case_text: On a purely textual analysis of the relevant provisions, I am of the view that either argument is reasonably tenable, although I have a marginal preference for the applicants' argument. On the other hand, having regard to the principles of construction more recently enunciated by the High Court of Australia ( CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 10 ; (1997) 187 CLR 297) , followed by Full Courts of this Court ( HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553) , not only with respect to taxation statutes but statutes generally, it would be inappropriate to confine oneself to a purely textual analysis. This is not to say that recourse may not be made to a textual analysis where there is a lack of guidance as to legislative policy from legitimate sources or where that policy as identified is incapable of manifestation through the text of the statute: Cf. Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 449. But that is not this case.


case_outcome: cited

case_text: Under s 102(2)(b) of the FMA a Registrar has the power to make orders 'in relation to substituted service' . The use of the words 'in relation to' provide a much wider power to the Registrar than merely the making of an order for substituted service. In Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620, Taylor J referred to the expansive meaning incorporated in the words 'relating to' . His Honour said: There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. See also Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68] ; Joye v Beach Petroleum NL and Another (1996) 67 FCR 275.


case_outcome: followed

case_text: Section 11 of the FMA has its equivalent in s 20 of the Federal Court of Australia Act 1976 (Cth). In Bird v Free and Others (1994) 126 ALR 475 at 479 Drummond J said of s 20 of the latter Act: The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group.


case_text: In making the orders for substituted service upon the applicant, Registrar Kavallaris was exercising the power of the court provided by ss 103 and 102(2)(b) of the FMA. A Registrar of the Federal Magistrates Court has power to make orders pursuant to the FMC Bankruptcy Rules: see Cheesman and Others v Waters and Another (1997) 148 ALR 21. 39 Although the applicant claimed that no direction had been issued authorising a Registrar to exercise the power of the court as prescribed by reg 20.00A(2) of the FMC Rules, a delegation for such purpose has been made pursuant to the Federates Magistrates (Delegations to Registrars) Approval 2006 ('the Delegations') on 23 May 2006. Pursuant to the Delegations each Registrar referred to in Sch 1 thereof is approved to exercise powers under s 102(2)(a) to (i) of the FMA including the powers mentioned in Sch 2 of the FMC Bankruptcy Rules, as prescribed by r 2.02 of those Rules. Registrar Kavallaris is nominated in Sch 1. 40 Pursuant to the Federal Magistrates Court (Bankruptcy) Direction 2006 ('the Bankruptcy Direction') it was directed that the powers referred to in Sch 2 of the FMC Bankruptcy Rules may be exercised by a Registrar. The Delegations thus complete the authority provided to Registrars by Sch 2 of the FMC Bankruptcy Rules.


case_outcome: applied

case_text: In Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84 the High Court held that a court created under s 71 of the Constitution may, if so authorised, delegate the exercise of its judicial functions to an officer of the court provided that the exercise of that power is subject to review. Such review must be by way of a hearing de novo by a Justice or Judge of the court in accordance with s 72 of the Constitution (see Mason CJ and Deane J at 95). 20 Pursuant to s 99 of the FMA Registrars of the Federal Magistrates Court may be appointed as officers of the Federal Magistrates Court. Subsection 104(2) of the FMA provides that a party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court pursuant to subs 102(2) or subs 103(1) of the FMA may apply to the Federal Magistrates Court for review of that exercise of power. Such provisions thereby satisfy the requirements of the delegational functions referred to in Harris v Caladine .


case_title: Joye v Beach Petroleum NL and Another (1996) 67 FCR 275


case_outcome: distinguished

case_text: The applicant submits that s 8 of the FMA requires that the Federal Magistrates Court consist of a Chief Federal Magistrate and Federal Magistrates, but does not include Registrars. The applicant relies upon Kotsis v Kotsis [1970] HCA 61 ; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21 ; (1971) 122 CLR 114 in support of its submissions that the Registrar of the Federal Magistrates Court cannot exercise the powers of that court. 17 In Kotsis v Kotsis the High Court determined that a Deputy Registrar of a State Supreme court had no power to make an order for costs. Windeyer J observed at 91-92: 'Nevertheless I think that when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer' . The same principle was applied in Knight v Knight . 18 Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.


case_text: The applicant also submits that the decision of the High Court of Australia ('the High Court') in Re Bryant: Ex parte Guarino [2001] HCA 5 ; (2001) 75 ALJR 478 , which upheld the constitutional validity of the appointment of Federal Magistrates, was made 'without the assistance of counsel, and under the pressure of a hearing the next day' . The applicant submits that the issue under consideration in that case, namely whether the appointment of Federal Magistrates by Parliament is constitutional, is one of public importance and should be reconsidered by either the Full Court or the High Court. 9 The Federal Magistrates Court is a court created pursuant to the power contained in s 71 of the Constitution , and s 77 of the Constitution permits Parliament to make laws defining the jurisdiction of any federal court it has created. The Federal Magistrates Court exercises the judicial power of the Commonwealth invested under Ch III of the Constitution . Section 10 of the FMA invests the Federal Magistrates Court with such original jurisdiction as is vested in it by laws made by Parliament either by express provision or by application of s 15C of the Acts Interpretation Act 1901 (Cth). The Federal Magistrates Court is a court of record and is a court of the law and equity (see subs 8(3) of the FMA). 10 The Federal Magistrates Court is to be constituted, for the purpose of the exercise of its jurisdiction, by a single Federal Magistrate as provided by s 11. Section 79 of the Constitution refers to judges as being those who are entitled to exercise federal jurisdiction. However, as held in Re Bryant: Ex parte Guarino by Hayne J the title of the judicial officer of 'magistrate' as referred to in s 8 of the FMA is of no consequence. His Honour said at [8]: Nevertheless, it is clear when regard is had to s 71 and the power given to the Parliament to create "other Federal courts" that the title given to the judicial officer... is not determinative of the constitutional reach of s 79 and the other provisions in Ch III. The constitutional reach of s 79 extends to the Federal Magistrates appointed to serve in the court created by the Parliament by the Act. 11 Re Bryant: Ex parte Guarino determined that the Commonwealth possesses power to appoint Federal Magistrates. Such decision is binding on this Court. The absence of counsel before Hayne J in Re Bryant: Ex parte Guarino and any urgency involved in the hearing of that matter are not relevant issues for this Court in deciding whether to reconsider that decision. Settled precedent would become fragile indeed if circumstances extraneous to the issues decided could cast doubt upon their authority. 14 The name 'the Federal Magistrates Service' is merely a name by which the Federal Magistrates Court may be known. The fact that subs 8(2) of the FMA provides for an alternative name for that court is irrelevant to its statutory creation. The creation of the court and of its constitutional validity has already been determined in Re Bryant: Ex parte Guarino . 15 It follows that the applicant's submissions concerning the constitutional validity of the appointment of Federal Magistrates and of the Federal Magistrates Court are rejected.


case_outcome: considered

case_text: Quite apart from its statutory origins, the Federal Magistrates Court has power to punish for contempt (see s 17 of the FMA). It was recognised in the United Kingdom that a court of assize or of nisi prius which had certain powers, including powers to punish for contempt, were regarded as superior courts although not principal superior courts: see Re Fernandes [1861] EngR 489 ; (1861) 6 H & N 717; 158 ER 296 at 300-301. However, for the above reasons such historical indicia of a court have no application to the Federal Magistrates Court. 24 For the above reasons, the submissions of the applicant that the Registrars of the Federal Magistrates Court cannot exercise administrative functions are rejected. 25 The applicant submits that the text of the Oath of Office administered to a Registrar differs from that taken by a Federal Magistrate, and that such difference demonstrates a limitation on the Registrar's powers to issue orders in the name of the Federal Magistrates Court.


case_outcome: referred to

case_text: The above principle, as it applied to the Federal Court of Australia was approved by the High Court in Re Jarman and Others; Ex parte Cook [1997] HCA 13 ; (1997) 188 CLR 595 per Toohey and Gaudron JJ at 616-617. Since the Federal Magistrates Court is court created under Ch III of the Constitution , the same principle applies. It follows that the exercise of power by a Federal Magistrate is a valid exercise of the power of the Federal Magistrates Court.


case_text: Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.


case_text: The applicant further submits that a Registrar of the Federal Magistrates Court is to be equated with a clerk of an inferior court. The applicant relies upon The Queen v Douglas and Others [1898] 1 QB 560, which held that the office of a clerk of such court was incompatible with a justice of the peace, and The Mayor and Aldermen of the City of London v Richard Henry Cox and Others (1867) LR 2 HL 239, which held that the Lord Mayor's Court in London is an inferior court.


case_title: The Queen v Douglas and Others [1898] 1 QB 560


case_title: Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZHDO v Minister for Immigration and Anor [2008] FMCA 1156. That judgment was given on 15 August 2008. The learned federal magistrate dismissed an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 24 December 2007 and handed down or sent on 10 January 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Nepal. He arrived in Australia on 29 November 2004. On 12 January 2005, he applied to the Department of Immigration and Citizenship for a protection visa. The Minister's delegate decided to refuse to grant the visa on 20 January 2005. The appellant has had two hearings in the Tribunal. The first decision affirming the delegate's decision was set aside by the Federal Magistrates Court and the matter was remitted to the Tribunal. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to refer to those two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: The relationship between s 162 and s 64U of the Act was considered by the Full Court in Doolan v Dare [2005] FCAFC 69 ; (2005) 142 FCR 287. Their Honours' conclusions in this regard concerning the Act as in force at the time with which this proceeding is concerned may be summarised as follows: (a) The Act assumes the existence of a right to be remunerated where a trustee in bankruptcy is appointed in the expectation that he or she will be remunerated and there is no prior arrangement to act gratuitously; (b) s 162, and not s 64U, provides the mechanism for fixing the remuneration to be paid to a trustee; (c) s 64U merely prescribes what is to occur at the first meeting of creditors in relation to a trustee's remuneration, and in the case of s 64U(8), at later meetings of creditors; (d) s 64U(2) requires that a trustee's stated wish to be remunerated at the rate prescribed by the Regulation be minuted; it does not require that effect be given to that wish; (e) a motion fixing the trustee's remuneration passed in accordance with s 64U is a resolution for the purposes of s 162(1); (f) s 162(4) does not prevent the creditors from fixing the trustees' remuneration in relation to work to be undertaken thereafter in a sum or at a rate less than that which would otherwise flow from the application of the prescribed rate; the trustee's entitlement to a minimum level of remuneration is established by s 161B; and (g) it is therefore incorrect to state that a trustee is permitted to elect to be remunerated at the prescribed rate; entitlement to remuneration at the prescribed rate arises by operation of s 162(4) when work is done for which no remuneration is fixed. 51 Neither party contended that, as a consequence of Mr Pantzer's failure to comply with the requirements of s 64U(5), the first meeting of Dr Wenkart's creditors was a nullity. Dr Wenkart's argument was that the failure to comply with s 64U(5) rendered ineffective the resolutions of the creditors fixing Mr Pantzer's remuneration. He additionally submitted that the proper construction of s 64U(8) when read with s 162(1) is that it is not possible for creditors at their first meeting to approve any remuneration for work done by the trustee. 52 It seems to me that Dr Wenkart's argument that the failure to comply with s 64U(5) rendered the creditors' resolutions ineffective is inconsistent with the conclusions of the Full Court in Doolan v Dare as to the significance of s 64U. Their Honours took the view that s 162, and not s 64U, provides the mechanism for fixing the remuneration to be paid to trustees. I therefore conclude that Mr Pantzer's failure to comply with s 64U(5) did not affect the validity of the motions carried at the first meeting of Dr Wenkart's creditors concerning Mr Pantzer's remuneration nor the motions on the same topic carried at later meetings. 53 I also reject Dr Wenkart's submission as to the significance of s 64U(8) when read with s 162(1). Section 64U(8) requires the President of a meeting of creditors other than the first meeting of creditors to request the trustee to lay before the meeting a statement of the amount of remuneration drawn by him or her from the funds of the bankrupt estate. That is, it is concerned with the drawing of remuneration, not the approval of remuneration. Nothing in s 64U(8) or s 162(1) suggests that the legislature intended to prevent creditors at their first meeting fixing by resolution of the creditors the remuneration of the trustee for work done before, at or (subject to the issue of prospective approval referred to below) after that meeting. 55 The practice of creditors approving future remuneration of a trustee in bankruptcy by reference to time-charging at the recommended rates set out in the IPAA guidelines is well established (see, for example, Pattison v Bellin at [2]). No instance of any Judge expressing disapproval of the practice was drawn to my attention. In Doolan v Dare the Full Court referred to Finkelstein's consideration of the history of the "fixing" of fees of insolvency practitioners and observed at [19] that the provisions of the Corporations Act 2001 (Cth) with which his Honour was concerned differ substantially from the provisions of the Act concerning the remuneration of trustees. In the above circumstances I do not consider it appropriate for a single judge to determine that a practice apparently sanctioned by other judgments of the Court is inconsistent with the Act. Having placed reliance on the view expressed by Finkelstein J, Dr Wenkart will be free, if so advised, to press his argument in this regard before the Full Court.


case_text: The provisions of s 165(1)(b) of the Act were also considered by Drummond J in In Re Dare [1992] FCA 509 ; (1992) 38 FCR 356 at 359-361. His Honour agreed with French J that it is necessary to read down s 165(1)(b) to avoid absurdity, noting that the legislative intent could not have been to proscribe the long-standing practice of members of partnerships being appointed as trustees and bringing their earnings as trustees into the pool of partnership income. Drummond J also expressed the view at 359 that it was difficult to identify any policy in the Act that would be served by reading the subsection as preventing a trustee dealing as the trustee chose with his or her income so long as the dealing was for the trustee's benefit. Finding guidance as to the limitation that should be placed on s 165(1)(b) in its precursor, s 134(1)(b) of the Bankruptcy Act 1924 (Cth), his Honour concluded that the subsection would not strike at an employee-trustee paying over or arranging to have paid to the trustee's employer his or her fees earned as trustee. Although Drummond J did not give express consideration to the position of an independent consultant trustee, I see no reason to limit the general approach adopted by his Honour so as to exclude its operation in respect of an independent consultant trustee. 39 Considering it appropriate to follow the approach adopted by Drummond J in In Re Dare, I reject the submission that Mr Pantzer's arrangements concerning his remuneration as trustee of Dr Wenkart's bankrupt estate contravened s 165(1)(b) of the Act. I also reject the alternative submissions that to the extent to which Mr Pantzer was paid remuneration in excess of the amount that he actually received from the Partnership he is liable to Dr Wenkart as the residuary beneficiary of the trust estate in respect of that amount. 40 It is not in dispute that persons in the employ of the Partnerships assisted Mr Pantzer in the performance of his duties as trustee of Dr Wenkart's estate. Those persons were not accurately described as either partners or staff of Mr Pantzer. 41 Section 64U(5) of the Act required Mr Pantzer, at the first meeting of Dr Wenkart's creditors, to state the respective rates at which his remuneration and that of the other persons who would be assisting him would be calculated. It appears from the minutes of the meeting that Mr Pantzer sought to comply with this requirement by providing creditors with a copy of the document described in [18] above.


case_text: In Korda, in the Matter of Stockford Limited [2004] FCA 1682 ; (2004) 140 FCR 424 at [30] Finkelstein J expressed doubt as to the validity of the practice of creditors "fixing" the prospective fees of liquidators on a time-charge basis. Dr Wenkart submitted that the Court should conclude that this practice is inconsistent with the requirements of the Act.


case_text: A first meeting of creditors is, in my view, a proceeding under the Act within the meaning of s 306(1) of the Act ( Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 per Carr J at [36] and Weinberg J at [42]-[53]). The defect in the resolutions was in the circumstances, I conclude, "a formal defect or irregularity" (s 306(1)).


case_text: However, the motion carried at the meeting held on 29 March 2000 approving Mr Pantzer's remuneration and "that of his partners and staff" from 11 March 2000 to 28 March 2000 in the sum of $11,811.40 suggests that by 11 March 2000 Mr Pantzer's claimed remuneration from 13 December 1999 calculated on the approved basis had reached the limit of $80,000 fixed by the creditors at their first meeting. I therefore conclude that the approval of $11,811.40 for remuneration from 11 March 2000 to 28 March 2000 was an amount additional to the amounts approved at the first meeting of creditors. On the same basis I conclude that the motion fixing the further remuneration of Mr Pantzer from 29 March 2000 to a limit of $68,188.60 beyond which further approval would be required from creditors was intended, together with the approval in respect of $11,811.40, to constitute approval for additional remuneration in a further amount of $80,000. It might have been arguable that by this motion the creditors reserved to themselves the fixing of any further remuneration beyond that amount (cf the resolution of creditors considered by Goldberg J in Pattison v Bellin [2000] FCA 1167 ; (2000) 103 FCR 590 at [2] and [33]). It does not appear that it has ever been so argued. 32 I conclude that on the proper construction of the above resolution, the creditors purportedly approved Mr Pantzer's remuneration as follows: (a) $60,744.70 for the period from 28 October 10 December 1999; (b) $80,000 for future remuneration from 13 December 1999; (c) $11,811.40 for the period from 11 March 28 March 2000; (d) $68,188.60 for future remuneration from 29 March 2000; and (e) $105,000.00 in accordance with para (a)(I) of the s 73 proposal. These amounts are reflected in the first eleven payment items shown on Mr Pantzer's schedule (see [9] above). 55 The practice of creditors approving future remuneration of a trustee in bankruptcy by reference to time-charging at the recommended rates set out in the IPAA guidelines is well established (see, for example, Pattison v Bellin at [2]). No instance of any Judge expressing disapproval of the practice was drawn to my attention. In Doolan v Dare the Full Court referred to Finkelstein's consideration of the history of the "fixing" of fees of insolvency practitioners and observed at [19] that the provisions of the Corporations Act 2001 (Cth) with which his Honour was concerned differ substantially from the provisions of the Act concerning the remuneration of trustees. In the above circumstances I do not consider it appropriate for a single judge to determine that a practice apparently sanctioned by other judgments of the Court is inconsistent with the Act. Having placed reliance on the view expressed by Finkelstein J, Dr Wenkart will be free, if so advised, to press his argument in this regard before the Full Court. 64 On 4 December 2001 Cutler Hughes & Harris advised Hunt & Hunt that Mr Pantzer's costs, expenses and remuneration were as follows: A. Trustee's remuneration These figures do not include any realisation and interest charges or GST payable that may become due or other possible liabilities such as insurance $183,875.11 B. Anticipated Trustee Costs and Expenses - to finalise all matters in the bankrupt estate in the event that all costs, expenses and remuneration are paid as at 30 November 2001 $8,600.00 C. Trustee's Legal Fees and Disbursements - as at 30 November 2001 $247,103.62 A. Total Further Anticipated Legal Fees and Disbursement - depending on terms of s73 proposal and date of acceptance. $3,000 to unknown $ Total costs of Administration - in the event that a s73 proposal goes ahead which excludes any dispute as to the trustee's entitlement for full remuneration and payment of his full costs and expenses as set out above $442,578.73 65 By a memorandum dated 8 January 2002 Hunt & Hunt repeated their request to Cutler Hughes & Harris for an itemised account of their costs. 66 By a letter dated 16 January 2002 Mr Pantzer advised Hunt & Hunt: My solicitors did not state in their facsimile to you of 11 December 2001 that an itemised Bill of Costs had been provided by it to the creditors. My solicitor's statement was that the Trustee: '...will provide an itemised Bill of Costs (as provided by Cutler Hughes & Harris) to the Creditors;...' I have been issued with legal Bills of Costs in relation to the estate for work up to November 2001. My solicitors are currently preparing Memoranda of Fees in relation to the work done since that date. The Bill of Costs which I have received, are of course, available for inspection by the creditors at any time. Please find enclosed copies of the bills with which [I] have already been issued. Upon receipt of the Bills of Costs from Cutler Hughes and Harris relating to work done from November 2001 I will provide you with those copies. ... Would you please confirm that your clients still require a taxation of those bills. In the event that your clients require taxation of the bills, would you please indicate: (a) Which creditor will provide me with the costs of making an application for taxation of the bills; and (b) Which creditor will undertake to provide payment of those costs or provide me with security for the payment of those costs by return letter. The evidence does not identify the copy bills apparently enclosed with the above letter.


case_text: It is not necessary for me to express a view on whether the practice whereby the respective Partnerships charged in their own names for Mr Pantzer's work as trustee was objectionable. I note, however, that in Re Hurt, Ex parte Hurt (1988) 80 ALR 236 at 240-241 French J expressed the view in the context of an employed trustee in bankruptcy that a trustee should render accounts for work done as a trustee in the trustee's own name. His Honour observed at 241 that while the scope of s 165(1)(b) of the Act must be read "somewhat less than literally to avoid absurdity", it could well be infringed by an arrangement under which the trustee in effect seeks to alienate his remuneration at source by abdicating to his or her employer the right to charge for the trustee's services.


case_title: Wenkart v Pantzer (2005) 223 ALR 384

case_text: In Wenkart v Pantzer (2005) 223 ALR 384 at [70]-[71] I said: Subsection 162(6) does not operate, in my view, to prevent a trustee whose remuneration is fixed, for example, on a time-spent basis, from causing some of the ordinary duties required by the Act to be performed by the trustee to be undertaken, in whole or in part, by persons under the trustee's supervision and control. If the section were to so operate it could be expected significantly to increase the costs of the administration of estates by rendering it impractical for a trustee to instruct less highly remunerated personnel to undertake aspects of the trustee's duties under the trustee's supervision. I conclude that subs 162(6) does not operate to require a taxing officer to disallow claims for remuneration by Mr Pantzer where the ordinary duties required by the Act to be performed by the trustee were performed by a person acting on behalf of Mr Pantzer and under his supervision and control. This view is consistent with the view expressed by Rogerson J in Re Ladyman (1981) 38 ALR 631 at 644 that a trustee can claim to be reimbursed for the cost of services rendered by persons employed exclusively by him or her. I also note that the Guide to Hourly Rates published by the Insolvency Practitioners' Association of Australia, which is recognised by reg 8.08, assumes that work will be undertaken by persons other than the trustee himself or herself. 48 I am not satisfied in the circumstances of this case that the erroneous description in the resolution of creditors of those who assisted Mr Pantzer rendered those resolutions ineffective to fix Mr Pantzer's remuneration. It may be assumed that the creditors accurately understood that the persons concerned were partners or employees of the Partnerships. Nothing in the evidence suggests that the precise nature of the relationship between those persons and Mr Pantzer was of any real interest to the creditors.


case_text: Additionally, as I noted in [2007] FCA 1589 at [64] , Mr Pantzer's claim for 85% of the sum of $115,406.07 (ie $98,095.16) has been the subject of litigation in other proceedings. In Wenkart v Pantzer (No 6) [2003] FCA 1210 published on 29 October 2003, Lindgren J dismissed a motion by Dr Wenkart for an extension of time within which to request that this claim be taxed. On that day Mr Pantzer's claim to be lawfully entitled to that sum was rendered effectively beyond challenge. The date upon which he is to be regarded as becoming lawfully entitled to the sum is, in my view, 14 days after Dr Wenkart became aware of the amount of the claim, namely 29 March 2002 (reg 8.09(1) of the Bankruptcy Regulations 1996 as then in force). This amount is reflected in the second unpaid amount listed in Mr Pantzer's schedule.


case_title: Wenkart v Pantzer [2007] FCA 1589

case_text: On 16 October 2007 I published reasons for judgment in this matter ( Wenkart v Pantzer [2007] FCA 1589]). On that day I stood the proceeding over to a date to be fixed for the purpose of making orders giving effect to those reasons. Having regard to the complex history of the matter I additionally invited the parties to draw to my attention any issues on which I had inadvertently failed to rule. 2 No agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment. Dr Wenkart took the view that my published reasons for judgment did not deal with all of the issues required to be resolved in this matter. 3 The proceeding was therefore relisted to allow the parties to make further submissions. On 12 November 2007 Mr Sheahan SC appeared with Mr Green for Dr Wenkart; Mr Creais, solicitor, appeared for Mr Pantzer and Mr Rea appeared for Hapday Holdings Pty Ltd. These reasons for judgment should be read together with those published on 16 October 2007. 33 Additionally, as I noted in [2007] FCA 1589 at [64] , Mr Pantzer's claim for 85% of the sum of $115,406.07 (ie $98,095.16) has been the subject of litigation in other proceedings. In Wenkart v Pantzer (No 6) [2003] FCA 1210 published on 29 October 2003, Lindgren J dismissed a motion by Dr Wenkart for an extension of time within which to request that this claim be taxed. On that day Mr Pantzer's claim to be lawfully entitled to that sum was rendered effectively beyond challenge. The date upon which he is to be regarded as becoming lawfully entitled to the sum is, in my view, 14 days after Dr Wenkart became aware of the amount of the claim, namely 29 March 2002 (reg 8.09(1) of the Bankruptcy Regulations 1996 as then in force). This amount is reflected in the second unpaid amount listed in Mr Pantzer's schedule. 57 The accuracy of Mr Pantzer's schedule so far as it concerns payments made to Cutler Hughes & Harris is not challenged by Dr Wenkart. Payments by Mr Pantzer to Cutler Hughes & Harris in the aggregate amount of $380,225 are evidenced by a list of cash payments ("the Cash Payments List") made during the period of the administration by Dr Wenkart's bankrupt estate provided to Dr Wenkart's then solicitors (Bruce & Stewart) by Mr Pantzer's then solicitors (Sally Nash & Co) under cover of a letter dated 7 October 2004 and placed in evidence by Dr Wenkart. At the heart of the dispute between Dr Wenkart and Mr Pantzer concerning the costs of Cutler Hughes & Harris is the question of whether all of the bills of costs of Cutler Hughes & Harris are required to be taxed to determine the total quantum of the costs that Mr Pantzer is entitled to recover from Dr Wenkart (see order 1 of the consent orders made on 11 March 2002 which are reproduced in [2007] FCA 1589 at [15] ). 58 Mr Pantzer's case is that there was no request for any of the amounts paid to Cutler Hughes & Harris to be taxed under s 167 of the Act other than the amount of $105,000 paid on the date that Dr Wenkart's bankruptcy was annulled. Robert Gorczyca of Bruce & Stewart, as the firm was then known, gave evidence that the first occasion on which he was provided with an accounting of the former bankrupt estate of Dr Wenkart was when he received the Cash Payments List (see [57] above). Before being retained by Dr Wenkart, Bruce & Stewart acted for creditors of Dr Wenkart's bankrupt estate. The evidence suggests that the only advice given by Mr Pantzer to Dr Wenkart and the creditors of his estate during the course of Dr Wenkart's bankruptcy is that referred to in [22] and [24] above. I therefore accept the accuracy of Mr Gorczyca's evidence in this regard. 59 However, Dr Wenkart's primary submission concerning the costs of Cutler Hughes & Harris is that this proceeding has been conducted on the basis of an agreement by Mr Pantzer to have the bills of costs of Cutler Hughes & Harris taxed, and that this agreement is reflected in the orders made by Lindgren J on 21 October 2003. Those orders are reproduced in [2007] FCA 1589 at [22] . It is therefore necessary to review the history of the dealings between Mr Pantzer and Dr Wenkart so far as they touch on the legal costs of Cutler Hughes & Harris. 60 The s 73 proposal put forward by Dr Wenkart by letter dated 18 January 2001 provided for certain bank cheques to be given to Mr Pantzer subject to the acceptance of the proposal by his creditors. One of the proposals was: the amount of $105,000.00 (in accordance with your letter of 7 December 2000) less the cash on hand you currently hold (as advised to be approximately $24,000) in the form of a bank cheque for your outstanding legal fees (including any associated with the current proceedings) due to Cutler Hughes & Harris up to the date and conclusion of the Section 73 meeting and its implementation. 61 I infer that there had been communication between Dr Wenkart and Mr Pantzer before Dr Wenkart formulated his s 73 proposal. This appears to be confirmed by par 4 of an affidavit sworn by Mr Pantzer on 8 March 2002. That paragraph reads as follows: At the date of the Section 73 proposal being put to me by the bankrupt on 18 January 2001 I determined the amount of the Trustee's remuneration and costs and disbursements incurred in the administration of the bankrupt estate at that time. Those amounts were $105,000.00 payable to me as Trustee and $105,000.00 payable to Cutler Hughes & Harris. In proceedings 7051 of 2002 my rights to recover remuneration, costs, charges and expenses were preserved. 78 The context in which Lindgren J came to make orders in this matter on 21 October 2003 was that the docket judge, who was then Beaumont J, was unwell. Lindgren J was thus more than usually dependent on information provided to him by the parties' respective legal representatives. On 11 March 2002 Beaumont J had made the consent orders that are set out in [2007] FCA 1589 at [15] . Those orders provided, in effect, that Dr Wenkart charged the Paddington property to secure the remuneration, costs, charges and expenses to which Mr Pantzer was, or might become, lawfully entitled as trustee of his bankrupt estate and recorded that Dr Wenkart "agreed to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree". I observe, incidentally, that there is no suggestion that the parties have agreed another time. 79 The orders made by Lindgren J on 21 October 2003 (see [2007] FCA 1589 at [22] ), although made after the filing of the cross-claim, were intended to enable the amount to which Mr Pantzer was "lawfully entitled" as trustee of Dr Wenkart's estate to be quantified. Those orders in effect, obliged Mr Pantzer to require the persons who had provided services to him with respect to Dr Wenkart's bankrupt estate (other than Cutler Hughes & Harris) to supply bills of costs pursuant to s 167 of the Bankruptcy Act and additionally obliged Mr Pantzer to notify Dr Wenkart of his claim for remuneration in respect of services provided after the annulment of Dr Wenkart's bankruptcy. I observe incidentally that the absence of any reference in the order to Mr Pantzer's entitlement to remuneration for services provided before the annulment of Dr Wenkart's bankruptcy supports my above conclusion that Mr Pantzer's entitlement in that regard had by that time been quantified. His Honour noted that Dr Wenkart conceded that upon completion of taxation of the claims for costs and remuneration referred to in the orders, the amount taxed would be amounts to which Mr Pantzer was lawfully entitled within the meaning of the orders made on 11 March 2002. 80 The explanation for Mr Pantzer not being obliged by the orders made on 21 October 2003 to require Cutler Hughes & Harris to supply bills of costs can be found in the transcript of the hearing on that day before Lindgren J. On that day Mr Johnson of counsel appeared for Mr Pantzer. One of the matters debated before his Honour was a procedure for quantifying the amounts to which Mr Pantzer was "lawfully entitled" within the meaning of order 1 of the consent orders made on 11 March 2002. Mr Johnson told his Honour: The position that we would seek is orders that we are lawfully entitled to a quantified amount of remuneration and costs and, your Honour, either to give directions as to who that procedure [sic] is to be quantified and then that attached to the charge. Mr Johnson later observed: Well, if your Honour was then minded to consider a position of a regime for quantification, we would say there should be some conditions, because we're concerned about this matter dragging on. 81 Mr Johnson went on to advise his Honour that the judgment of Beaumont J of 6 May 2003 (ie Wenkart v Pantzer [2003] FCA 471) dealt with the amounts due to Cutler Hughes & Harris. That judgment concerned Mr Pantzer's entitlement to the amount of Ms Sexton's certificate of taxation of 17 February 2003. Mr Johnson agreed with Lindgren J that, because Beaumont J had already determined the amount to which Mr Pantzer was entitled in respect of the costs of Cutler Hughes & Harris, those costs should be an exception to the order obliging Mr Pantzer to require service providers to supply bills of costs. Shortly thereafter the transcript records the following exchange concerning the way in which the orders to be made by Lindgren J should be drafted: His Honour: ....We have excluded from that order legal services provided to Mr Pantzer by Cutler Hughes & Harris. Now is that correct? That covers all legal services irrespective of when provided by Cutler Hughes & Harris? Mr Johnson: I believe it does, your Honour. And I also believe it extends to their out of pocket expenses, including counsel fees ... His Honour: In other words, that is already subject to the existing taxation? Mr Johnson: Yes. Again, I will check Ms Sexton's taxation records on that, your Honour. It does not appear that Mr Johnson later qualified or withdrew his affirmative answer to the last of Lindgren J's above questions and his Honour thereafter made the orders dated 21 October 2003. 82 For the reasons given above, it appears that Mr Johnson's understanding on 21 October 2003 of the ambit of Ms Sexton's taxation was erroneous. However, I see no reason to conclude that Dr Wenkart's legal representatives were aware of Mr Johnson's error; Dr Wenkart's solicitors had requested a comprehensive taxation of the costs of Cutler Hughes & Harris. I conclude that it is not now open to Mr Pantzer in this proceeding to adopt an approach that is inconsistent with the basis upon which Lindgren J was invited to make the orders dated 21 October 2003. 83 The transcript of the hearing before Lindgren J on 21 October 2003 also reveals that on that day Mr Johnson accepted that the orders that Lindgren J was being invited to make would extend to other legal services provided to Mr Pantzer, including by him and his instructing solicitors, Sally Nash & Co. Nonetheless, Mr Pantzer now submits that the amounts paid by him to Mr Johnson, Sally Nash & Co and Mr P Walsh of counsel are all amounts to which he is lawfully entitled from Dr Wenkart because Dr Wenkart made no request for the relevant bills of costs to be taxed pursuant to s 167 of the Act. Again, I take the view that it is not now open to Mr Pantzer in this proceeding to adopt an approach that is inconsistent with the basis upon which Lindgren J was invited to make the orders dated 21 October 2003. The bill of costs of Sally Nash & Co was certified by a taxing officer on 13 December 2004. The respective bills of costs of Mr Johnson and Mr Walsh were certified by a taxing officer on 12 January 2005. The quantum of Mr Pantzer's costs in respect of the legal services provided by those legal representatives was determined within the meaning of order 1 of the orders of 11 March 2002 by the respective certificates of taxation. 84 As mentioned above, the significance of the date 31 October 2002 is that it is the date of the filing of Mr Pantzer's deemed cross-claim seeking "an order in aid of [the Court's] order made on 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of the [Paddington property]" (see [2007] FCA 1589 at [17] ). 85 As noted in [2007] FCA 1589 at [39] - [44] , the Full Court disagreed with the construction initially given by me to the orders made on 11 March 2002 and 21 October 2003. Nonetheless it is, I think, uncontroversial that Dr Wenkart's agreements to pay the remuneration, costs, charges and expenses to which Mr Pantzer is "lawfully entitled" from him is an agreement to pay within 28 days of the determination of the quantum of "the same". The charge over the Paddington property secures the payments by him of the relevant amount within that period of time. That is, Mr Pantzer is not entitled to exercise rights under the charge created by order 2 of the consent orders until Dr Wenkart defaults on his agreement to pay. By filing his cross-claim Mr Pantzer sought to exercise rights in reliance on that charge. 86 There is no dispute between the parties that the total amount received by Mr Pantzer as trustee of Dr Wenkart's bankrupt estate was $769,191.66. It is the payments made by Mr Pantzer that are controversial or perhaps, more accurately, the identification of the date or dates upon which the quantum of the amount or amounts to which Mr Pantzer is lawfully entitled was determined. 87 As indicated above, I accept that the creditors of Dr Wenkart's bankrupt estate authorised Mr Pantzer's remuneration in an aggregate amount of $325,744.30. Mr Pantzer's schedule reveals that between 13 December 1999 and 10 March 2000 he paid himself 30 cents more than the creditors had authorised. This may be ignored on the de minimis principle. The total amount of authorised payments made by Mr Pantzer to himself by way of remuneration earlier than 31 October 2002 was thus $325,744.60.


case_text: The appellant argues that the RRT did not treat the views expressed by commentators as being the test for application of Article 1C(5). In support of this, the appellant refers to the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 at [184] where Allsop J, with whom a majority of other judges agreed, said: "The approach is not to ask whether a claim of such a well-founded fear has been made out, but to ask whether, in respect of someone who has been recognised as a refugee (that is who has made out that claim), circumstances have so changed as to warrant the conclusion that the well-founded fear which previously existed can no longer be maintained as a basis for refusing to avail himself or herself of the protection of the country of nationality and, so, that the protection of the Convention should cease. A lack of demonstrable clarity in the reality and durability of the change in relevant circumstances will lead to the grounds for cessation not being established ." (Emphasis added) 15 I accept that for the purpose of the present case the emphasised formulation of the test is appropriate and that this was the test addressed by the RRT. 16 The appellant submits that the observation by the RRT that the expressions of the commentators (which were to similar effect as the approach later enunciated by Allsop J) do not constitute "legal tests" evidences that the wrong test was applied by the RRT. 17 I do not accept this submission. The correct test is enunciated by the RRT. The RRT rightly notes that it is important to return the language of the Convention and there is no reason to doubt that the RRT has done this. The use of the expression "legal tests" does not signify that the RRT has adopted a different or inconsistent approach, but rather that it was conscious of the need to apply the language of the Act . On a fair reading of the reasons, I consider that the RRT has sought to apply and has formulated the correct approach to the question, while at the same time bearing in mind the importance of giving primacy to the language of the Convention. 18 In addition, the appellant submits that in the application of the test to the circumstances of the case, the RRT has not correctly applied the test because it has ignored a number of relevant circumstances. 36 The respondent relies on the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60. Black CJ, Mansfield and Stone JJ agreed that s 36(3) -(5) had to be satisfied in respect of an application for a permanent protection visa where the person had been previously accepted as a refugee at an earlier time. Black CJ at [25] referred to the concurrence of Mansfield J at [59] and Stone J at [149] in these terms: "... whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa . The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the appellant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires." (Emphasis added) 37 In my view, the above statement of principle by the majority accords with a reasonable interpretation of the language of s 36(3) -(5). In terms, s 36(2) requires that whenever there is an application for a protection visa of any kind, the Minister must be satisfied that Australia has protection obligations to the applicant. Subsections (3), (4) and (5) expressly exclude the operation of such obligations unless the person has a well-founded fear of persecution on Convention grounds. These provisions are in terms calculated to enliven a requirement that there must exist a well-founded fear where a new claim is made for a protection visa. The making of the claim expressly activates the requirement and this is not displaced by generalised overtones which are said to emerge inferentially from the terms of Article 1C(5) when that provision did not contemplate legislative modifications of the type enacted in s 36. 38 The above statement in NBGM is the most recent Full Court statement on the question as to the interpretation and interaction between s 36 as amended and Article 1C(5), and I am bound by this expression of principle. I note that special leave has been granted by the High Court in relation to that proceeding, and that the High Court has recently heard the appeal and reserved its decision. 39 In these circumstances, the appellant submits that the reasons of Wilcox and Madgwick JJ in the earlier Full Court case QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 should be followed and applied. In that case, the majority held that if the decision-maker is satisfied that an applicant has already been recognised as a refugee under Art 1A(2) of the Convention and is not satisfied that this status has ceased under Art 1C(5), then Australia will have protection obligations to the applicant. The appellant says that on a correct reading, NBGM has no ratio-decidendi and therefore no application, or alternatively that it is authority contrary to the position of the respondent. It is argued that on a correct analysis, it can be seen that Stone J arrived at her decision in her separate reasons on a basis inconsistent with reasoning of Black CJ and Mansfield J. The appellant submits that for this reason, and notwithstanding her Honour's statement at [149] expressing her agreement with the proposition set out therein, the position as articulated in [25] of Black CJ's reasons should not be followed. Therefore, it is said, the majority decision in QAAH correctly expresses the law and must be applied. 40 Where recently three members of a five-member Full Court have expressly committed to a specific statement of principle as being applicable to the question before me, I consider that I should follow that statement. In my view, the position as stated by Black CJ in [25] cannot be said to be clearly wrong. The question before me is not to be resolved by arcane dissection and analysis of the chains of reasoning by each of the five different members of the Court of the type which has been adopted in the arguments in relation to the ratio-decidendi of NBGM . The concurrence of the majority judges in the statement as to the interpretation and application of s 36 as amended is conclusive for the determination of the question before me on this issue. 41 The consequence of this in the present case is that I am not persuaded the RRT has erred in requiring that it must be satisfied that the appellant had a well-founded fear of persecution, or in finding that the appellant did not have a well-founded fear of persecution for a Convention reason. Nor have I been pointed to any error in the reasons of Emmett FM that would warrant the setting aside of this decision. The appeal is therefore dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 29 September 2006 Counsel for the Appellant: L J Karp Solicitor for the Appellant: Legal Aid New South Wales Counsel for the Respondents: T Wong Solicitor for the Respondents: Clayton Utz Date of Hearing: 24 May 2006 Date of Final Written Submissions: 6 June 2006 Date of Judgment: 29 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1296.html


case_text: In these circumstances, the appellant submits that the reasons of Wilcox and Madgwick JJ in the earlier Full Court case QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 should be followed and applied. In that case, the majority held that if the decision-maker is satisfied that an applicant has already been recognised as a refugee under Art 1A(2) of the Convention and is not satisfied that this status has ceased under Art 1C(5), then Australia will have protection obligations to the applicant. The appellant says that on a correct reading, NBGM has no ratio-decidendi and therefore no application, or alternatively that it is authority contrary to the position of the respondent. It is argued that on a correct analysis, it can be seen that Stone J arrived at her decision in her separate reasons on a basis inconsistent with reasoning of Black CJ and Mansfield J. The appellant submits that for this reason, and notwithstanding her Honour's statement at [149] expressing her agreement with the proposition set out therein, the position as articulated in [25] of Black CJ's reasons should not be followed. Therefore, it is said, the majority decision in QAAH correctly expresses the law and must be applied.


case_outcome: discussed

case_text: The plaintiff relies on the test stated by Austin J in Dean-Willcocks v Air Transit International Pty Limited [2002] NSWSC 525 ; (2002) 55 NSWLR 64 (" Dean-Willcocks") , in particular, at [34]. Mr Taylor and Mr Johnson accept that this is the correct approach although they say that the case is distinguishable from the present proceedings. 10 Austin J said at [34] in Dean-Willcocks that the court's task is to identify and weigh the advantages and disadvantages to the plaintiff and the defendants as a whole, and in terms of the efficient use of the court's resources, having regard to the commonality of issues raised by each claim and the court's ability to case manage the proceedings so as to minimise disadvantages. 11 His Honour said at [35] that there are some special features of unfair preference proceedings which may justify the grant of leave even though leave would not be granted in similarly constituted proceedings which have a different subject matter. It is unnecessary to repeat the three considerations to which his Honour referred at [35]. 14 The submissions of Mr Taylor and Mr Johnson are that there ought to be 31 separate proceedings rather than one consolidated action. They submit that many of the factors which were present in Dean-Willcocks are not applicable to the present proceeding. The principle matters to which they point are fourfold. 15 Firstly, they say that separate proceedings have already been commenced in this court and that those proceedings can be case managed, so it is submitted, just as efficiently as one consolidated action. 16 Secondly, they submit that the question of insolvency can be determined in the separate proceedings in a way which will bind all of the defendants. 25 In Dean-Willcocks, Austin J pointed out that one of the factors which justify the joinder of a number of defendants is the fact that the case management of the proceedings is allocated in the Supreme Court of New South Wales to the Corporations List. That is a regular weekly list within which issues of this type are dealt with and their progress is monitored and dealt with expeditiously. 26 There is a separate Corporations List in the Federal Court. A Corporations Duty Judge sits on Fridays at 9.30am to hear matters referred from a registrar. Urgent applications may be made directly, on any day of the week, to the rostered Corporations Duty Judge. At present the Corporations Duty Judges are by rotation, Justices Emmett, Gyles, and Lindgren, although other members of the Court's Corporations Panel fill that role if one or other of those judges is not available. Details of the Court's administrative arrangements for dealing with Corporations matters are contained in a notice to practitioners issued by the NSW District Registrar on 6 February 2006. 27 I will myself case manage the present proceedings but in the event that something may arise at a time when I am not available, the matter could be dealt with by the Corporations Duty Judge who is sitting at that time to deal with urgent applications. The matter can therefore be dealt with and managed in much the same way as matters are managed in the corporations list of the Supreme Court of New South Wales.


case_text: The approach adopted by Austin J was followed by Young CJ in Eq in Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited [2002] NSWSC 1191. His Honour considered that the best way of dealing with the matter was to apply a common sense approach to the issue. I respectfully follow what was said by Austin J and by the Chief Judge in Equity as guiding the exercise of my discretion in the present case. 13 The present proceedings are at a very early stage. The "consolidated" proceeding and the 38 separate proceedings were commenced close to the expiration of the limitation period. The plaintiff proposes to discontinue against seven of the defendants, leaving 31 in the consolidated proceeding or 31 separate actions if I refuse leave in matter NSD439 of 2006.


case_title: ACS v Anderson [1975] 1 NSWLR 212

case_text: The circumstances of this case are not quite the same as ACS v Anderson [1975] 1 NSWLR 212, to which I was referred in argument. There it was held that the entitlement of both the Crown and the accused to appeal against an evidentiary ruling, thereby providing a means of determining the question raised by an application for declaratory relief, was a ' cogent reason for the jurisdiction being declined ': at 217, per Hutley JA. In the present case, the prosecution does not yet have a means of challenging the Judge Advocate's ruling. But the likelihood is that it will soon have a means of challenging any similar ruling in this Court. 89 The evidence does not establish that there are any pending courts martial that will necessarily give rise to the same legal issue as that presented by the Judge Advocate's ruling in the present case. Even if the same issue does arise, the applicants do not suggest that a later court martial will be bound to follow the Judge Advocate's ruling. If that ruling is as flawed as the applicants suggest, they will be able to challenge it before the court martial when it convenes. 90 Furthermore, the intervention of this Court would sanction significant delay by the applicants, for which no adequate explanation has been given. The court martial process has been fragmented to the detriment of the Accused. Indeed, the making of a declaration will effectively require the court martial to reconsider the admissibility of the Record of Interview in the light of other arguments advanced by the Accused. An alternative procedure, which is sanctioned by Parliament and protects the interests of accused persons, is likely to be available shortly. This procedure will allow any ruling to the same effect as that made by the Judge Advocate, insofar as it has value as a precedent, to be challenged in this Court.


case_text: The expression ' the Commonwealth ' as used in s 39B(1A)(a) of the Judiciary Act , is not to be construed narrowly. It includes statutory corporations which are agencies or instrumentalities of the Commonwealth: ASIC v Edensor , at 582 [43], per Gleeson, Gaudron and Gummow JJ; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136, at 152-153 [48] (and cases cited there) per McHugh J. However, it is not only a corporation that can be ' the Commonwealth ' for the purposes of s 39B(1A)(a) of the Judiciary Act . In Commonwealth v Lyon [2003] FCAFC 284 ; (2003) 133 FCR 265, at 271 [21], the Full Federal Court considered it ' likely ' that the Commissioner of the Australian Federal Police was to be regarded as the Commonwealth for this purpose.


case_text: Paragraph 2.3.4 of the Defence Security Manual provides as follows: '2.3.4 DSA-SIU [Defence Security Authority Security Investigative Unit] is responsible for: a. liaising with external agencies involved with reportable major security incidents and investigating serious and complex security incidents relating to offences under the: i. Crimes Act 1914 , ii. Criminal Code Act 1995 , iii. Public Service Act 1999 , and iv. Defence Force Discipline Act (DFDA) 1982 (limited), b. referring appropriate incidents to the Service Police, AFP or ASIO, c. liaising with other internal and external investigating agencies, d. ensuring that security incidents are reported and maintained within the Defence Policing and Security Management System (DPSMS) for statistical purposes, and e. linking security investigation outcomes into the development of policy, training and vetting'. 35 The Judge Advocate recorded that he had sat without members of the court martial pursuant to s 141(7) of the DFD Act , to consider the admissibility, inter alia , of the Record of Interview. He also recorded that he had received oral and written submissions from the legal representatives of the parties. 36 The Judge Advocate noted that there were effectively two relevant sources of " legislated evidence law of potential application '. The first was Pt 6 of the DFD Act . The second was the Evidence Act 1995 (Cth) ( ' Evidence Act '), which could apply to a court martial by virtue of s 146 of the DFD Act . He pointed out that s 8(1) of the Evidence Act provides that, subject to certain irrelevant exceptions, the Evidence Act is not to affect the operation of the provisions of any other Act. He also noted that the Evidence Act does not authorise the conduct of investigative action and does not afford a person conducting an investigation any rights. 50 Section 77(i) of the Constitution empowers the Parliament, with respect to any of the matters mentioned in ss 75 and 76 of the Constitution , to make laws defining the jurisdiction of any federal court other than the High Court. Section 75(iii) confers original jurisdiction on the High Court in all matters in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. Section 39B(1A)(a) of the Judiciary Act is an exercise of Parliament's power pursuant to s 77(i) of the Constitution . The provision defines the jurisdiction of the Federal Court with respect to a limited class of the matters mentioned in s 75(iii) of the Constitution : Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559, at 581 [40], per Gleeson CJ, Gaudron and Gummow JJ (with whom Hayne and Callinan JJ agreed generally). 61 The precise character of the power exercised by a court martial may be debatable. In White v DPP at [10], Gleeson CJ cited Professor Harrison Moore's description of courts martial as tribunals which exercise a ' judicial function but which stand outside Chapter III '. The Chief Justice later adopted (at [14]) the view of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 578, at 574, that service tribunals exercise a: 'power sui generis which is supported solely by s 51(vi) [the defence power] for the purpose of maintaining or enforcing service discipline'. 62 Gummow, Hayne and Crennan JJ seemed to think that a court martial exercises judicial power, but not the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution : White v DPP , at [50]-[51]. Callinan J, with whom Heydon J agreed, considered that courts martial ' undoubtedly exercise a form of judicial power ', but that the exercise of that power is outside Chapter III: White v DPP at [214], [235]-[236].


case_title: Bacon v Rose [1972] 2 NSWLR 793

case_text: The present case is quite different, for example, from Bacon v Rose [1972] 2 NSWLR 793, to which reference was also made in argument. In Bacon v Rose , Street CJ indicated that he would have been prepared to grant a declaration of right, had he concluded that committal proceedings had been improperly instituted against the plaintiff. His Honour said that (at 797): 'If an administrative or ministerial process is wrongly invoked against a person, then there is in my view just as much basis for recognizing and declaring a right in that person to be rid of the invalid administrative or ministerial yoke as there is in the case where a person's property is invalidly affected'. 92 The issue of law presented in the present case does not involve a threshold question as to the constitution of the court martial. Indeed the challenge to the Judge Advocate's ruling, if successful, will not terminate the court martial. On the contrary, it will require the court martial to reconvene and to consider further arguments relating to the Record of Interview. 93 Having reached the conclusion that the circumstances of the present case are not exceptional, it is perhaps not necessary to consider the exercise of discretion as a separate matter. If, however, there is a residual discretion to grant the declaration relief sought by the applicants notwithstanding the conclusion I have reached, I would not exercise it in favour of the applicants. In addition to the matters to which I have referred, declaratory relief would involve the potential for significant prejudice to the Accused. On the information I have been given, if the present application were to succeed the Accused would be the only member of the Armed Forces charged with an offence before a court martial ever to be denied the benefit of a favourable evidentiary ruling made by the court martial. And if the amending legislation is passed, he would presumably be the last such person. 94 For the reasons I have given, I do not think that it would be appropriate for the Court to grant the applicants the declaration they seek. Even if they establish that the reasoning of the Judge Advocate in support of his evidentiary ruling was flawed, this is not one of the most exceptional cases that would justify the grant of declaratory relief. In any event, I would not be prepared to exercise any discretion available to me in favour of granting the declaration sought by the applicants. 95 The application will be dismissed. Since the Accused does not seek a costs order if he is successful in the proceedings, there will be no order as to costs. I certify that the preceding ninety-five (95) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 21 August 2007 Counsel for the first and second applicants: Dr J G Renwick and Mr B L Jones Solicitor for the first and second applicants: Australian Government Solicitor Counsel for the second respondent: Mr B Levet Solicitor for the second respondent: Kinghan & Associates Date of hearing: 14 August 2007 Date of judgment: 21 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1282.html


case_text: The expression ' the Commonwealth ' as used in s 39B(1A)(a) of the Judiciary Act , is not to be construed narrowly. It includes statutory corporations which are agencies or instrumentalities of the Commonwealth: ASIC v Edensor , at 582 [43], per Gleeson, Gaudron and Gummow JJ; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136, at 152-153 [48] (and cases cited there) per McHugh J. However, it is not only a corporation that can be ' the Commonwealth ' for the purposes of s 39B(1A)(a) of the Judiciary Act . In Commonwealth v Lyon [2003] FCAFC 284 ; (2003) 133 FCR 265, at 271 [21], the Full Federal Court considered it ' likely ' that the Commissioner of the Australian Federal Police was to be regarded as the Commonwealth for this purpose. 54 Mr Levet does not suggest that there is no ' matter ' before the Court within the meaning of s 39B(1A)(a) of the Judiciary Act . This presumably reflects his acceptance of the view that there is a real controversy between the Director and the Accused as to the proper construction of the DFD Act : see Commonwealth v Lyon , at 272 [24] ff. 55 At one stage, Mr Levet argued that the DFD Act and the Defence Force Discipline Appeals Act 1955 (Cth) (' DFDA Act ') constitute a code and that, together, they have the effect of depriving the Court of jurisdiction to grant declaratory relief in respect of a court martial. Mr Levet did not, however, persist with this argument. 56 I therefore conclude the Court has jurisdiction to entertain the application for a declaration. It is not necessary to consider whether the Commonwealth was properly joined as a party to the proceedings. 57 There is no dispute that, if the Court has jurisdiction to hear and determine the application for a declaration, it has the power to grant such a declaration: Commonwealth v Lyon , at 271-272 [22]. 58 Mr Levet submits ' with some diffidence ' that the Commonwealth Crown is one and indivisible and cannot appear on both sides of the record. He acknowledges that the Commonwealth often appears on both sides of the record, for example where one Commonwealth agency takes proceedings against another or where a Commonwealth official prosecutes a Commonwealth agency. He also acknowledges that he can point to no authority which has upheld the submission. 59 I do not think that there is any substance in the submission.


case_text: The Explanatory Memorandum accompanying the 2007 Bill records that the proposed amendments are designed: 'to enable the [Director] to seek a determination from the Defence Force Discipline Appeal Tribunal on a question of law that arises in an [Australian Military Court] trial, at the conclusion of that trial. This amendment gives the Defence Force Discipline Appeal Tribunal the jurisdiction to hear and determine the question of law. These items also make the necessary consequential amendments to provisions in the [ DFD Act ] to give effect to this amendment. The rationale for this proposal has been explained by the High Court in Mellifont v. Attorney-General (Qld) [1991] HCA 53 ; (1991) 173 CLR 289 the emphasis being that there should be a procedure to obtain a correct statement of the law for future cases (that is, precedent) "... the purpose of seeking and obtaining a review of the trial judge's ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. ... The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting an error of law in criminal proceedings ..." The ability of the [Director] to obtain such rulings will serve to improve the efficiency and accuracy of future trials under the [ DFD Act ]'. (Emphasis added.) 74 The applicants do not suggest in their supplementary written submissions that it is inappropriate for me to take into account the terms of a Bill that is currently before Parliament (as distinct from taking into account legislation that has been passed by Parliament but is not yet in force). No doubt the applicants have adopted this stance because they recognise that it is likely that the 2007 Bill , insofar as it provides for the prosecution to refer a question of law to the Tribunal, will be enacted by Parliament in due course. In any event, I consider the applicants' stance to be a proper one for them to take, particularly having regard to the difficult position in which the Accused finds himself. 75 The applicants do point out, however, that the Bill, if passed, will apply only to future rulings of the proposed Australian Military Court. It will therefore not apply to rulings made by a court martial before the amending legislation comes into force. They also rely on the fact that the Bill makes no provision for appeals by the prosecution in respect of interlocutory rulings. Thus the proposed legislation will not incorporate provisions equivalent to s 5F of the Criminal Appeal Act 1912 (NSW), which allows interlocutory appeals in criminal prosecutions in certain circumstances.


case_text: The precise character of the power exercised by a court martial may be debatable. In White v DPP at [10], Gleeson CJ cited Professor Harrison Moore's description of courts martial as tribunals which exercise a ' judicial function but which stand outside Chapter III '. The Chief Justice later adopted (at [14]) the view of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 578, at 574, that service tribunals exercise a: 'power sui generis which is supported solely by s 51(vi) [the defence power] for the purpose of maintaining or enforcing service discipline'.


case_text: Whatever the precise characterisation of the powers of a court martial, the parties in the present case, in substance, agree that the observations of Brennan J in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1, govern the applicants' claim for declaratory relief. His Honour said this (at 25-26): 'In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. ... [A] court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order'. (Emphasis added.) 64 Dr Renwick relies on four matters to support the contention that the circumstances of this case fall into the ' most exceptional ' class: • the institution of the present proceedings caused no significant delay in the resolution of the court martial; • the applicants have no alternative avenue by which to test the ruling of the Judge Advocate; • the legal issue presented for resolution is of ' some wider significance '; and • the issue presented to the Court is straightforward, in the sense that the facts are not in dispute and the issue is one of law. 65 It is necessary to say something about each of the matters on which Dr Renwick relies before reaching a conclusion as to whether the principles laid down in Sankey v Whitlam are satisfied in the present case and whether, in any event, I should exercise any discretion that I have in favour of making a declaration (assuming the applicants' substantive argument is accepted). 66 In my opinion, it is not correct to say that there has been no significant delay in this case. The Judge Advocate gave his ruling on evidence on 11 April 2007. On that day, the prosecutor informed the Judge Advocate that he (the prosecutor) had instructions to seek judicial review of ' the decision ' (presumably the ruling) and to proceed expeditiously in the Federal Court. On this basis, the matter was adjourned. Despite the assurance given to the Judge Advocate, the proceedings in this Court were not commenced until 3 July 2007. When invited to give an explanation for the delay of nearly three months, Dr Renwick replied that it had taken that length of time to obtain instructions for the proceedings to be brought in the name of the Commonwealth. 67 There are, however, two difficulties with the proffered explanation. The first is that there is no evidence as to why obtaining instructions for the Commonwealth to be named as a party should take nearly three months. The second and more important difficulty is that, on the applicants' jurisdictional case (which I have accepted), the Court has jurisdiction to hear and determine the application for declaratory relief regardless of whether the Commonwealth is joined as an applicant in the proceedings. As I have explained, the Court acquired jurisdiction pursuant to s 39B(1A)(a) of the Judiciary Act , by virtue of the Director being named as an applicant for declaratory relief. 68 It seems to me that the applicants did not commence the proceedings in this Court expeditiously. In consequence the Accused, who has the benefit of a favourable ruling that would effectively entitle him to an acquittal at the court martial (as Dr Renwick accepted), has been subjected to a significant delay and (I am prepared to infer) the attendant stress and anxiety associated with the delay. Indeed, but for the Court offering a very early hearing date, the delay occasioned by the application would have been even greater. Moreover, in my view, it is undeniable that the court martial process has been fragmented, one of the evils to which Brennan J referred in Sankey v Whitlam . This is so notwithstanding that the Judge Advocate acceded to the prosecution's request to adjourn the court martial to enable the evidentiary ruling to be challenged in this Court. 69 Dr Renwick suggests that some time would have been required to conclude the court martial, even if no application had been made to the Court. But in the absence of a challenge to the Judge Advocate's ruling, there is nothing to suggest that the court martial could not have been reconvened within a very short time. Given Dr Renwick's concession that rejection of the Record of Interview was fatal to the prosecution's case, a reconvened court martial would had had no option but to dismiss the charges against the Accused. 70 It is true that the current statutory regime makes no provision for the prosecutor to appeal against unfavourable evidentiary rulings made by a judge advocate in the course of a court martial. However, during the hearing, I was informed by Dr Renwick that his understanding was that legislation had been enacted by the Parliament which would alter this situation, although his information was that the legislation would not come into force until October 2007. 86 In determining whether I should entertain the application for declaratory relief in respect of an evidentiary ruling made in the course of an incomplete court martial, there are two closely related questions. The first is whether the present application involves ' most exceptional ' circumstances, as Sankey v Whitlam suggests and the applicants accept is necessary for the grant of declaratory relief. The second is whether the Court should exercise its discretion in favour of granting the declaration sought by the applicants (assuming they make out their contentions on the question of law). 87 In my view, the applicants have not established that the circumstances of this case are most exceptional. I am prepared to accept that the issue of law that the applicants wish to ventilate is of some importance in relation to the organisational arrangements within the ADO and the Department of Defence for the investigation of alleged security breaches by defence personnel. However, the legislation before Parliament proposing to amend the DFDA Act , if passed (as seems likely), will provide a mechanism for testing the correctness of the Judge Advocate's reasoning in the present case (should that reasoning be followed by a subsequent court martial or by the Australian Military Court, once it is established). The new statutory procedure, unlike the procedure invoked by the applicants in the present case, will not deny the accused person the benefit of a favourable evidentiary ruling by reason of the presiding officer erring in law. Nor will it involve delay and fragmentation of the court martial or military court process, as do the current proceedings.


case_text: The second applicant, the Director of Military Prosecutions (' Director ') holds an office established by s 188G of the DFD Act . The Director is appointed by the Minister and holds office for a term not exceeding five years: ss 188GF(1), 188GH(1). The Minister may terminate the Director's appointment on certain grounds (s 188GN(1)) and must terminate the appointment in specified circumstances: s 188GN(2). The Director must be a full-time member of the armed forces: s 188GN(3). The functions of the Director include the following (s 188GA(1)): '(a) to carry on prosecutions for service offences in proceedings before ... a court martial, whether or not instituted by the Director of Military Prosecutions; ... (e) to do anything incidental or conducive to the performance of any of the preceding functions.' 13 The Registrar holds an office established by s 188F of the DFD Act . The functions of the Registrar include assisting the Judge Advocate General and the Chief Judge Advocate, by providing administrative and management services in connection with charges and trials under the DFD Act : s 188FA(1). 14 A court martial is either a general court martial or a restricted court martial: s 114(1). A restricted court martial consists of a President and not less than two other members: s 114(3). A restricted court martial cannot impose a term of imprisonment or detention exceeding six months: sch 2, cl 2. As has been noted, the present case involves a ruling made by the Judge Advocate in the course of a restricted court martial. 15 Subject to certain exceptions, a court martial has jurisdiction to try any charge of a service offence against any person: ss 3(1) (definition of ' charge '), 115(1). In general, the hearing of a matter before a court martial is to be in public: s 140(1). All service tribunals, including a court martial, must apply the criminal onus and standard of proof: s 10 (applying Chapter 2 of the Criminal Code to service offences). 16 Subject to the Constitution , a civil court does not have jurisdiction to try a charge of a service offence: s 190(1). The expression ' civil court ' is defined in s 3(1) to mean ' a federal court or a court of a State or Territory '. 48 Although not asking for the Commonwealth to be removed as a party, the Accused submits that the Commonwealth is not a proper party to the proceedings and that it has been joined as an applicant only in order to enliven the Court's jurisdiction. Mr Levet further contends on behalf of the Accused that the declaratory relief sought by the applicants, if granted, would have no direct legal effect upon the rights of the Commonwealth and that, insofar as the Commonwealth has an interest in the outcome of the proceedings, its interest is no different from that of the Director. According to Mr Levet, the Commonwealth is seeking to intervene in what is in substance a criminal prosecution, even though the prosecution does not involve the exercise of the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution : White v Director of Military Prosecutions [2007] HCA 29. 49 Perhaps because the applicants did not advance their alternative jurisdictional argument until the oral submissions, Mr Levet said very little about it. He did not, however, concede the correctness of the alternative argument advanced by Dr Renwick.


case_title: A v Boulton [2004] FCAFC 101 , 136 FCR 420

case_text: statutory power conferred upon an examiner to compulsorily obtain documents is in itself a provision which seriously intrudes upon the ability of a person to keep his documents otherwise confidential to himself. Given both the potential for a serious erosion into the confidentiality of an individual's documents and the consequences for non-compliance (including a substantial fine and/or imprisonment), it is a provision which must be construed according to its terms such that no greater power is in fact exercised than the words employed by the legislature permit. As noted by French J (as His Honour then was) in Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 433: Australia is a liberal democracy with a broad tradition of at least nominal resistance to encroachment upon established rights and freedoms. That view is reinforced by its adherence to the International Covenant on Civil and Political Rights, which relevantly provides in Art 17, inter alia, that: "No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence ..." The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected. Legislation, it has been accepted, will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, " unless a legislative intent to do so clearly emerges, whether by express words or necessary implication ": A v Boulton [2004] FCAFC 101 at [54] , [2004] FCAFC 101 ; 136 FCR 420 at 434 per Kenny J (Beaumont and Dowsett JJ agreeing).


case_title: Adamson v Noall [1967] VR 105

case_text: degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.


case_text: however, needs to be taken when considering the use to which reasons recorded for the purposes of s 29(1A) can be put. Care must be taken because Schedule 2(ea) to the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that the requirement to provide a statement of reasons imposed by s 13 of that Act does not apply to decisions of the Australian Crime Commission, including " decisions in connection with intelligence operations ". Counsel for the Commission urged that the legislative intent to exclude an entitlement to reasons should not be circumvented by reliance upon the record of reasons imposed by s 29(1A). That requirement, it was contended, may have been imposed to enhance decision-making and to facilitate accountability to Parliament — but not the Courts: cf Barnes v Boulton [2004] FCA 1219 , 139 FCR 356. There in issue was an asserted entitlement to be provided with the comparable record of reasons imposed by s 28(1A) of the 2002 Act before a person summonsed to give evidence was required to answer any questions. In rejecting that entitlement, Finn J concluded: [29] The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an "audit trail". Under s 59 of the Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee's powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC's investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme. What was not in issue in those proceedings was whether or not a record of reasons could or should be made available to a court in circumstances where the decision to exercise a power such as s 28 or s 29 was the subject of an application for judicial review. Where an exercise of power is the subject of a legitimate challenge by way of judicial review, it would seem curious that an existing written account as to why that power was being exercised should not also be available to this Court. If any part or parts of that record attracted a claim for public interest immunity privilege, or any other privilege, that claim can be resolved — as it was in the present proceedings. But, again, that issue need not be resolved. The records of reasons were in fact made available to this Court, albeit not the " statement of facts and circumstances " or the " legal submissions " to which they refer. Where the reasons of an examiner are available, it is considered that they should be carefully construed. Given the width of the powers conferred upon an examiner, a responsible exercise of those powers would require that the reasons disclose on their face that the examiner has given careful consideration to both the nature of the power being exercised and the circumstances of the case before him. Although the reasons of the examiner in the present proceedings do not disclose the careful consideration of the facts and circumstances which is required, that deficiency is not sufficient in the present case to make out the argument now sought to be advanced by the Applicants. The December 2008 notices required production within a little over a week; the January 2009 notices allowed some two weeks.


case_text: Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J. After referring to Pyneboard and other decisions of the Full Court of this Court, in Australian Securities Commission v Lucas (1992) 36 FCR 165. Drummond J summarised the position in respect to notices issued under s 155 as follows: ... so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information: (a) it must disclose on its face sufficient information to identify the "matter" with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and (b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought. This has been described as the " entitlement disclosure condition ": S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ. The Australian Crime Commission Act 2002 (Cth) confers functions and powers of fundamental importance upon the Commission. But it forever remains of importance that such powers as are conferred are exercised according to their terms and that Courts are vigilant to ensure that such powers are not exceeded. Perhaps to an ever greater extent than in other areas of legislative attention (eg Australian Securities Commission v Lucas (1992) 36 FCR 165 at 174), it is important to ensure that the purposes for which such powers as s 29 have been conferred are not frustrated by unmeritorious applications for judicial review. Although there are differences between each of the statutory provisions authorising a notice requiring the production of documents, s 29 of the present Act is to be construed as conferring upon an examiner " an effective, but not an oppressive, or unfair, power of investigation ". It is sufficient for present purposes to reject each of the arguments advanced on behalf of the Applicants. The exercises of the power conferred by s 29 are not vitiated by reason of either uncertainty in the terms with which each notice is expressed, any failure to consider a relevant consideration or by reason of any asserted unreasonableness as to the time within which production was required. The ambit of the power conferred by s 29 , the many features peculiar to the present statutory context and the differences in terminology as between s 29 and other statutory provisions serve as reminders to construe s 29 according to its terms. So construed, in the present proceedings, each of the decisions taken have been authorised by its terms.


case_title: Butler v Board of Trade [1971] Ch 680


case_text: 77C of the Bankruptcy Act 1966 (Cth) uses different language yet again. Section 77C(1)(b) permits a notice to be issued requiring a person to " produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act ... ". In respect to that provision it has been said that a " broad common sense approach " should be adopted. If the demand can be reasonably understood, the notice is valid: CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118 , 160 FCR 524. A statutory demand had there been issued under s 77C of the Bankruptcy Act 1966 and Moore J concluded: [39] The appellant made a subsidiary submission that the notice was not reasonably clear about what documents were required. The submission centred on the expression "associated entities" which is used in the definition of "examinable affairs" set out on the third page of the notice (containing extracts from the Act). The expression "associated entities" is defined in the Act (though that definition was not sent with the extracts) and the expression "private company" which is found in the definition of "associated entities" is a defined expression. In my opinion, the primary judge was correct in concluding that the Court should, when construing a notice of the type under consideration, take a "broad common sense approach", an expression which fairly synthesises the more detailed discussion of the Full Court in Pyneboard 57 FLR at 374-375; 39 ALR at 570-571. In construing the reference to "examinable affairs" and looking at the definition, including the expression "associated entities", a recipient could reasonably be expected to understand that the notice was seeking documents concerning the direct dealings of the bankrupt as well as documents concerning the financial affairs of associated entities. That term described with sufficient clarity and as an ordinary English expression what was comprehended by the more precise definition including the reference to private company.


case_title: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403