case_text: The decision of the Registrar to accept or reject an application is a purely administrative function, the decision depending upon whether or not such application satisfies the prescribed criteria ( Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [15] ). Similarly, the decision by the Registrar or his delegate that he is, or is not, satisfied of the requirement under s 190C (4)(b) is an administrative decision under the Act . As French J said in Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 261 in relation to the concept of "satisfaction" of the Registrar under s 190B , There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar's decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar's state of satisfaction is based upon some error of principle.


case_outcome: distinguished

case_text: In my view the applicant's argument confuses the terms of ss 190C (2) and 190C (4)(b). While there is obvious intersection between ss 190C (2) and (4), the matters of which the Registrar is required to be satisfied by each section are, in my view, quite different. In relation to s 190C (2), the Registrar must be satisfied as to the contents of the application and that it contains information required by ss 61 and 62 (cf Mansfield J in Northern Territory of Australia v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at [35] ), whereas in relation to section 190C (4) the Registrar must be satisfied as to the identity of the claimed native title holders including the applicant. 30 The applicant relied on Northern Territory of Australia v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 , where I note Mansfield J held in relation to s 190C (2) In my judgment, s 190C(2) relevantly requires the Registrar to do no more than he did. That is to consider whether the application sets out the native title claim group in the terms required by s 61. That is one of the procedural requirements to be satisfied to secure registration: s 190A(6)(b). If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration... It is not suggested that the face of the application in this matter raises such difficulties. (at [36]) 31 However while Doepel may be authority that, for the purposes of section 190C (2), the Registrar is not required to look beyond the terms of the application (cf Wakaman People No 2 v Native Title Registrar [2006] FCA 1198 ; (2006) 155 FCR 107 at 118), it does not necessarily follow that the same principle applies to the satisfaction required of the Registrar or his delegate by s 190C (4)(b). Indeed in the Wiri #2 Application, although the delegate was not satisfied as required by s 190C (4)(b), after considering each of the requirements of ss 61 and 62 the delegate was satisfied that the Application contained all the details and other information required by those sections, and accordingly complied with s 190C (2). With specific reference to the native title claim group, the delegate observed : There is nothing on the face of the description of the persons in the native title claim group to indicate that not all persons in the native title claim group are included in the description or that it is in fact a sub-group of the native title claim group for the area of the application. Having said that, I do have regard to information elsewhere before me in relation to this issue in my consideration of the authorisation condition under s. 190C (4)(b). But with the authority of Doepel in mind, I do not consider this information under this condition... 33 In my view the applicant is incorrect in submitting that Doepel is authority that, once the Registrar is satisfied of those matters under s 190C (2), in the case of an uncertified application the requirements of s 190C (4)(b) are met by the Registrar being satisfied that the claim group described in the application authorised the making of the application. 35 In that case an application was made by Mr Quall which stated that the native title claim group were eight "members of the Danggalaba Clan" who were all members of the one family. O'Loughlin J held that the delegate had erred in accepting the relevant application for registration. As his Honour pointed out, although the persons who claimed to be the native title claim group also claimed to be members of the Danggalaba Clan, they did not claim to be the only members of that Clan (at [40]). Further, as his Honour noted, it was apparent to the delegate that the family of eight was not the native title claim group - but, at most, only part of the relevant group (at [60]) - which comprised approximately 140-150 people. His Honour quashed the decision of the delegate on the basis that it should not have been accepted for registration. On reviewing the decision it is clear that his Honour was correct for at least two reasons relevant to the application before me - namely that: (i) the description of the native title claim group in the application before his Honour - clearly on its face a sub-group of a larger clan - did not comply with s 61 (1) and hence could not be satisfactory to the delegate for the purposes of s 190C (2); and (ii) because on the material before the delegate it was clear that the delegate could not be satisfied within s 190C (4)(b) that the applicant was authorised to make the application by all the other persons in the native title claim group.


case_outcome: discussed

case_text: The submissions of the applicant in relation to grounds 1 and 2 can be summarised as follows : • The delegate misconstrued the principles set out in Risk , and, as a consequence, erroneously considered that she was required to adjudicate between differing descriptions of a native title claim group, and make a factual determination as to the "correct" description of the group. This function is reserved for the Court in native title proceedings; • The delegate, because of her misconstruction of the principles in Risk , failed to appreciate that, in so far as the registration test is concerned, an assessment of the composition of a native title claim group is a function of the duty contained in s 190C (2), not s 190C (4)(b), and is limited to an assessment of the description of the claim group as it appears in the application and accompanying material; and • Having been satisfied that the requirements of s 190C (2) were met, the only matter which the delegate was required to be satisfied of in relation to section 190C (4)(b) was whether the claimant group, as it was described in the Wiri #2 Application, had authorised the making of the application. 12 In summary, the Registrar submitted in reply that s 190C (4)(b), on its proper construction, required the delegate's satisfaction that the applicant was authorised to make the application by all the other persons in the native title claim group (as that phrase is defined in ss 253 and 61 (1) of the Act ) and this requirement involved consideration of the composition of the native title claim group. In other words, the Registrar's role goes beyond merely accepting the correctness of an applicant's assertion that the persons who, according to their traditional laws and customs, hold communal rights and interests comprising the particular native title claimed are confined to those named or described in the application. 13 The term "native title claim group" for the purposes of the Act is defined by s 253 which, so far as relevant, reads: native title claim group means : (a) in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61 (1) ... 34 Finally, I do not accept the applicant's argument that the delegate misconstrued the decision of O'Loughlin J in Risk v National Native Title Tribunal (2000) FCA 1589. 35 In that case an application was made by Mr Quall which stated that the native title claim group were eight "members of the Danggalaba Clan" who were all members of the one family. O'Loughlin J held that the delegate had erred in accepting the relevant application for registration. As his Honour pointed out, although the persons who claimed to be the native title claim group also claimed to be members of the Danggalaba Clan, they did not claim to be the only members of that Clan (at [40]). Further, as his Honour noted, it was apparent to the delegate that the family of eight was not the native title claim group - but, at most, only part of the relevant group (at [60]) - which comprised approximately 140-150 people. His Honour quashed the decision of the delegate on the basis that it should not have been accepted for registration. On reviewing the decision it is clear that his Honour was correct for at least two reasons relevant to the application before me - namely that: (i) the description of the native title claim group in the application before his Honour - clearly on its face a sub-group of a larger clan - did not comply with s 61 (1) and hence could not be satisfactory to the delegate for the purposes of s 190C (2); and (ii) because on the material before the delegate it was clear that the delegate could not be satisfied within s 190C (4)(b) that the applicant was authorised to make the application by all the other persons in the native title claim group. 36 So explained, the finding of the delegate in the matter before me - relying on Risk - that she was satisfied of the Application's compliance with s 190C (2), but not satisfied of its compliance with s 190C (4)(b), is correct. Further, I do not agree with the submission of the applicant that it was clear from O'Loughlin J's reasons that, notwithstanding the continued existence of the dispute between the relevant parties, if the purported native title claim group in the Quall application had been differently framed, the delegate could, lawfully, have accepted the application for registration. On the contrary - in my view it is clear from his Honour's reasons that not only did the evidence indicate that the applicant was not authorised by all the other persons in the native title claim group, but a reframing of the application by the applicant to so contend (when he was clearly not authorised) would not have allowed the delegate to accept the application for registration (see in particular his Honour's comments at [63]-[66]). 37 Accordingly, in my view grounds 1 and 2 of the applicant's claim cannot be substantiated. 38 Ground 3 of the applicant's claim relates to grounds 1 and 2, and raises no additional issues. This is clear from the terms of ground 3 itself, and the submission of the applicant that, had the delegate not misdirected herself regarding the principles in Risk , she would have been satisfied that the requirements of s 190C (4)(b) were met. 39 I have already considered the decision of the delegate in relation to her state of satisfaction under s 190C (4)(b), and found that no error was made in the delegate's reasons for decision. 40 Like grounds 1 and 2, this ground also fails. THE COURT ORDERS THAT: 1. The application be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 29 April 2008 Counsel for the Applicant: N Kidson Solicitor for the Applicant: D & G Lawyers Counsel for the Respondents: D C Rangiah Solicitor for the Respondents: Holding Redlich Date of Hearing: 8 February 2008 Date of Judgment: 29 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/574.html


case_outcome: applied

case_title: Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242


case_outcome: cited

case_text: However while Doepel may be authority that, for the purposes of section 190C (2), the Registrar is not required to look beyond the terms of the application (cf Wakaman People No 2 v Native Title Registrar [2006] FCA 1198 ; (2006) 155 FCR 107 at 118), it does not necessarily follow that the same principle applies to the satisfaction required of the Registrar or his delegate by s 190C (4)(b). Indeed in the Wiri #2 Application, although the delegate was not satisfied as required by s 190C (4)(b), after considering each of the requirements of ss 61 and 62 the delegate was satisfied that the Application contained all the details and other information required by those sections, and accordingly complied with s 190C (2). With specific reference to the native title claim group, the delegate observed : There is nothing on the face of the description of the persons in the native title claim group to indicate that not all persons in the native title claim group are included in the description or that it is in fact a sub-group of the native title claim group for the area of the application. Having said that, I do have regard to information elsewhere before me in relation to this issue in my consideration of the authorisation condition under s. 190C (4)(b). But with the authority of Doepel in mind, I do not consider this information under this condition...


case_text: I have before me an amended application by Len Watson, Vassa Hunter and Nancy Riehl jointly on behalf of the Wiri People ("the applicant") to review a decision of a delegate of the first respondent, the Native Title Registrar ("the Registrar") not to accept the Wiri People #2 Claimant Application (QUD 6251 of 1998) ("the Wiri #2 Application") for registration under section 190A Native Title Act 1993 (Cth) ("the Act "). The decision was made by the delegate on 24 May 2007. The jurisdiction of the Court to review a decision of the Registrar not to accept a claim for registration is enlivened by s 190D of the Act , with the Court being seized of broad powers pursuant to that section ( Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 49-50). 2 The relief sought by the applicant is as follows : A. An order setting aside the decision of the Registrar to not accept the Wiri #2 Application for registration effective as from 24 May 2007 B. An order directing the Registrar to accept the Wiri #2 Application for registration and include in the Register of Native Title claims details of the application with effect from 24 May 2007 C. Such other orders as the Court thinks just and necessary. 3 The Wiri #2 Application was first entered on the Native Title Register on 2 April 1998. The application covered a broad area of country in Central Queensland, the eastern boundary of which abutted and extended to offshore islands beyond the coastline to the north and south of Mackay and the western boundary of which was located well inland of the coastline. 17 Reading together ss 190A (6) and 190C (4)(b), the logical conclusion is that, unless the Registrar or his delegate is satisfied that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group, the Registrar or his delegate must not accept the claimant application for registration. The information which the Registrar or his delegate can consider in making a decision as to whether the claimant application should be accepted is defined broadly by s 190A (3), and includes not only information contained in the application and other documents provided by the applicant (s 190A (3)(a)), but also any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests (s 190A (3)(b)). The breadth of the information the Registrar can take into account pursuant to s 190C (4)(b) was recognised by the Full Court in Western Australia v Strickland at 52 19 Further, the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 53, in considering the state of satisfaction required under s 190C (4)(b), agreed with French J that the decision of the Registrar or his delegate should stand if the decision was reached on material available to the Registrar's delegate, and it was not shown that the delegate had been informed by any error in principle in so doing. 20 In the circumstances of this case the delegate, inter alia : • was informed by the Central Queensland Land Council that, pursuant to s 203BE of the Act , it had certified another claim of the Wiri People, which overlapped and competed with the Wiri #2 Application, namely the Wiri Core Application; • considered anthropological reports attached to the Wiri Core Application supporting the existence of wider native title claim group than identified in the Wiri #2 Application; • after searching the Tribunal records, noted that the Wiri #2 Application and the Wiri Core Application were but two of a number of applications that had been made over the years by differently described or differently composed groups of Wiri People; and • noted that the meeting notice for the authorisation meeting for the Wiri #2 Application invited only the very persons ultimately described as the native title claim group in the Wiri #2 Application. 21 In these circumstances, it was open to the delegate to find that the relevant native title claim group was larger than the group identified in the Wiri #2 Application. The finding of the delegate that she was not satisfied that the applicant was authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group was, in my view, available on the material. 22 In relation to grounds 1 and 2 of the applicant's claim I consider that the applicant has itself misconstrued the basis of the delegate's decision, and incorrectly described the principles on which the delegate was required to make her decision. I take this view for the following reasons. 23 First, as I have already observed, s 190C(4)(b) does not confine the Registrar or his delegate to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction : Western Australia v Strickland at 52. The existence and nature of, and information in, the Wiri Core Application, which had been before the Native Title Tribunal previously, was both available to the delegate and relevant to her consideration of whether the applicant in the Wiri #2 Application was authorised to make the application on behalf of all the other persons in the native title claim group. 24 Second, in written submissions the applicant contended that the delegate erroneously considered that she was required to adjudicate between differing descriptions of a native title claim group, and make a factual determination as to the "correct" description of the group. However, it is clear from reading the delegate's Reasons for Decision that the delegate carefully avoided making such a determination. Indeed, the delegate clearly stated that : the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing.... The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application. 25 While the delegate did consider at some length the fact, and nature, of the Wiri Core Application, there is no indication the delegate was adjudicating between that group and the group identified in the Wiri #2 Application. As I have already found however, it was open to the delegate, in reaching her decision under s 190C (4)(b), to take into consideration, inter alia , the existence of that overlapping and competing application, the fact that the native title claim group it described was broader than the description in the Wiri #2 Application, and the fact that it had been certified pursuant to s 203BE by the Central Queensland Land Council. 28 Fourth, I do not accept the applicant's argument that s 190C (4)(b) restricts the Registrar to considering whether he is satisfied that the applicant is authorised to make the application by the persons described in the application as the native title claim group. Indeed, this argument runs contrary to findings in other cases, including that of the Full Court (endorsing the decision of French J) in Western Australia v Strickland , that the Registrar or his delegate is not confined in s 190C (4) to statements made in the affidavit or the information in the relevant application.


case_text: The respondent relies particularly on the reasons of Pidgeon and Owen JJ in FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69 ; (2000) 33 ACSR 739 to the effect that the legislative intent of s 1335 was that, in permitting the incorporation of a limited liability entity, it was necessary to ensure that persons who might have dealings, whether voluntary or involuntary, with such an entity should have a measure of protection from prejudice resulting from the limited liability character of a corporation. 10 In that case the anticipated costs of the moving party were $44,000; the plaintiff company's paid up capital was $4,001; it had no land registered in its name; from 1990 to 1995 (the last date on which it was required to file financial returns) it suffered operating losses after tax, save in 1995; and it did not file any answering affidavit. I would note, as well, that the pleadings were not before the court. Nor, it would seem, was there evidence of the relationship of the parties other than that the litigation concerned a contractual dealing. 11 Pidgeon and Owen JJ considered that the absence of land combined with the low share capital gave rise to an appearance that there was reason to believe that there were no assets to meet the costs. 14 For the reasons given by Heerey J to which I earlier referred I do not consider that the capital structure of Olivaylle provides reason suggesting it may not have either assets in excess of half a million dollars or else the capability to accommodate liabilities in such a sum. There is no credible testimony before me to suggest that it does not. It has been able to acquire a very expensive machine and it is the owner of what appears to be a significant business. I infer this both from the property holding it has and has from the size and pleaded capacity of the machine purchased from Flottweg. The character and duration of the prior business relationship of the parties and the fact that Olivaylle conducts a business on substantial land that it owns places the circumstances of this matter in a quite different field of discourse from those in FFE Minerals Australia Pty Ltd . 15 I would add, though, that while the respondent relies as a discretionary factory in support of its application upon its bringing the application promptly there is, in my view, something to be said for the proposition that it may have been excessively prompt and pre-emptory in the circumstances. I would say that its ready resort to this procedure might be said to invite some suspicion that it is at least a litigation tactic. The spectre held out of seeking indemnity costs, even if unsuccessful in the application for security, betrays either a misunderstanding of Olivaylle's obligations in this respect or else it was simply a high handed gesture. 16 There is no credible evidence establishing that there is reason to believe there is a real chance that could suggest there is reason to believe that Olivaylle will be unable to pay Flottweg's costs if successful in its defence. I simply am in a position of being asked to speculate about this matter, speculate in the absence of testimony providing any basis for suspicion that it will not, in the event of being unsuccessful, be able to pay those costs. I do not consider that the threshold requirement of s 1335(1) has been satisfied. I will dismiss the motion for security for costs with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J . Associate: Dated: 5 February 2007 Counsel for the Applicant: Mr J Teague Solicitor for the Applicant: Wallmans Lawyers Counsel for the Respondent: Mr S Doyle Solicitor for the Respondent: Baker & McKenzie Date of Hearing: 2 February 2007 Date of Judgment: 5 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/56.html


case_outcome: followed

case_text: Before considering the respondent's submissions I should make the following observations about s 1335 and the proper approach to be taken under it. First, there is no onus on the applicant to adduce evidence of its ability to pay its debts (i.e. a future costs order). Nor is the issue of whether security should be ordered to be determined on the basis of whether or not that onus has been satisfied. Rather, as Goldberg J indicated in Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 at [9] , what is required is that there be credible testimony before the Court that there is reason to believe that the applicant will be unable to pay the respondent's costs if the respondent is successful. Secondly, it now seems reasonably well accepted that the paid up capital of an applicant company is not as of course relevant in proceedings of this variety because the capital structure itself will ordinarily be irrelevant to the ability to pay. As Heerey J observed of a context in which the paid up capital of a company was only $12 in Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991 at p 3): "Today companies with very small paid up capital may be solvent and prosperous while others with balance sheets showing impressive sums in this regard may have no more than wistful memories of past glories to show to creditors." Thirdly, for the purpose of determining whether the threshold requirement has been met, the convenient approach to adopt is that of von Doussa J in Beach Petroleum NL v Johnson (1992) 10 ACLC 525: "In my opinion the power of the Court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant upon service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then to be taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security."


case_title: Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991)


case_title: Beach Petroleum NL v Johnson (1992) 10 ACLC 525


case_text: I see no error in the reasoning of the primary judge in relation to his Honour's analysis of the obligations on the Tribunal to deal with the Ombudsman report. Those conclusions were in accordance with Mason J's statement in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 where his Honour said: The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. 12 His Honour concluded that the Tribunal was not required to take into account the Ombudsman report in making its decision and I see no error in that conclusion, nor in the conclusion that the report could not have given rise to a legitimate expectation that the recommendations in the report would be considered by the Tribunal. 13 The applicant has not demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by the Full Court, nor has he established any error in his Honour's reasons. Accordingly, I consider that the appeal has no prospect of success. It follows that the application for an extension of time to file the application for leave to appeal should be refused. The applicant should pay the first respondent's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 22 December 2008 The Applicant appeared in person Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 December 2008 Date of Judgment: 15 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1967.html


case_text: question is whether entering into the Manufacturing Agreement in 2002 in the light of the previous dealings amounted to a representation or representations as pleaded and not whether a contractual promise was made. Reference has already been made to the judgment of Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd , dealing with the capacity of contractual promises to found representations for the purposes of s 52, which in turn refers to the judgment of Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503 506 (see also Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 233 241). A practical example of the interplay between contractual promises and misleading or deceptive conduct is seen in the decision of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151. Nonetheless, some caution needs to be exercised in too readily equating the two ( Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) v Lake Cumbeline Pty Ltd [1999] HCA 15 ; (1999) 161 ALR 599 per Gleeson CJ, Gaudron, Kirby and Hayne JJ at [12] and Callinan J at [60]; Wright v TNT Management Pty Ltd (1988) 15 NSWLR 679; and McWilliam's Wines Pty Ltd v LS Booth Wine Transport Pty Ltd (1992) 25 NSWLR 723).


case_text: am satisfied that Naturalcare, through Schadel, did rely upon the Quality Assurance representation and the Supply representation. Counsel for Pan relied upon some factors to negative reliance, for example, the intention to source product from Amrion; the pattern of purchase from other suppliers; the freedom reserved by Schadel to acquire goods from other suppliers if price were favourable; and the variety of manufacturers Naturalcare had listed with the TGA to manufacture its products. It is submitted for Pan that the express evidence of reliance given by Schadel should be given little or no weight, citing Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at 246 n64. 96 Chappel v Hart does not compel that conclusion. Indeed, the absence of such evidence could be fatal to a claim of reliance and causation. In the present case, Schadel's evidence accords with commercial reality. Naturalcare continued to acquire most of its goods from Pan and was lulled into what was a false sense of security by the assurances over the years and entry into the Manufacturing Agreements. It is obvious that if Schadel had thought that there was any real danger of Pan losing its licence because of non-compliance with the Code, he would have taken steps to reorganise the business to minimise dependence upon Pan for supplies. In essence, Schadel was induced not to reorganise the Naturalcare business to reduce dependence upon Pan as a supplier. The misleading conduct does not have to be the sole cause of the action or inaction said to cause the damage ( I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 per Gleeson CJ at [33], per Gaudron, Gummow and Hayne JJ at [57], per McHugh J at [90] [93] per Callinan J at [216]). DAMAGES The assessment of damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) presents some problems. Damages have been assessed by Naturalcare by estimating the loss of gross profits on product supplied to it by Pan as at April 2003 and then deducting from that amount any savings in costs and incidentals for a period until alternative suppliers were found. There are issues as to the particular methodology employed to arrive at that result which may be put aside for the moment. It is submitted for Pan that the basic approach is flawed. If Schadel's evidence is accepted then, on the hypothesis as to liability being explored, he would have commenced decreasing his reliance on Pan from March 2002, both by obtaining products from a range of other suppliers and by developing more generic products rather than complex slurry mix soft gels dependent upon Pan's particular expertise. Pan complains that there has been no attempt to estimate the difference between the position that would have been arrived at as a result of that conduct and the situation which existed at the time of the recall. In other words, Naturalcare has quantified damage on the basis of the continued supply of Pan products rather than upon the hypothesis that there would have been a substitution for Pan's products. Naturalcare's claim for damages was formulated in a global fashion for all causes of action seeking to demonstrate what was lost by the inability to acquire and resell Pan products. It is submitted for Pan that this leaves the Court in a position where there is no proper basis for the assessment of damages in circumstances where a proper basis could, and should, have been put forward ( Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [38] per Hayne J; Optus Vision Pty Limited v Australian Rugby Football League Limited [2003] NSWSC 288 at [132] [137] (unaffected by the appeal at [2004] NSWCA 61). Naturalcare responds that the approach that it has taken is likely to underestimate the quantum of potential damages as it does not take into account the fact that if it had reorganised its business it would have been in a stronger position in the market following the Pan recall than it ultimately was as its competitors would have been adversely affected by the recall and it would not have been. It, therefore, would have been likely to have increased its market share. It is also submitted that the method chosen uses actual figures and so reduces the necessity for hypothetical estimates which would inevitably be speculative. In my opinion, the approach taken by Naturalcare is acceptable as a starting point ( Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at [44] [52]). As it was induced to do nothing, it did not get out of the way and was a sitting duck when hit by the runaway train. Quantification of the effects of the train wreck is a good starting point for the assessment of loss. Of necessity, the assessment of damages in a case such as this is imprecise. There is a body of material in evidence as to the financial performance of the Naturalcare business prior to and after the suspension of licence and product recall which forms the raw material for the necessary assessment. The fact that the witnesses have approached the matter in one way or another is not decisive. If reorganisation of the business could have been completed so as to eliminate dependence upon Pan prior to the suspension of Pan's licence, then the proposed measure of damages would be a good proxy for the loss caused by the misleading and deceptive conduct. If reorganisation would not have been completed, there would need to be a discount to reflect the extent to which reorganisation would not have taken place. The evidence of what occurred in relation to reorganisation after the recall is of some value in assessing what may have occurred in the 12 months prior to it. However, the latter period was complicated by widespread effect of the failure of Pan, which meant that many other customers apart from Naturalcare were scrambling to obtain supply. I am not satisfied that the divorce from Pan would have been complete by the time of the suspension of the licence, even if commenced in March 2002. I agree with the submission by counsel for Naturalcare that the most striking aspect of the actual results post recall is the significant loss of total revenue by the business after the cessation of supply by Pan. The total revenue for the period 1 May 2001 to 30 April 2002 was $9 738 748 with an average monthly revenue of $811 562. In the period from 1 May 2002 to 30 April 2003, the total revenue was $11 240 026 with an average monthly revenue of $936 669. In the period from 1 May 2003 to 30 April 2004, the total revenue was $7 841 573 with an average monthly revenue of $653 464. In the period from 1 May 2004 to 30 April 2005, the total revenue was $10 667 344 with an average monthly revenue of $888 945. Thus, in what is roughly the year after the cessation of supply, the decrease in total revenue was $3 398 453 and in the ensuing 12 months the decrease was $572 682 in total which together can be rounded up to about $4 000 000. This pattern is broadly consistent with the evidence given as to the replacement of individual Pan products over the period. No other substantive reason has been advanced for the drop in revenue apart from the disturbance of supply of Pan products. I am satisfied that the interruption of supply was progressively alleviated over approximately two years. The total lost revenue in the two years would, as submitted by counsel for Naturalcare, understate the true loss as revenue had been on a rising plane up to the time of termination of supply by Pan. No doubt some of the effect of the unavailability of Pan products upon Naturalcare was due to Markethaven being unable to supply Pan products. It is reasonable to take account of that consequence because of the history of the relationship between Pan, Markethaven and Naturalcare. Pan endeavoured to establish that Naturalcare had not taken reasonable or timely steps to obtain substituted supplies more quickly. There was an attempt to use cross-examination and some evidence to show that Naturalcare had not acted reasonably as there were sources of supply not examined at all or not examined promptly. In my opinion, that endeavour was unsuccessful. Naturalcare had every commercial reason to take all steps open to it to minimise the loss. There is no reason to doubt the motivation to do so. In assessing the situation it is necessary to bear in mind what was said by Lord Macmillan in the well known passage from Banco de Portugal v Waterlow & Sons Ltd [1932] UKHL 1 ; [1932] AC 452 (at 506): 'It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.' It is also necessary to bear in mind that Schadel's reliance on Selim had limited his knowledge of the market. Even if the result was not perfect, I am satisfied that Naturalcare took reasonable steps to restore supply. Loss of gross revenue is not the measure of loss to the business. It is quite obvious, however, that a sudden loss of revenue by a continuing business will inevitably lead to a net loss. Fixed costs and many of the variable costs will remain. There was a good deal of attention in the evidence and in the submissions to assessing the net revenue lost. In my opinion, the endeavour by Naturalcare to found upon a gross profit margin applicable only to the goods supplied by Pan is not appropriate to an exercise to determine damages for breach of s 52. I am satisfied that, in this respect, it is appropriate to adopt a margin of 45 per cent in accordance with the opinion of Mr McGuiness. However, having studied his report, and taking into account his evidence under cross-examination, his assessment of MSD costs and other operating expenses and the saving of wages costs are all too high. In my opinion, they should be approximately 15 per cent in total, rather than 20 per cent as he proposed. Therefore, in broad terms, the loss of net revenue is calculated as follows: loss of revenue $4 000 000 x gross profit margin 45 per cent = $1 800 000, less costs etc x 15 per cent = $270 000, leaving net revenue of $1 530 000. Allowance then needs to be made for the overlap between that amount and the loss of profit on goods returned and goods ordered but not supplied. Then there should be some discount for the uncertainty as to whether the business would have been completely reorganised by the time of the licence suspension and for other uncertainties. The principal difference between the parties in relation to the goods returned and goods not supplied claim relates to the gross profit margin. Naturalcare claims a gross margin of 58.5 per cent for goods sourced from Pan moderated to 55.2 per cent if freight is taken into account. In my opinion, the criticisms of the foundation for that claim made by McGuiness are valid. I prefer to adopt for those purposes the yardsticks I have adopted for the umbrella claim, ie gross margin of 45 per cent and MSD etc of 15 per cent. The amount which is to be allowed for loss of profits on those claims is to be deducted from the overall amount I found for net loss. I would then discount the net amount by 20 per cent to take account of the uncertainties to which I have referred. I do not see the necessity for any discount back to a present value at the date of breach. The time has now elapsed. The amounts in question reflect the dollar values at the time during the period of loss. On that basis, interest would not run from the date of breach but should be calculated to reflect the progressive occurrence of loss. The amount of judgment should also reflect amounts allowed for direct expenses incurred due to the disruption such as the packaging, costs of registration and so on. Unless there are special reasons to the contrary, costs should follow the event. The proceeding will stand over to enable counsel for Naturalcare to bring in draft orders to reflect these reasons, including calculation of the amounts for damages and interest. The parties should also draw my attention to any issue that has been overlooked. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 31 October 2006 Counsel for the Applicant: Mr J Stoljar and Ms KW Dawson Solicitor for the Applicant: Australegal Counsel for the Respondents: Mr A J Sullivan QC and Ms KC Morgan Solicitor for the Respondents: Blake Dawson Waldron Date of Hearing: 24 28 October 2005, 5 7 and 9 June 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1403.html


case_title: Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) v Lake Cumbeline Pty Ltd [1999] HCA 15 ; (1999) 161 ALR 599


case_text: first problem for Naturalcare is that promissory estoppel must be based upon conduct that is clear and unequivocal-- Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 at 435 437; Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411. Conduct not precise enough to form a contract would rarely be the basis for a promissory estoppel. It is sufficient to refer to the discrepancies in the contract case to illustrate the lack of a basis for promissory estoppel


case_title: Futuretronics International PtyLtd v Gadzhis [1992] 2 VR 217


case_text: relies upon two representations. The first is that Pan would so conduct its manufacturing processes as to comply with the Code called the Quality Assurance representation. This representation is alleged to have been made by the 2002 Manufacturing Agreement in the light of previous dealings between the parties. Contractual promises can be the foundation of misleading and deceptive conduct for the purposes of s 52 in some circumstances ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [13] ). Whether these are such circumstances is best judged in a wider context. It is also alleged 'further or in the alternative' that Pan represented to Naturalcare that Pan would continue to supply all, or most of, Naturalcare's requirements as to therapeutic goods or, alternatively, Naturalcare's requirements as to soft gel goods and all or most of Naturalcare's requirements as to other therapeutic goods called the Supply representation. That alleged representation is based upon particular statements in various discussions between Schadel and Selim including that Pan was the largest manufacturer of health care products in Australia and was compliant with the requirements of the TGA and, accordingly, that the risk associated with Naturalcare's reliance and dependence on Pan continuing to supply Naturalcare with those goods customarily purchased by it from Pan at the quantities customarily acquired was negligible or immaterial; and that Pan was ready, willing and able to continue to supply Naturalcare with all goods it customarily acquired from Pan at those quantities it customarily obtained from Pan. It is submitted on behalf of Naturalcare that each of the Quality Assurance representation and the Supply representation was with respect to a future matter: in the one case, future conduct of the manufacturing process; and the other, the future ability to supply therapeutic goods, each broadly concerned with the continuing supply of therapeutic goods. It is contended that Pan has not established reasonable grounds for making either representation, with the result that the making of each of them was misleading and deceptive, or likely to mislead and deceive. It is further contended that Naturalcare relied upon the misleading conduct by continuing to conduct business on the basis that the bulk of the products it was to sell would be acquired from Pan and did not reorganise its business. This left it vulnerable to the sudden cessation of supply which occurred upon suspension of Pan's licence, leading to losses due to the disruption to its business. The question is whether entering into the Manufacturing Agreement in 2002 in the light of the previous dealings amounted to a representation or representations as pleaded and not whether a contractual promise was made. Reference has already been made to the judgment of Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd , dealing with the capacity of contractual promises to found representations for the purposes of s 52, which in turn refers to the judgment of Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503 506 (see also Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 233 241). A practical example of the interplay between contractual promises and misleading or deceptive conduct is seen in the decision of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151. Nonetheless, some caution needs to be exercised in too readily equating the two ( Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) v Lake Cumbeline Pty Ltd [1999] HCA 15 ; (1999) 161 ALR 599 per Gleeson CJ, Gaudron, Kirby and Hayne JJ at [12] and Callinan J at [60]; Wright v TNT Management Pty Ltd (1988) 15 NSWLR 679; and McWilliam's Wines Pty Ltd v LS Booth Wine Transport Pty Ltd (1992) 25 NSWLR 723).


case_title: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151


case_title: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109


case_title: Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406


case_title: McWilliam's Wines Pty Ltd v LS Booth Wine Transport Pty Ltd (1992) 25 NSWLR 723


case_title: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388


case_outcome: referred to

case_text: argument for Naturalcare in tort commenced with the contention that, at least between 1995 and 2002, Pan made a number of representations to Naturalcare to the effect that Pan was ready, willing and able to continue to supply Naturalcare with therapeutic goods; that any risk to Naturalcare arising out of Naturalcare's reliance or dependence upon Pan for the supply of product was negligible or immaterial and that Pan was, and would continue to be, compliant with the requirements of the TGA. For the purposes of argument, that can be taken as a fair summary of the statements by Selim from time to time and from the dealings between the parties over many years. The following propositions were advanced: (1) The representations were made in circumstances in which Pan knew, or ought reasonably to have known, that the representations would be relied upon (referring to L Shaddock & Associates Proprietary Limited v Council of the City of Parramatta [1981] HCA 59 ; (1981) 150 CLR 225; Mid Density Developments Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290; Eade v Vogiazopoulos [1999] 3 VR 889 at [115] per Smith J; Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 per McHugh J at [124]). (2) Naturalcare was vulnerable to Pan in the sense that it was unable to protect its own interests. Pan was in control of its own manufacturing processes and, to the extent that Naturalcare might have taken steps to protect its own interests, it was induced not to do so by Pan's express representations and conduct (referring to Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 ; (2003) 216 CLR 515 at [23] ; Perre v Apand Pty Limited at [10] [13] per Gleeson CJ; at [42] per Gaudron J; at [118] [119] per McHugh J; at [216] per Gummow J; at [298] per Kirby J; at [416] per Callinan J; Fortuna Seafoods Pty Ltd (as trustee for the Rowley Family Trust) v Ship 'Eternal Wind' [2005] QCA 405). (3) Pan had actual foresight of the likelihood that Naturalcare could suffer harm in the event that it manufactured and supplied product otherwise than conformably with requirements of the TGA and the Code. Pan was supplying goods for sale to, and ingestion by, humans. Pan knew that Naturalcare was taking the lion's share of its products from Pan and would be damaged if that supply ceased ( Perre v Apand Pty Limited at [13] per Gleeson CJ; at [50]; and [133] per McHugh J). (4) The statutory scheme meant that Pan assumed, for its own advantage, particular responsibilities which would give comfort to sponsors in the circumstances of Naturalcare ( Moorabool Shire Council v Taitapanui [2006] VSCA 30 at [3] , [82], [159]). (5) The case falls within at least one of the standard categories in which the common law has previously recognised that a duty of care may arise, namely, the negligent supply of goods ( Perre v Apand Pty Limited at [96] per McHugh J). (6) The policy consideration relating to indeterminacy of liability does not arise in the present case. Naturalcare was a first line victim. (7) Imposing a duty of care of the kind alleged would not impose an unreasonable burden on Pan ( Perre v Apand Pty Limited at [133] per McHugh J). Taking these factors into account, it was submitted that Pan had a duty of care at least to take reasonable care to ensure that the goods it manufactured for supply conformed with the requirements of the TGA and the Code.


case_text: argument for Naturalcare in tort commenced with the contention that, at least between 1995 and 2002, Pan made a number of representations to Naturalcare to the effect that Pan was ready, willing and able to continue to supply Naturalcare with therapeutic goods; that any risk to Naturalcare arising out of Naturalcare's reliance or dependence upon Pan for the supply of product was negligible or immaterial and that Pan was, and would continue to be, compliant with the requirements of the TGA. For the purposes of argument, that can be taken as a fair summary of the statements by Selim from time to time and from the dealings between the parties over many years. The following propositions were advanced: (1) The representations were made in circumstances in which Pan knew, or ought reasonably to have known, that the representations would be relied upon (referring to L Shaddock & Associates Proprietary Limited v Council of the City of Parramatta [1981] HCA 59 ; (1981) 150 CLR 225; Mid Density Developments Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290; Eade v Vogiazopoulos [1999] 3 VR 889 at [115] per Smith J; Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 per McHugh J at [124]). (2) Naturalcare was vulnerable to Pan in the sense that it was unable to protect its own interests. Pan was in control of its own manufacturing processes and, to the extent that Naturalcare might have taken steps to protect its own interests, it was induced not to do so by Pan's express representations and conduct (referring to Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 ; (2003) 216 CLR 515 at [23] ; Perre v Apand Pty Limited at [10] [13] per Gleeson CJ; at [42] per Gaudron J; at [118] [119] per McHugh J; at [216] per Gummow J; at [298] per Kirby J; at [416] per Callinan J; Fortuna Seafoods Pty Ltd (as trustee for the Rowley Family Trust) v Ship 'Eternal Wind' [2005] QCA 405). (3) Pan had actual foresight of the likelihood that Naturalcare could suffer harm in the event that it manufactured and supplied product otherwise than conformably with requirements of the TGA and the Code. Pan was supplying goods for sale to, and ingestion by, humans. Pan knew that Naturalcare was taking the lion's share of its products from Pan and would be damaged if that supply ceased ( Perre v Apand Pty Limited at [13] per Gleeson CJ; at [50]; and [133] per McHugh J). (4) The statutory scheme meant that Pan assumed, for its own advantage, particular responsibilities which would give comfort to sponsors in the circumstances of Naturalcare ( Moorabool Shire Council v Taitapanui [2006] VSCA 30 at [3] , [82], [159]). (5) The case falls within at least one of the standard categories in which the common law has previously recognised that a duty of care may arise, namely, the negligent supply of goods ( Perre v Apand Pty Limited at [96] per McHugh J). (6) The policy consideration relating to indeterminacy of liability does not arise in the present case. Naturalcare was a first line victim. (7) Imposing a duty of care of the kind alleged would not impose an unreasonable burden on Pan ( Perre v Apand Pty Limited at [133] per McHugh J). Taking these factors into account, it was submitted that Pan had a duty of care at least to take reasonable care to ensure that the goods it manufactured for supply conformed with the requirements of the TGA and the Code. Counsel for Pan has put forward a number of detailed reasons for its contention that the claim is misconceived. The most important is that Naturalcare was not 'vulnerable' in the sense required if that quality is to be a touchstone of liability as was submitted on behalf of Naturalcare. It would be necessary for Naturalcare to establish that it could not protect itself from the consequences of Pan's want of reasonable care, either entirely or at least in a way which would cast the consequences of the loss on the other party ( Woolcock Street Investments Pty Ltd v CDG Pty Ltd at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ; and Perre v Apand Pty Ltd per McHugh J at [120]). The risk of a supplier of goods not being able to maintain supply is an every day incident of commercial life. Many statutes regulate manufacturers and suppliers of goods. There is always a risk that if the statute is not complied with, the supply of goods may be prohibited or suspended. Various strategies to minimise risks of that kind and their impact are available to the intending purchaser. Particular contractual provisions can be framed, insurance can be sought, alternative suppliers located and so on. All available strategies were open to Naturalcare. The answer given on behalf of Naturalcare is that it was convinced by Selim's assurances not to take such prudent steps. That is no answer. It highlights the fact that the real complaint is about the alleged representations, not about failure to take reasonable care to ensure that the requirements of the Code were met.


case_text: relies upon promissory estoppel as a 'sword', that is, as a source of substantive rights enforceable as a cause of action in its own right. Counsel referred to Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 at 416 per Brennan J; Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 430 per Brennan J; News Corporation Ltd v Lenfest Communications Inc (1996) 21 ACSR 553 at 569; and Gray (As Administrator of the Estate of Gray) v National Crime Authority [2003] NSWSC 111 at [153] [159] (cf Australian Crime Commission v Gray (As Administrator of the Estate of Gray) [2003] NSWCA 318 per Mason P at [40], agreed to by Tobias JA at [313]). Counsel for Pan submits that this claim is misconceived and that equitable estoppel can not be used as a sword otherwise than in equity. Counsel submits that Waltons Stores (Interstate) Ltd v Maher does not establish that equitable estoppel is a cause of action in itself capable of sounding in damages (legal or equitable) although it may assist in establishing a recognised cause of action such as breach of contract (as in that case). There is much to be said for that submission. However, the question is controversial (KR Handley, Estoppel by Conduct and Election, Sweet & Maxwell, London, 2006, Ch 13). As I have a clear view that the integers of promissory estoppel are not established, I need not deal further with this fundamental question. It should be noted that the claim for estoppel by convention is not pursued. The estoppel case pleads the assumption that Pan was, and would continue to be, the exclusive supplier of soft gel goods and the supplier of the whole or the majority of the other therapeutic goods sold by Naturalcare for at least the term of the Manufacturing Agreement, including any renewed term. The case pleads an expectation by Naturalcare that Pan would continue to be its exclusive supplier of soft gel goods and the supplier of the whole or the majority of the other therapeutic goods sold by Naturalcare and that Pan would not be free to, or would not, withdraw from that expected relationship for at least the term of the Manufacturing Agreement, including any renewed term. That assumption and that expectation are said to have arisen from the same course of conduct as was alleged to have given rise to the Supply Contract, together with some allegations of a general kind as to the relationship between the parties, also relied upon to establish a duty of care. Counsel for Naturalcare referred, in particular, to parts of a conversation between Schadel, Davis and Selim, which took place in 1995. The next problem is in identifying an appropriate subject matter for the assumption or expectation. Counsel for Naturalcare referred to the passage from the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher where his Honour said, amongst other things (at 428): '... the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;' Mason CJ and Wilson J referred to 'basic assumptions underlying the transaction between the parties' (at 406). They went on to point out that the failure to fulfil a promise does not, of itself, amount to unconscionable conduct and mere reliance upon an executory promise to do something does not bring promissory estoppel into play (also at 406). It is submitted by counsel for Naturalcare that the legal relationship in question was as supplier of Naturalcare's soft gel business and of the majority of Naturalcare's tablet business. In my opinion, that does not amount to a relevant assumption or expectation. It only illustrates a continuing commercial relationship. The next problem is that Naturalcare has to establish that the estoppel in the terms alleged was operative in 2003. I have no difficulty in rejecting that contention. Such an assumption would be inconsistent with the course of dealings between the parties up to that time. Naturalcare had acquired soft gel products from non Pan sources and the majority of tablets from non Pan sources. Counsel for Naturalcare was only able to argue that Naturalcare gave Pan almost all of its soft gel business between January 2000 and April 2003, being 89 per cent by value and 48.2 per cent of its tablet products by value and Naturalcare acquired 58.25 per cent of its tablet products (by value) from Pan in the period January 2000 to April 2003, rather than 48.2 per cent but only if Healthy Joints figures are excluded. Next, it is not at all clear how it is alleged that the assumption and expectation were unconscientiously departed from. The failure to supply products was not the kind of deliberate unconscientious departure from a state of affairs which might found a promissory estoppel. It was the result of action by the TGA pursuant to statute.


case_title: Wright v TNT Management Pty Ltd (1988) 15 NSWLR 679


case_text: 4 rule 14(2) confers a discretion upon the Court which, although not constrained by the terms of the rule, is nevertheless to be exercised judicially. That discretion will be exercised in favour of the grant of leave where there is a "sufficient reason to do so". In Molnar Engineering Pty Ltd v Burns [1984] FCA 232 ; (1984) 3 FCR 68 , the majority of the Full Court of the Federal Court dismissed an appeal against the refusal by the trial judge to grant leave pursuant to O 4 r 14(2). Smithers J, with whom Sweeney J comprised the majority, considered that the discretion to be exercised was to be exercised judicially "according to the requirements of justice" (at 74). The dissenting judge Keely J agreed with this observation. Smithers J considered that where there was "sufficient reason" it was inevitable that the discretion be exercised in favour of a company. Smithers J then recognised that the problem was to determine what was sufficient reason. His Honour said at 74: "The common reason for a company seeking to proceed without qualified assistance is, no doubt, that the company does not have the funds to engage such assistance. One would suppose that a company might successfully support an application to sue or defend without qualified assistance, not only where the company is bereft of funds, but also where having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage qualified assistance for the litigation in question would create financial difficulties with which the company could not cope, or with which it ought not be required to cope. The class of company involved, the nature of its undertaking, its financial structure, its ability to retain and pay its staff and no doubt other factors might be relevant in particular cases. Similarly the identity of the shareholders and the spread of the shareholding would be relevant. So also would the capacity of a person by whom the litigation might be commenced and carried on. In this case Mr Molnar is, from the point of view of substance, a one man company. In addition, he is the inventor of the hoist in question and understands the technical factors relating to its safety. It could no doubt be urged that, in the case of a one man company which seeks leave to carry on the proceedings without a solicitor and which proposes that it be carried on by the one man of the company the situation approximates, in substance, that of a litigant in person. If Mr Molnar were carrying on business as personal proprietor thereof he would have the privilege of conducting litigation himself without qualified legal assistance. The accessibility of the courts to any citizen unconditionally, in this respect, is regarded as fundamental to the system of justice under the Crown. That ready accessibility to the courts should be available to a juristic person is no doubt similarly fundamental. However, it has been regarded as appropriate that when a trader decides to use the corporate form in which to carry on his business for the advantages flowing therefrom his accessibility to the courts as plaintiff and his appearance as a defendant should be made conditional as set forth in O 5, r 6 of the rules of the United Kingdom and the practice which it reflects. ..." In Simto Resources Limited v Normandy Capital Limited (1993) 10 ACSR 776 , French J (as he then was) followed Molnar Engineering Pty Ltd v Burns (supra) and said at 782 in relation to the judgment of Smithers J: "It was clear from the judgment that his Honour was prepared to consider under the rubric of "sufficient reason" such factors as actual financial incapacity, and the financial difficulties created by diversion to paying legal expenses of funds which might be necessary to meet wider commitments of a company. Factors relevant to the exercise of the discretion to give leave would include the class of company involved, the nature of its undertaking, its financial structure, its ability to retain and pay its staff, the identity of its shareholders and the spread of the shareholding. The fact that a company is the alter ego of a single person who has advantageous educational and technical qualifications might also be important (at 75). Sweeney J did not elaborate upon the principles regulating the discretion but dealt with the case on the basis that the Full Court should not interfere with the discretion of the trial judge. Keely J, who dissented in the result, nevertheless agreed with Smithers J that the discretion was to be "exercised judicially according to the requirements of justice and that it must be exercised in favour of a company where there is sufficient reason". He agreed that: leave should be granted where, having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage legal practitioners for the litigation in question would create financial difficulties with which the company could not--or with which it ought not to be required to--cope and that in this connection the ability of the company to retain and pay its staff may well be relevant (at 80).'"


case_outcome: considered

case_title: Simto Resources limited v Normandy Capital Limited (1993) 10 ACSR 776

case_text: Simto Resources Limited v Normandy Capital Limited (1993) 10 ACSR 776 , French J (as he then was) followed Molnar Engineering Pty Ltd v Burns (supra) and said at 782 in relation to the judgment of Smithers J: "It was clear from the judgment that his Honour was prepared to consider under the rubric of "sufficient reason" such factors as actual financial incapacity, and the financial difficulties created by diversion to paying legal expenses of funds which might be necessary to meet wider commitments of a company. Factors relevant to the exercise of the discretion to give leave would include the class of company involved, the nature of its undertaking, its financial structure, its ability to retain and pay its staff, the identity of its shareholders and the spread of the shareholding. The fact that a company is the alter ego of a single person who has advantageous educational and technical qualifications might also be important (at 75). Sweeney J did not elaborate upon the principles regulating the discretion but dealt with the case on the basis that the Full Court should not interfere with the discretion of the trial judge. Keely J, who dissented in the result, nevertheless agreed with Smithers J that the discretion was to be "exercised judicially according to the requirements of justice and that it must be exercised in favour of a company where there is sufficient reason". He agreed that: leave should be granted where, having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage legal practitioners for the litigation in question would create financial difficulties with which the company could not--or with which it ought not to be required to--cope and that in this connection the ability of the company to retain and pay its staff may well be relevant (at 80).'"


case_text: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 , French J (as he then was) restated the approach of the Court in the following terms at par [13]: "Nevertheless the policy of the rule is clear that ordinarily a corporation will be required to be represented by a solicitor. Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders. The factual complexities of the case and the capacity of the proposed representative to conduct it effectively are also relevant VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 14 ACLC 1308. " French J refused leave in the circumstances of that case on the basis of the potential factual complexity of the case, the failure of the relevant individual to provide any detailed financial information about the company, the persons who stood behind it or their ability to engage legal representation and the obvious difficulty which that person would have in dealing efficiently with the legal and factual issues involved. I am satisfied, on the material placed before me by Mr Barrow, that the Charitable Trust is impecunious and that it does not have the ability to pay for legal advice or representation in this proceeding. I consider that that is a necessary factor to be established before the leave can be granted but I do not consider that it is a sufficient factor of itself to warrant the exercise or discretion in the applicant's favour. The factors identified in the authorities to which I have referred, need to be taken into account. I place little weight on the "advantageous education qualifications" and "advantageous experience in the superior Federal Court of Australia" relied upon by Mr Barrow. They do not demonstrate an ability similar to that possessed by a solicitor or counsel experienced in the practice of corporations law to make submissions in relation to the legal and factual issues relevant to an application to set aside a statutory demand. In my view, those educational qualifications and court experience are not such that Mr Barrow's position can be equated to that of a qualified legal practitioner so that the Court will have the opportunity of benefiting from Mr Barrow's legal knowledge. He does not possess any legal qualifications and, indeed, is presently in the course of the first year of a primary law degree.


case_text: commercial and practical nature of the statutory process to set aside a statutory demand was explained by Young J in Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263 at 267 in the following terms: "... The court does not have to consider questions of solvency or abuse of process, it merely has to focus on the matters set out in s 459H, namely, whether there is a genuine dispute and/or whether the company has an offsetting claim: see s 459J. Thus it would seem to me that the present regime involves a much closer connection with the winding up proceedings that have been initiated by the service of the statutory demand than was the case under the previous procedure. Commercially speaking, the person who issued the statutory demand is the attacker and an applicant for an order under s 459G is responding to that attack. I think it is appropriate that this court should follow the Federal Court decisions in cases such as Amalgamated Mining Services Pty Ltd v Warman International Ltd and hold that one should focus on the question as to whether in a commercial sense the defendant to litigation is the aggressor. Even if one takes a different tack and says that one must find a legal aggressor, it seems to me that under the existing structure of the Corporations Law the person who issues the statutory demand is the legal aggressor." In the words of Sundberg J in Aquatown Pty Ltd v Holder Stroud Pty Ltd (1995) 18 ACSR 622 at 625: "[i]n a practical sense the applicant was forced by the respondent to take legal action". See also Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175 at 184-187.


case_title: Aquatown Pty Ltd v Holder Stroud Pty Ltd (1995) 18 ACSR 622


case_text: a further affidavit filed on 10 July 2009 Mr Barrow sets out the following factors which he contends are sufficient grounds to enable him to be given leave to represent the applicant in the proceeding: (a) He has "advantageous education qualifications" for legal reasoning and advocacy. He sets out degrees he has been awarded in accounting and finance, philosophy and english literature and creative writing. He also says he is currently enrolled in the first year of Juris Doctor of Law at RMIT and is a fully qualified certified public accountant. (b) He has "advantageous experience in the superior Federal Court of Australia". He refers to his participation in proceedings before Gray J (VID 335 of 2008 David Charles Barrow v Blackrock Investment Management Limited ) and Gordon J, Julie Anne Barrow Charitable Trust v BrisConnections Management Company Ltd [2009] FCA 412. (c) The Corporate Trustee is a sole director corporation; (d) Mr Barrow is the sole major donor of The Charitable Trust; (e) The Charitable Trust is impecunious and cannot afford to pay for legal advice or legal representation in court proceedings; (f) Pro bono representation is not appropriate; (g) Refusing leave would be a denial of access to justice; (h) Julie Anne Barrow was his sister who died of an asthma attack on 23 June 2008. Order 4 r 14 of the Federal Court Rules provides: "(1) Subject to subrule (2) and to Order 43 (which relates to disability), any person may proceed in the Court by a solicitor or in person. (2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor." I am conscious of the fact that I have reached a conclusion different to that of Gordon J in Julie Anne Barrow Charitable Trust v BrisConnections Management Company Ltd [2009] FCA 412 but I consider that there are a number of features of the application before me which distinguish that application from the application made before Gordon J. In the proceeding before Gordon J Mr Barrow applied for leave to appear on behalf of the named applicant but Gordon J refused his application. Her Honour's reasons were that: (a) the issues of fact and law raised in the amended statement of claim were of a kind that were not suited to presentation and examination by a lay representative; (b) Mr Barrow was to be the principal witness in the proceeding; (c) no reason had been proffered by Mr Barrow or the Corporate Trustee why it was that a Charitable Trust could not secure legal representation to prosecute an urgent application for interlocutory relief; (d) even if leave was granted to Mr Barrow to appear on behalf of the Corporate Trustee the applicant faced significant obstacles which needed to be overcome before any substantive application could be heard. The principal distinguishing feature is that in the proceeding before Gordon J the applicant was seeking affirmative relief and was not in the position of being a defendant to a claim or potential claim brought against it. Further, the issues of fact and law raised before me are quite different from the issues of fact and law raised before Gordon J. Although Mr Barrow is the principal witness in this proceeding, as he was in the proceeding before Gordon J, I consider that the issues raised in the applicant's claim to set aside the statutory demands are substantially based on documentation rather than the viva voce evidence of Mr Barrow. There is also evidence before me, which apparently was not before Gordon J, that the applicant and The Charitable Trust are impecunious and cannot afford to pay for legal advice or legal representation. It is also important to note that Gordon J concluded that even if leave was granted to Mr Barrow to appear on behalf of the Corporate Trustee the applicant faced significant obstacles which needed to be overcome before any substantive application could be heard. As I understand the present proceeding the applicant does not face the same significant obstacles. It was accordingly for these reasons that I made the order on 8 September 2009. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 14 September 2009 Counsel for the Applicant: Mr David Barrow appeared by leave for the applicant Counsel for the Respondent: C Brown Solicitor for the Respondent: Results Legal Solutions Date of Hearing: 8 September 2009 Date of Judgment: 14 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1026.html


case_text: I am presently concerned with two Notices of Motion filed in the principal proceedings between Lynne Maree Rogers v Asset Loan Co Pty Ltd & Ors , being proceedings QUD525/2005. 2 Before dealing specifically with those Notices of Motion, it is helpful to set out the history of the matter. 3 The proceedings were last before the Court on 5 December 2005, when I heard an interlocutory application for an injunction restraining one of the respondents in these proceedings from taking possession of property. I made no orders on that date, and adjourned the application pending the outcome of proceedings in the New South Wales Supreme Court. 11 Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 was concerned with applications for relief by Mr Rogers, who sought various orders, including interlocutory relief restraining the respondents from exercising a power of sale, and in respect of a number of loan agreements, deeds of settlement, mortgages, and other instruments relating to various properties. 12 Greenwood J found, as the respondents in that proceeding had submitted, that the majority of Mr Rogers' claims for final relief involved claims that related to the legal or beneficial interest of the applicant in property which vested in the trustee in bankruptcy, and accordingly in respect of which the applicant had no standing to institute legal proceedings pursuant to s 116(2)(g) Bankruptcy Act 1966 (Cth) (the Bankruptcy Act ): (g) any right of the bankrupt to recover damages or compensation; (i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; ... 13 In those proceedings, Greenwood J held, at [48]: ... The alleged contraventions of the Trade Practices Act 1974 (Cth) which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee. 14 His Honour also concluded that a claim by Mr Rogers for interlocutory relief in the form of "an order that the respondents do not harass, intimidate or coerce the applicant, his family or neighbours" was not a claim called in aid of a claim for final relief within the scope of s 116(2)(g) of the Bankruptcy Act . 15 After the judgment of Greenwood J, Mr Rogers filed an Amended Statement of Claim on 19 June 2006, seeking, in conformity with observations of Greenwood J, to formulate a Statement of Claim so as to plead claims coming within the exemption of s 116(2)(g) of the Bankruptcy Act . 16 On 7 December 2006, Collier J held that the proceedings by Mr Rogers in QUD130/2006 commenced by application filed 7 April 2006 by Mr Rogers, and in which the Amended Statement of Claim was filed on 19 June 2006, be dismissed with costs. 17 Her Honour held that in respect of each of the applicant's claims, the applicant either did not have standing, or the claims were not actionable in the Federal Court, or the pleadings were deficient. Her Honour held that the applicant should not be given a further opportunity to replead, and dismissed the applicant's application. 18 The earlier proceedings by Mr Rogers, namely QUD224/2004, was the subject of orders by me on 6 October 2005. In that action, the Court ordered: 1. The action QUD 224/2004 is deemed abandoned by operation of s60(3) of the The Bankruptcy Act 1966 (Cth). 2. The proceeding is struck out. 3. No order as to costs. 19 The Statement of Claim relevant to the present motions seeks to canvass much of the material the subject of the orders of the Court in the previous proceedings. 36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708.


case_text: I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708.


case_text: it was apparently not raised as a ground of review in her application in the Federal Magistrates Court, Scarlett FM observed, at [29], that the appellant complained about the standard of interpretation in the Refugee Review Tribunal. His Honour rejected that complaint, referring to an authority of the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230. The appellant appeared in person this morning. She was assisted by a Mandarin interpreter. She addressed me orally on the grounds of appeal, which essentially amount to a re-argument of the grounds of review which were rejected by Scarlett FM. As I have already said, the first ground falls into two parts. The appellant expanded very slightly on the first part of this ground this morning. She said that she had been nervous and under what she called "spiritual pressure". In my view, this ground must be rejected for the reasons given by Scarlett FM in [22] of his reasons.


case_text: was nothing in the reasons for decision of the Tribunal or in the evidence which revealed the slightest suggestion that the Presiding Member approached the review with a closed mind, see Minister For Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507. The appellant argued the second ground upon the basis of a breach of section 424A of the Act. She was unable to identify precisely what information the Tribunal was required to disclose to her, but the effect of what she said was that the Tribunal ought to have provided her with information about the inconsistencies in her evidence, so as to give her an opportunity to address those inconsistencies.


case_text: second part of this claim was the claim of a reasonable apprehension of bias. Scarlett FM set out the test stated by the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. His Honour was of the view that there was nothing in the Tribunal's reasons or in the evidence which disclosed a reasonable apprehension of bias within the test stated by the High Court. The second ground of review was that the Tribunal failed to comply with its obligations under section 424AA of the Migration Act 1958 (Cth) ("the Act"). His Honour approached the matter upon the basis that the word "information" in section 424AA has the same meaning as it has in section 424A(1). The answer to this submission is to be found in the observations of the High Court in Re Refugee Review Tribunal; ex parte H at [30]. Gleeson CJ, Gaudron and Gummow JJ there said that: Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Their Honours also said at [30] that: [T]he need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.


case_text: FM was of the view that there was no information that would come under the purview of section 424A(1) of the Act and he observed, at [26], that the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] is authority for the proposition that inconsistencies in an applicant's evidence do not amount to information for the purposes of section 424A. The third ground of review was that the Tribunal made its finding without any substantial ground apart from its assumption. Scarlett FM, at [27], was of the view that this ground could not be maintained because it was an attempt to seek merits review which, of course, is not available in the Federal Magistrates Court. It is well established that the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in it cannot be characterised as constituting "information" within section 424A(1): see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. Accordingly, this ground of appeal must also be rejected. The third ground of appeal was said to be unfairness. The appellant claimed that she had been treated unfairly, because the Tribunal described her evidence as "vague". This is not an accurate description of the Tribunal's reasons. As I said earlier, it rejected the appellant as a witness of truth. It said, at [70], that its: ...overall impression is that the Applicant has taken a couple of true facts from her past and, possibly with external assistance, ... heavily interlaced them with false information.


case_text: this issue is approached upon the basis of a claimed contravention of section 424A(1) or section 424AA , the result is the same. There is authority for the proposition that "information" in section 424AA has the same meaning as "information" under section 424A: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J.


case_text: In relation to the first ground of appeal it is clear that the Tribunal had informed the appellant that it was unable to make a decision in his favour on the basis of the material before it. The Tribunal observed in its reasons for decision that the appellant neither sent further material, nor took the opportunity to attend a hearing and present his claims orally. The learned Federal Magistrate correctly pointed out that a visa must only be granted where the Minister is satisfied the prescribed criteria has been fulfilled ( SZGFG v Minister for Immigration and Citizenship [2007] FCA 483). Further, it is clear that it is for the applicant before the Tribunal to make his or her case to the Tribunal the Tribunal is under no obligation to make the case for the applicant ( Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576). The Tribunal made a decision based on such material as was before it, and the appellant cannot now claim that the Tribunal erred in making that decision.


case_text: In relation to the appellant's third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal's decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that "unreasonableness" does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant's third ground of appeal is not substantiated.


case_title: Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223


case_outcome: related

case_text: The appellant appeals to this Court from a decision of Jarret FM dated 26 May 2008 ( BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 January 2008. The Tribunal had affirmed a decision of a delegate of the first respondent dated 19 October 2008 wherein the delegate refused the grant of a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act). 2 The appellant is a citizen of the Republic of Indonesia. He arrived in Australia on 26 August 2007 on a Subclass 456 Temp Business Visa and applied for a protection (class XA) visa on 20 September 2007. The appellant claimed to have suffered persecution from the current Indonesian government on the basis that he expressed a preference for the former Indonesian leader, Mr Soeharto. 3 The appellant claims he was imprisoned in Indonesia for a one month period because he had been critical of the new Indonesian government and expressed a preference for Mr Soeharto. The appellant asserts that following his graduation from University, the police visited him frequently. On one occasion the police came to his house and asked him what he thought of the Indonesian government. When he answered that he hated the new government, he was beaten, arrested and imprisoned for one month. 21 The appellant's second ground of appeal is identical to the first ground of review before Jarrett FM. In that case his Honour said at [12]: The first ground of the current application perhaps highlights the difficulty for the applicant, namely that there was no evidence or other materials to justify the making of the decision. In my view there was no evidence or other materials before the Refugee Review Tribunal that would justify making a decision other than the decision that it made in the circumstances of this case. ( BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734)


case_text: I agree with the comments of Jarrett FM. The difficulty faced by the appellant in establishing jurisdictional error in relation to this ground of appeal is that the lack of evidence before the Tribunal was the very reason why the application was dismissed. This ground of appeal is not an allegation of jurisdictional error. Instead, the appellant is seeking to reopen the decision of the Tribunal. The Court cannot engage in review of the merits of the appellant's case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . 23 In my view the appellant's second ground of appeal is not substantiated.


case_title: QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918


case_text: The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is that of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. 18 In my view the grounds of appeal stated in the appellant's Notice of Appeal are without substance. No error in the decision of the Federal Magistrate has been demonstrated by the appellant. I form this view for the following reasons.


case_title: SZGFG v Minister for Immigration and Citizenship [2007] FCA 483


case_text: An important consideration which informs the exercise of the discretion on the ground of delay is that the public interest requires there be an end to litigation about the efficacy of acts and decisions of public bodies and officials; see Applicant M221 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 45 at [19] per Weinberg J; see also the Full Court in S58 at [4]. 34 In the present case it is clear that applying these authorities, a delay of nearly nine years would be excessive and very difficult to excuse. Even a delay of nearly two years from the time the appellant entered immigration detention would call for a clear explanation. 35 But what the authorities make plain is that the length of the delay is computed from when an applicant becomes aware of the decision and all the circumstances must be examined. There are no hard and fast rules as to what length of time will preclude relief. 36 Here, the learned Federal Magistrate found the delay was over eight years from the time the decision was made. Whilst his Honour did not say so expressly, he seems to have proceeded on the assumption that the appellant was aware of the decision from the time when it was made in 1996. 37 His Honour also seems to have assumed that the appellant was aware of the decision from at least the time when an unsuccessful application was made to the Minister under s 417 of the Act . His Honour did not state uncategorically that the appellant was then aware of the decision but he said that the request under s 417 showed that "someone must have known" of the decision of the RRT before 27 June 1997. 38 It may well be, as the learned Federal Magistrate found, that there was excessive delay. And it may well be, as his Honour held, that the appellant has no explanation for it. 39 However, the difficulty with the approach which the Federal Magistrate adopted was that he made findings of fact without hearing any evidence from the appellant. He acted solely upon submissions from the bar table and without testing any of the statements which were made to him by an unrepresented applicant. 40 I understand the pressures on the Federal Magistrates' Court to provide a speedy and efficient determination of matters which come before it. I am also mindful of what might be thought to be a practical and commonsense approach to the disposition of cases. Nevertheless, as a general rule, the judicial power of the Commonwealth cannot be exercised to deny relief for admitted jurisdictional error, consisting as it does in this case, of a denial of statutory procedural fairness, without evidence tested in the ordinary way. 41 That is especially so in the present case because the learned Federal Magistrate apparently did not believe the explanation proffered from the bar table. The appellant's overall explanation for his delay was that he did not know of the decision until 28 November 2005. The Federal Magistrate cannot have believed this because he proceeded on the basis that the appellant knew of the decision either from 1996 or at least when the unsuccessful request was made under s 417. 42 There is authority for the proposition that a person who seeks the exercise of the Minister's powers under s 417 implicitly asserts that there is a decision of which he or she is aware; see S58 at first instance per Madgwick J at [18]. But, in the absence of evidence from the appellant and in light of the learned magistrate's finding that "someone must have known", it cannot be said that this issue has been adequately addressed by the learned magistrate. It may be unlikely that the s 417 request was made without instructions from the appellant, but that was an issue of fact to be tested by proper evidence. 43 It may well be that, as the learned Federal Magistrate apparently assumed, the appellant's decision to avoid Departmental officers, constituted a deliberate decision to abandon his case. But it was necessary for that to be tested in the witness box, particularly as it was at odds with the appellant's stated explanation that he had only just become aware of the decision. 44 I note that the learned Federal Magistrate made reference to the appellant's abandonment of his wife and children in China. It is difficult to see why that constituted a relevant consideration. The Minister's counsel submitted that these were merely passing comments. I do not need to consider whether I should accept that submission because of the views I have reached as set out above.


case_text: At [22] Scarlett FM observed that delay has always been a bar to relief of the kind sought in the present matter, citing Applicant M70 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 132 (" Applicant M70") and Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 (" Marks") at 495-6 per McHugh J. The learned Magistrate also made reference to S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 "), emphasising that in S58 the Full Court had held it was open to the trial judge in that case to characterise the appellant's delay as poorly or unsatisfactorily explained.


case_text: In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [51] [60], Gaudron and Gummow JJ set out what their Honours considered to be the correct approach to the exercise of the discretion to refuse constitutional relief under s 75(v) of the Constitution . 27 It should be noted that at [55] their Honours pointed out that the discretion to refuse relief is not to be exercised lightly. This is borne out by the observations of Gaudron J in Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at [56] which were set out. Guidance is also obtained from the quoted remarks of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Concilation and Arbitration; Ex Parte Ozone Theatres (Aust) Limited [1949] HCA 33 ; (1949) 78 CLR 389 at 400 where, after referring to "unwarrantable delay", their Honours said:- "... the court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."