf of the Respondent Minister.


case_outcome: considered

case_text: Every case must individually be considered. Subject to that necessary qualification, the present case is comparable in some respects to SZGQM v Minister for Immigration & Citizenship [2008] FCA 899 where an extension of time of one week was refused in circumstances where the explanation provided by the applicant was that he had " forgot about it ". 17 Compliance with the Rules of Court, including the times within which applications are to be made, is normally to be expected. 18 No reason is shown in the present proceeding to extend the time by some 4 months.


case_title: SZJDS v Minister for Immigration & Citizenship [2008] FCA 1093


case_title: SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301


case_title: SZKSM v Minister for Immigration & Citizenship [2008] FCA 632


case_title: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399


case_text: proceeding was heard concurrently with another proceeding, VID 349 of 2009 which also concerned an appeal by Mr Piotto from a decision of the Tribunal to affirm a participation failure imposed by Centrelink in 2008; see Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1116. These reasons should be read in conjunction with the reasons for judgment in that proceeding, particularly in respect of the relevant legislative background. The respondent initially applied to the Court for summary judgment in its contentions of fact and law filed on 10 March 2009. For reasons which were unexplained, counsel for the respondent did not press the application at the trial of the proceedings and the proceedings were heard on a final basis on 14 September 2009. This proceeding concerns an appeal by Mr Piotto from a decision of Senior Member Friedman of the Tribunal delivered on 1 May 2008. Senior Member Friedman affirmed the decision of the SSAT to uphold Centrelink's decisions to impose Newstart participation failures on Mr Piotto in respect of Mr Piotto's conduct on 14 August 2007, 6 September 2007 and 5 October 2007 ("the 2007 Participation Failures"). The Tribunal in considering the delegation issue stated "It is claims [sic] that there was not an instrument of authority or something that gave them [MatchWorks] the legal authority to act for Centrelink. I am not persuaded that this is the case at all". However, there was no evidence before the Tribunal to support this finding. In contrast to the circumstances considered by Bennett J in Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [19] , the respondent did not adduce any evidence before the Tribunal to demonstrate which of the arrangements referred to in cl 3 applies to MatchWorks's activities on behalf of the respondent; see also Piotto at [17] [20]. Also the respondent has not adduced evidence to demonstrate that the relevant employees of MatchWorks were officers of an Employment Services Provider for the purposes of s 23(1) of the Act; see Lim at [19] and Piotto at [19] [20]. Mr Piotto also placed considerable emphasis on what he considered as the inability of the respondent to require him to sign a Newstart Activity Agreement. Mr Piotto's understanding of the Act in this respect is mistaken for the reasons discussed in Piotto at [25] [28]. The relevant question is whether Mr Piotto was prepared to enter into a Newstart Activity Agreement; see s 624(1)(c) of the Act. As indicated by s 605(4) of the Act, a Newstart Activity Agreement must be in writing between the Newstart recipient and the respondent. The respondent was entitled to ask Mr Piotto to indicate his acceptance of the written agreement through his signature. Mr Piotto has not shown that he was prepared to enter in to the Newstart Activity Agreements and to conclude that agreement in writing. Mr Piotto has not shown that he has a reasonable excuse for so refusing. Mr Piotto has not shown that the Tribunal's decision on this point was effected by any error of law. This ground of appeal also fails. The matter must be remitted back to the Tribunal for reconsideration. In the circumstances it is appropriate to make no order as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 8 October 2009 The Applicant appeared in person. Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Herbert Geer Date of Hearing: 14 September 2009 Date of Judgment: 8 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1115.html


case_text: Tribunal in considering the delegation issue stated "It is claims [sic] that there was not an instrument of authority or something that gave them [MatchWorks] the legal authority to act for Centrelink. I am not persuaded that this is the case at all". However, there was no evidence before the Tribunal to support this finding. In contrast to the circumstances considered by Bennett J in Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [19] , the respondent did not adduce any evidence before the Tribunal to demonstrate which of the arrangements referred to in cl 3 applies to MatchWorks's activities on behalf of the respondent; see also Piotto at [17] [20]. Also the respondent has not adduced evidence to demonstrate that the relevant employees of MatchWorks were officers of an Employment Services Provider for the purposes of s 23(1) of the Act; see Lim at [19] and Piotto at [19] [20].


case_outcome: distinguished

case_title: Re Hewitson and Secretary, Department of Family and Community Services (2002) 71 ALD 231


case_text: for the respondent submitted that the Act empowers the respondent to impose the terms of a Newstart Activity Agreement rather than requiring a true process of negotiation. In doing so, counsel for the respondent relied on the Tribunal's decision in Dunn v Secretary, Department of Employment and Workplace Relations [2007] AATA 1031. Similarly, counsel for the respondent contended that as the respondent is empowered to require attendance at interviews or other appointments, this permits the respondent to alter the dates in a Newstart Activity Agreement. Counsel for the respondent also submitted that the matters identified by Mr Piotto did not constitute a reasonable excuse for the purposes of s 624 of the Act. The decision in Dunn considered the refusal by Mr Dunn to enter into a Newstart Activity Agreement, including whether Centrelink was permitted to present the terms of an agreement as a fait accompli . In doing so, the Tribunal examined what was then known as s 604 of the Act. The Tribunal at [17] concluded that: Section 604 of the Act clearly has the effect of empowering the Secretary to impose terms. It is something of a misnomer to suggest that the agreed plan is the product of negotiations. The provisions of s 604 considered by the Tribunal in Dunn were contained in s 605 of the Act as it was at the time of the 2007 Participation Failures. Although this Court is not bound by the Tribunal's decision in Dunn , I see no reason in the present circumstances to depart from the Tribunal's observations regarding the extent of 'negotiation' required by Act. The language of s 605 of the Act, in place at the time of the 2007 Participation Failures, did not require the parties to a Newstart Activity Agreement to engage in the same process of negotiation that may be expected of parties to other types of contracts. The respondent is placed in the stronger negotiation position by the Act and is able, to a very real extent to dictate the terms of a Newstart Activity Agreement. Accordingly, the Newstart Activity Agreements proposed at the time of the 2007 Participation Failures are not unconscionable or unreasonable as a result of the failure of Mr Piotto and MatchWorks to engage in a negotiation process. The Tribunal's findings in this respect were correct.


case_title: Australian Securities & Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493

case_text: Forestview has applied for funding for its legal representation in the winding up proceedings on the basis that it requested funding from the receivers and managers and was refused by them. It relies upon ss 423 and 1321 of the Act as the sources of the Court's power to review that refusal and make an order that funding be provided. As in the like case of Australian Securities and Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493 , I do not consider that any inquiry pursuant to s 423 of the Act is warranted nor is it an appropriate vehicle for dealing with the question which arises pursuant to the liberty to apply given on 31 August 2006. In Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438, McLelland J said of the former s 420 of the Companies (New South Wales) Code , which provided for inquiries into complaints relating to liquidators in terms relevantly identical to s 423 of the Act: 'Section 420 is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. Although the section applies to any liquidator it has particular significance in the case of a liquidator appointed by the court who is, in that sense, an officer of the court, and to a liquidator whose qualification for office is that he is a registered official liquidator or a registered liquidator with the public accreditation that such registration involves and who is in that sense a public officer.' In Belvista Pty Ltd v Murphy (1993) 11 ACSR 628, his Honour revisited the point in relation to the like provision in s 536 of the former Corporations Law and said (at 630): 'In conclusion, I wish to add that where, as here, a creditor or other interested party wishes to challenge the decision of a person in the position of a scheme administrator, or a liquidator, apparently arrived at in good faith, it is generally inappropriate to utilise the "complaint" provisions of s 536 of the Corporations Law rather than the "appeal" provisions of s 1321. As I observed in Northbourne Developments v Reiby Chambers Pty Ltd [(1989) 18 NSWLR 434 at 438] in relation to the predecessor of s 536, that section is concerned with aspects of the conduct of liquidators and others which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons.' I respectfully agree with and adopt what McLelland J said in those two cases in its application to s 423 of the Act.


case_text: Forestview has applied for funding for its legal representation in the winding up proceedings on the basis that it requested funding from the receivers and managers and was refused by them. It relies upon ss 423 and 1321 of the Act as the sources of the Court's power to review that refusal and make an order that funding be provided. As in the like case of Australian Securities and Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493 , I do not consider that any inquiry pursuant to s 423 of the Act is warranted nor is it an appropriate vehicle for dealing with the question which arises pursuant to the liberty to apply given on 31 August 2006. In Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438, McLelland J said of the former s 420 of the Companies (New South Wales) Code , which provided for inquiries into complaints relating to liquidators in terms relevantly identical to s 423 of the Act: 'Section 420 is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. Although the section applies to any liquidator it has particular significance in the case of a liquidator appointed by the court who is, in that sense, an officer of the court, and to a liquidator whose qualification for office is that he is a registered official liquidator or a registered liquidator with the public accreditation that such registration involves and who is in that sense a public officer.' In Belvista Pty Ltd v Murphy (1993) 11 ACSR 628, his Honour revisited the point in relation to the like provision in s 536 of the former Corporations Law and said (at 630): 'In conclusion, I wish to add that where, as here, a creditor or other interested party wishes to challenge the decision of a person in the position of a scheme administrator, or a liquidator, apparently arrived at in good faith, it is generally inappropriate to utilise the "complaint" provisions of s 536 of the Corporations Law rather than the "appeal" provisions of s 1321. As I observed in Northbourne Developments v Reiby Chambers Pty Ltd [(1989) 18 NSWLR 434 at 438] in relation to the predecessor of s 536, that section is concerned with aspects of the conduct of liquidators and others which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons.' I respectfully agree with and adopt what McLelland J said in those two cases in its application to s 423 of the Act. 39 McLelland J discussed the term "person aggrieved" in s 538 of the Companies (New South Wales) Code in Northbourne Developments. He referred to the observations of James LJ in Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 concerning s 71 of the Bankruptcy Act 1869 (UK) (at 465): '... but the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.' McLelland J, correctly in my respectful opinion, said that the remarks of James LJ should not be treated as an exhaustive definition. But the concept encapsulated in the phrase "legal grievance" was, he thought, "sound in principle". He made the important point that "... the wider the class of persons entitled to appeal to the court in respect of an act, omission or decision of a liquidator (or provisional liquidator) the greater the scope for potential disruption of an orderly administration" (438).


case_title: Belvista Pty Ltd v Murphy (1993) 11 ACSR 628


case_text: An appeal can only be brought by a "person aggrieved" by the "relevant act, omission or decision". The term "person aggrieved" was discussed by Gummow J in the context of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 130-133. His Honour observed that the term "aggrieved" has long appeared in statutes as a way of identifying persons who have standing to utilise a procedure established by the statute (131). He said: 'In each instance the content of the expression is to be seen in the light of the scope and purpose of the statute in issue...'


case_text: What emerges from his Honour's judgment, by reference to common law standing requirements for the issue of certiorari is that (at 132): '... it was by no means apparent that "grievance" necessarily involved injury to property or present legal interests or "special damage" in any technical sense.' His Honour acknowledged the force of the observation by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1982) 54 FLR 421 at 437-438 that the meaning of a "person aggrieved" is "... not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public". Gummow J was considering the term in the context of standing to bring an application under the ADJR Act which has specified grounds for judicial review. The scope of review under s 1321 is not confined by specified grounds.


case_text: McLelland J discussed the term "person aggrieved" in s 538 of the Companies (New South Wales) Code in Northbourne Developments. He referred to the observations of James LJ in Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 concerning s 71 of the Bankruptcy Act 1869 (UK) (at 465): '... but the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.' McLelland J, correctly in my respectful opinion, said that the remarks of James LJ should not be treated as an exhaustive definition. But the concept encapsulated in the phrase "legal grievance" was, he thought, "sound in principle". He made the important point that "... the wider the class of persons entitled to appeal to the court in respect of an act, omission or decision of a liquidator (or provisional liquidator) the greater the scope for potential disruption of an orderly administration" (438).


case_text: The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'


case_title: In the Matter of Federation Health Ltd (Administrator Appointed [2006] FCA 314


case_title: Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630


case_title: Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230


case_title: Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769


case_title: Duffy v Super Centre Development Corporation Ltd [1967]1 NSWR 382

case_text: Where an appeal is brought against a discretionary or evaluative decision of receivers and managers, and particular decisions involving qualitative judgment, the scope for curial intervention is necessarily confined. In the case of a court appointed receiver and manager, Street J in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 said (at 383): 'The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company's assets. To the extent to which he makes decisions from time to time, they are in effect made under the authority of the Court itself, and they are subject to review and control by the Court should a proper case be made out requiring such intervention. Whilst this Court does, therefore, have an ultimate control over the day-to-day actions of a receiver and manager, it is a control which is not in my view to be too freely exercised. If, of course, there can be shown to be some defect in the manner in which the receiver and manager is conducting his duties a defect arising out of some want of good faith or out of some erroneous approach in law or in principle then that is clearly a ground on which the Court would entertain an application by one of the interested parties for appropriate directions or some other form of remedial order. Where, however, the challenge made is that there has been an absence of prudence and wisdom in the receiver's decisions, a far heavier onus rests upon the party who seeks to challenge the decision in question. The Court will not concern itself with minor and ordinary decisions that he may have made: it must be shown that there is a decision of real significance in the affairs of the company and as to which there are real and substantial grounds for questioning its correctness before the Court will embark upon an investigation of what, if any, directions ought to be given.' Those observations were repeated by his Honour in Re Mineral Securities Australia Ltd (In Liq) [1973] 2 NSWLR 207 at 231, a case involving a challenge to a decision of a liquidator. To the extent that those observations related to court appointed receivers and managers, they apply with greater force to receivers and manages privately appointed with extensive powers under a company charge.


case_title: Re Mineral Securities Australia Ltd (In Liq) [1973] 2 NSWLR 207


case_text: In Re JAY-O-BEES Pty Ltd (in liq) (2004) 50 ACSR 565 Campbell J said (at [46]): 'The appeal to the court from a liquidator's rejection of a proof of debt arises under s 1321 Corporations Act 2001 (Cth). That section is one which enables appeals to the court to be made in relation to manner of acts, omissions or decisions of a liquidator. The role which the court takes on the appeal is affected significantly by the nature of the act, omission or decision which is being appealed against. Where the appeal is against a discretionary decision by a liquidator, or against a decision involving matters of business judgment, the court will reverse the liquidator's decision only when it is satisfied that he was acting unreasonably or in bad faith.' His Honour went on at [47] to distinguish the approach taken on an appeal from a liquidator's rejection of a proof of debt, a distinction which I respectfully accept. 45 I would not set the threshold required under s 1321 in respect of the discretionary decisions of private receivers and managers so high that it is necessary to show that there has been something akin to unreasonableness in the sense necessary to vitiate the exercise of a statutory power under administrative law. It is sufficient to say that at the very least the person bringing an appeal under s 1321 in these circumstances must demonstrate that the decision is informed by some error of law or significant factual error or is otherwise so unreasonable, in the circumstances, that it should not be allowed to stand. The content of those somewhat ambulatory considerations will be informed by the significance of the decision to the affairs of the company. 46 In the present case, having regard to the obligations of the receivers and managers under the Charge, the limited cash, in their judgment, available to the company, its liability to the mortgagee and the potential claims of other creditors, I see no basis upon which the receivers and managers' refusal to make available funding for the purpose of defending winding up proceedings should be interfered with. The company has charged all of its assets in favour of the mortgagee. In so doing it has disabled itself, following the appointment of the receivers and managers, from having access to those assets for other purposes. Mr Carey's arguments about the financial position of the company do not establish a basis for gainsaying the judgment of the receivers and managers. 47 Whether or not after protracted proceedings it might be shown that the receivers and managers' evaluation was erroneous and that of Mr Carey correct, is not a possibility that can form a basis for interfering with the decision. 48 The amount required is small. It may be that if Mr Carey wishes to defend the proceedings in the name of the company it can be obtained from some other source. I decline to interfere with the decision of the receivers and managers in this case. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 15 November 2006 Counsel for the Applicant: Mr C Slater Solicitor for the Applicant: Australian Securities and Investments Commission Counsel for the First Respondent: Ms ML Coulson Solicitor for the First Respondent: Hammond Worthington Date of Hearing: 30 October 2006 Date of Judgment: 15 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1530.html


case_text: However, the performance of a public duty or the fulfilment of a public function by a body such as Airservices is different to the performance or fulfilment of private rights or privileges by a private individual or corporation acting in its own interest. If the Court took a strict view of the public duty or function, a deviation from the conditions laid down in the statute would make the act of the public body invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 392 [97] per McHugh, Gummow, Kirby and Hayne JJ. The inconvenience to the public which that approach would occasion is a powerful reason against adopting that construction: Clayton v Heffron [1960] HCA 92 ; (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. In Project Blue Sky 194 CLR at 392-393 [99]-[100] the majority held that while the statute there imposed a legal duty on the authority, an act done in breach of the statutory duty was not invalid. But, they held, a person with a sufficient interest could sue for a declaration that the authority had acted in breach of the statute and, in an appropriate case, could obtain an injunction restraining it from taking any further action based on its unlawful conduct. 71 Indeed, the 2005 master plan for Canberra airport contains an ultimate practical capacity ANEF as at 2050 (par 10.5.5 and fig 10.5) and a comparison between the 20 ANEF contours for the 2050 ultimate practical capacity ANEF, the 2024 ANEC ('Australian Noise Exposure Concept') and the former 1997 ANEF (fig 10.6). A master plan which is approved by the Minister becomes a final master plan which comes into force at the time of the approval. It is unlikely that the inclusion of matters in addition or supplementary to those required to be included in a master plan were intended by the Parliament to have the effect of rendering invalid a draft or final master plan: Project Blue Sky 194 CLR at 391 [94] [95]; see too at 381-382 [69] [71], 384 [78] per McHugh, Gummow, Kirby and Hayne JJ, Clayton v Heffron 105 CLR at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. The consequence of Village's argument is so impracticable that it cannot have been intended in the absence of express words.


case_title: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35


case_text: a general proposition costs follow the event in the absence of circumstances justifying departure from that position. However in this case, to echo McLelland J in The Ritz Hotel Ltd v Charles of the Ritz Ltd (1989) AIPC 38 ,940 (90-567) at 940, "the event" is a complex notion. While the courts caution against too ready a resort to apportionment according to issue-based outcomes ( Australian Trade Commission v Disktravel [2000] FCA 62 at [3] (Full Court), cf Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492) , more recently the Full Court has also observed that fairness should dictate how judicial discretion is to be exercised in respect of costs. Accordingly if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied ( Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] ).


case_title: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107


case_text: Elliott v Lord Rokeby (1881) 7 App Cas 43 at 47 Lord Blackburn said: Upon that view of the matter I most completely agree that there being a success to the appellants on one point of their appeal, it is not reasonable that they should pay costs to the other side. But there being so very much upon which they have forced the respondent to come here for no purpose, I think the respondent on the other hand should not be obliged to pay costs either. Consequently as Lord Campbell used frequently to say in the Court of Queen's Bench in such cases, "the costs are to the victor, but where there is no victor there can be no costs". I think that would be the right principle here. (cf decision of Simmonds J in respect of costs in Interim Advance Corporation Pty Ltd trading as Aussie Cash v Commissioner for Consumer Protection (2009) WASC 1)


case_title: Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492


case_text: my view the respondents are entitled to their costs of an interlocutory application filed 18 January 2007, in which they successfully sought an order that Deloitte Touche Tohmatsu make discovery of all documents in its possession relating to the financial affairs of the second applicant for the years ending 31 December 1997, 1998 and 1999 ( Forbes Engineering (Asia) Pte Limited v Forbes [2007] FCA 67). Otherwise, in my view the appropriate order is that the parties should bear their own costs in respect of the substantive proceedings and the notice of motion filed 12 September 2007. I form this view for the following reasons. Second respondent


case_text: Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 I made the following substantive orders: In relation to the amended application filed 31 March 2006: In relation to the notice of motion filed 12 September 2007: At the time of delivery of judgment I also made orders for the applicants and the respondents to file and serve submissions as to costs. Those submissions were filed and served, and I take them into account for the purposes of delivery of this judgment. In the substantive judgment I found the applicant successful in part. In favour of the applicants I found, in summary, that: However while many aspects of the respondents' defence failed, I found the respondents substantiated their defences in respect of the liability of the second respondent, and to the applicants' claim concerning the 1999 Profit Shortfall in the amount of $1,818,568. In relation to the notice of motion filed 12 September 2007 the respondents sought an order that the proceedings be permanently stayed as an abuse of process, and alternatively orders pursuant to s 135 or s 136 of the Evidence Act that certain affidavit material be excluded. This time the respondents were successful in part I found in their favour in relation to the exclusion of evidence, but they were unsuccessful in relation to their claim of abuse of process. Submissions of the parties


case_title: Interim Advance Corporation Pty Ltd trading as Aussie Cash v Commissioner for Consumer Protection (2009) WASC 1


case_text: I note the applicants' submission concerning the decision in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) (2007) NSWSC 568 (a case where the trial judge ordered a defendant to pay 80% of the plaintiff's costs notwithstanding the defendant's submission that the plaintiff only recovered 10% of its total claim against the defendant) a review of that decision reveals that the costs awarded included significant items of expenditure clearly related to the circumstances of that particular case including promotional material, travel, wages, copyrighting and bookkeeping. Finally, although the respondents were successful pursuant to their notice of motion filed 12 September 2007 in obtaining an order excluding certain affidavit evidence, they were unsuccessful in relation to their claim for a permanent stay, which was an important issue requiring determination in respect of that notice of motion.


case_text: I found the second respondent not liable to the applicants in respect of their claims, all aspects of the defence of the second respondent appeared to be jointly conducted with common defences of both respondents. The first respondent was clearly an active protagonist. No evidence was given by nor sought from the second respondent in the proceedings. The second respondent appeared to take no active part in the proceedings. In my view there should be no order in respect of costs for or against the second respondent: New South Wales Dairy Corporation v Murray-Goulburn Co-Operative Company Limited (1989) 14 IPR 75 at [80]. Substantive proceedings and notice of motion filed 12 September 2007 as between the applicants and the first respondent In relation to the position of the applicants and the first respondent, although I identified a number of issues for decision, in the final analysis the key issues for decision were whether the respondents were liable in respect of the 1998 and 1999 profit shortfalls. The applicants were successful in their claim against the first respondent with respect to the 1998 profit shortfall, the respondents in defending the applicants' claim for the 1999 profit shortfall. Second, the respondents were unsuccessful in respect of a majority of the defences raised in the substantive proceedings. A significant amount of time and evidence were taken up during the trial in relation to those unsuccessful defences.


case_text: 20 April 2006 orders were made under s 1323 of the Corporations Act 2001 (Cth) (the Act) and s 23 of the Federal Court of Australia Act 1976 (Cth) restraining Bowesco Pty Ltd (Bowesco) from disposing of or dealing with its assets pending investigations being carried out by the Australian Securities and Investments Commission into matters relating to Bowesco and other companies associated with the Westpoint Property and Finance Group Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) (2006) 57 ACSR 307. On 30 June 2006 the orders were varied. The substantive freezing order in respect of Bowesco's property is in the following terms: by itself, its servants, agents and employees, is restrained until 20 October 2006 or further order, from removing, or causing or permitting to be removed from any State of Australia and from Australia, or selling, charging, mortgaging or otherwise dealing with or disposing of or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of its assets (the "Bowesco Property"), whether held legally or beneficially by it.' At the time of the orders of 20 April and 30 June 2006 John Patrick Cronin and Shaun Robert Fraser had been appointed as receivers under a Deed of Charge granted by Bowesco in favour of Suncorp-Metway Ltd dated 8 October 2004. While receivers were appointed to the property of other Westpoint companies and officers on 20 April 2006 pursuant to s 1323, no such appointment was sought or made in respect of Bowesco because of the prior appointment of the Suncorp-Metway receivers. Variations to the Bowesco orders are now sought. They relate to an Option held by Bowesco and purportedly assigned to it by Westpoint Corporation Pty Ltd (Westpoint Corporation) in respect of land occupied by the Warnbro Fair Shopping Centre and land adjacent to it.


case_text: option to purchase land gives to its grantee an equitable interest in the land Barba v Gas & Fuel Corporation of Victoria [1976] HCA 60 ; (1976) 136 CLR 120 at 137 (Gibbs J, Stephen and Jacob JJ agreeing). Gibbs J quoted Jessel MR in London and South Western Railway Co v Gomm (1882) 20 Ch D 562 at 581: right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase-money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land.' On its face therefore the ING Charge applies, as a fixed charge, to the Option as an interest in land.


case_title: London and South Western Railway Co v Gomm (1882) 20 Ch D 562


case_title: In re Yorkshire Woolcombers Association [1903] 3 Ch 284

case_text: United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.' Counsel also referred to Waters v Widdows [1984] VR 503, another case concerning a charge over book debts. Nicholson J, after citing re Yorkshire Woolcombers found an inescapable inference that it was intended that the chargor company in that case should continue to carry on its business in the ordinary way so far as its book debts and stock in trade were concerned.


case_title: United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 44 CLR 673

case_text: United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.' In the United Builders' case, two companies carried on a business in partnership. One of the companies charged all of its right, title and interest in the partnership in favour of the other in order to secure a loan made for extraneous purposes. The company later borrowed other moneys from another lender and gave as security a debenture mortgage which created a floating charge. In the winding up of the debtor company a question arose concerning the priority of the two securities. The majority held, with Stephen J dissenting, that the charge over the debtor's interest in the partnership was a fixed not a floating charge. In the course of his judgment Mason J said (at 686): the subject of the present charge was the property and undertaking of [the debtor company] there would be no doubt that the charge was of the floating variety. Otherwise [the debtor company] would be unable to dispose of its assets in the ordinary course of its business and [the creditor company] would not have the benefit of a charge on future assets. the problem here is that the property over which the charge has been given is not the undertaking, or any part of the general assets, of [the debtor company] but its interest in the partnership.' His Honour went on to hold that what the charge did was to confer an entitlement in the holder on dissolution of the partnership in relation to the partner's share of the partnership assets. As may be seen, the point upon which the decision turned in that case was to do with the nature of an interest in a partnership rather than the point with which the Court is concerned in the present case. It is perhaps a matter of some significance that the ING Charge is not expressed to be, in its fixed component, a charge over the whole of the undertaking of Westpoint Corporation. The fact that the application of the fixed charge is expressed distributively over specifically identified categories of property, supports the construction that the intention was to create a charge of the kind that it is expressed to be.


case_title: Illingworth v Houldsworth [1904] AC 355

case_text: United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43 ; (1980) 144 CLR 673, Mason J (with whom Barwick CJ, Gibbs and Wilson JJ agreed) referred to In re Yorkshire Woolcombers Association and noted its affirmation on appeal by the House of Lords in Illingworth v Houldsworth [1904] AC 355. His Honour cited Lord Macnaghten in the latter case who said (at 358): specific charge, I think, is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined; a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.'


case_text: terms of the ING Charge are explicit. It constitutes a fixed charge over, inter alia, any interest of the Westpoint Corporation in: land; ... Encumbrances over any property; benefit of any contract to which the Chargor is a party, including any insurance policy;' Counsel for Bowesco also referred to recent decisions of the Privy Council and the House of Lords. In Agnew v Commissioner of Inland Revenue [2001] UKPC 28 ; [2001] 2 AC 710, the Privy Council, on appeal from the Court of Appeal of New Zealand, was concerned with the character of a charge over book debts. At 725 their Lordships said: question is not merely one of construction. In deciding whether a charge is a fixed charge or a floating charge, the court is engaged in a two-stage process. At the first stage it must construe the instrument of charge and seek to gather the intentions of the parties from the language they have used. But the object at this stage of the process is not to discover whether the parties intended to create a fixed or a floating charge. It is to ascertain the nature of the rights and obligations which the parties intended to grant each other in respect of the charged assets. Once these have been ascertained, the court can then embark on the second stage of the process, which is one of categorisation. This is a matter of law. It does not depend on the intention of the parties. If their intention, properly gathered from the language of the instrument, is to grant the company rights in respect of the charged assets which are inconsistent with the nature of a fixed charge, then the charge cannot be a fixed charge however they may have chosen to describe it.'


case_text: Re Spectrum Plus Limited [2005] UKHL 41 ; [2005] 2 AC 680 the House of Lords considered the characterisation of a charge over book debts. Lord Hope acknowledged at [54] that there are a number of ways to ensure that a charge over book debts is fixed. He referred to Professor Sarah Worthington's article An 'Unsatisfactory Area of the Law' Fixed and Floating Charges Yet Again, (2004) 1 International Corporate Rescue, 175 at 182. Lord Hope set out ways to fix a charge over book debts. They were to: ... prevent all dealings with the book debts so they are preserved for the benefit of the chargee's security. ... Another is to prevent all dealings with the book debts other than their collection, and to require the proceeds when collected to be paid to the chargee in reduction of the chargor's outstanding debt.... A third is to prevent all dealings with the debts other than their collection, and to require the collected proceeds to be paid into an account with the chargee bank. ... A fourth is to prevent all dealings with the debts other than their collection and to require the collected proceeds to be paid into a separate account with a third party bank.' Lord Scott said (at [111]): my opinion, the essential characteristic of a floating charge, the characteristic that distinguishes it from a fixed charge, is that the asset subject to the charge is not finally appropriated as a security for the payment of the debt until the occurrence of some future event. In the meantime the chargor is left free to use the charged asset and to remove it from the security.' At [138] Lord Walker referred to what he called '... the essential difference between a fixed charge and a floating charge'. He said: a fixed charge the assets charged as security are permanently appropriated to the payment of the sum charged, in such a way as to give the chargee a proprietary interest in the assets. So long as the charge remains unredeemed, the assets can be released from the charge only with the active concurrence of the chargee. The chargee may have good commercial reasons for agreeing to a partial release. If for instance a bank has a fixed charge over a large area of land which is being developed in phases as a housing estate (another example of a fixed charge on what might be regarded as trading stock) it might be short-sighted of the bank not to agree to take only a fraction of the proceeds of sale of houses in the first phase, so enabling the remainder of the development to be funded. But under a fixed charge that will be a matter for the chargee to decide for itself.'


case_title: Waters v Widdows [1984] VR 503

case_text: also referred to Waters v Widdows [1984] VR 503, another case concerning a charge over book debts. Nicholson J, after citing re Yorkshire Woolcombers found an inescapable inference that it was intended that the chargor company in that case should continue to carry on its business in the ordinary way so far as its book debts and stock in trade were concerned.