case_text: A reconstituted Tribunal heard the application and again the decision not to grant a Protection (Class XA) Visa was affirmed. Again the Tribunal made adverse findings as to the applicant's credit. The Federal Magistrates Court dismissed an application to review this subsequent decision of the Tribunal: SZJJC v Minister for Immigration & Citizenship [2007] FMCA 1986. 5 The proceeding presently before this Court is an appeal against the decision of the Federal Magistrates Court. The Grounds of Appeal seek to raise three contentions, namely: (i) that there has been a breach of s 424A(1) and (3) of the Migration Act 1958 (Cth); (ii) that there has been a breach of s 430 of the 1958 Act; and (iii) that the Tribunal made a " jurisdictional error when the Tribunal mentioned that, 'the Tribunal does not accept that the applicant's business suffered losses as a result of a harm from Hindu.' Then the Tribunal mentioned that the Tribunal has accepted that the applicant's business has suffered losses in India and has been forced to close." None of these Grounds has been made out and the appeal is, accordingly, dismissed. No error has been demonstrated in respect to the reasons for decision of the learned Federal Magistrate. 6 The Appellant appeared before the Court this afternoon unrepresented, although he did have the assistance of an interpreter.


case_outcome: followed

case_text: This class of " information " is that which falls within s 424A(3)(a): VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 , 131 FCR 80. Justice Kenny there referred to information about entry rights of non-nationals and considered that such information was " just about " a class of persons. Her Honour continued: [50] In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within para424A(3)(a) of the [Migration] Act ... Justice Downes agreed. His Honour considered that " Official and semi-official information contained in documents assessing conditions in countries from which persons seeking refugee status regularly come ... has been held to fall within para 424A(3)(a) ": at [71]. 23 In any event, it should be noted that the Tribunal disbelieved the evidence of the now Appellant as to his association with the " People's War Group ". The Tribunal's relevant finding was as follows: Having considered this evidence, the Tribunal does not accept that the applicant is, or has been, a member of the PWG. Nor does the Tribunal accept that the applicant has been a member of the All India Revolutionary Students Federation (AIRSF) or a member of the Communist Party of India. The Tribunal does not accept that the applicant has been targeted or in any way harmed by police or Hindus generally because of his involvement or association with the PWG or that he has been targeted by the PWG because he has attempted to resign from the PWG and/or because he has attempted to join other political parties. The Tribunal also does not accept that the applicant lost a child as a result of his membership or association with the PWG, that his house was bombed or that his wife was harmed as a result of his membership/association with the PWG. 24 The first Ground of Appeal is thus rejected.


case_outcome: cited

case_text: Full Court held that the applicability of PII was a question of substantive law, appellable on its merits and that in applying PII in civil proceedings, the Court should undertake a balancing exercise to determine whether the public interest which requires that documents privileged from production by PII should not be produced outweighs the public interest that a court of justice performing its functions should not be denied access to relevant evidence. Critically, the Full Court conformably with the reasoning in Haydon v Magistrates Court [2001] SASC 65 ; (2001) 87 SASR 448 , held that "the partial disclosure of an informer's identity, even to the person informed against, is not conclusive" and that immunity from further disclosure was not necessarily lost by the partial disclosure of informers' identities. The Full Court decided that the documents were protected from production as they did not have sufficient importance to the applicants' conduct of the litigation to outweigh the importance of not disclosing the identity of the informers. (In the hearing of the present motions, Mr Watson said, and I accept his evidence, that the applicants and their legal advisers were unaware up until delivery of the Full Court's reasons for judgment on 4 July 2008 of the basis of ASIC's claim for PII and, in particular, were unaware that that claim rested solely on the ground of informer privilege. (I analyse his evidence later in these reasons)). The applicants applied for special leave to appeal to the High Court. ASIC filed a summary of its argument for the purpose of the leave application. In that summary ASIC stated: "The basis for ASIC's claim of public interest immunity was that various documents produced on subpoena would (directly or indirectly) identify some informants who had given ASIC information in its investigations."


case_outcome: considered

case_text: present state of authorities reveals that there are two divergent views as to the circumstances in which a court will entertain a second interlocutory application in respect of the seeking of the same order as was sought in an earlier interlocutory application which was dismissed. There is: (a) what is said to be the strict view of Brooking and Hayne JJA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 (" Christie ") and Mason P in Manning ; (b) what is said to be the liberal view of Charles JA in Christie and of Heydon JA and Foster AJA in Manning . ASIC and Multiplex submitted that a second interlocutory application will be an abuse of process if it is not based upon fresh material which was not available at the time of the original interlocutory application or a material change in circumstances since that application. In Christie , Brooking JA and Hayne JA held that as the purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it was not being adduced, that the second application should have been stayed as an abuse of process. Charles JA dissented and said at 610-611: "I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the 'fresh evidence' rule. ... ... I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent." ASIC's written submissions asserted that Batt J's ruling in Guss v Magistrates' Court of Victoria [1998] 2 VR 113 established Christie as a rule of general application. The applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning . The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has been considered in Manning . The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie . It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition. In Manning , Heydon JA made the following observations at 155-156, [70]-[72]: "The assumptions made by Charles JA in D A Christie Pty Ltd v Baker as to the construction of the New South Wales legislation and the likelihood of evidence being received on interlocutory appeals appear to correspond with the approach of the New South Wales Courts. In these circumstances it cannot be said that the majority reasoning in D A Christie Pty Ltd v Baker should, as a matter of comity or otherwise, be followed. Rather, the position in New South Wales is such that the principles propounded by Charles JA should be applied in order to avoid an anomalous difference arising between the relative liberality with which evidence is admitted on interlocutory appeals and the extremely restrictive approach to permitting second interlocutory hearings based on additional (but not fresh) evidence urged by the Nominal Defendant. Whether Charles JA is, or the majority in D A Christie Pty Ltd v Baker are, correct on the true view of the Victorian legislation is not a matter that need be commented on. For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988 . The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis. Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs and others damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily are evils which each court in its individual discretion will rightly strain to avoid." Whilst acknowledging that there is conflict in the authorities concerning the applicable legal principles governing a second interlocutory application, ASIC submitted that the view of the majority of court in Christie and Mason P in Manning was to be preferred. This preference was said to be based on a close examination of the reasons for the divergence in views and the applicable Rules of Court in Victoria and New South Wales. ASIC submitted that the minority view of Charles JA in Christie was predicated on the basis that it would be anomalous to hold that a further interlocutory application was an abuse of process because it was based on fresh evidence that was reasonably available at the first application, when, under the applicable Rules of Court, such evidence could be adduced on appeal. In Victoria, it was said that there is no longer a requirement for "special grounds" to admit new evidence in appeals from final orders or in appeals from interlocutory orders: see Supreme Court Rules , r 64.22(3). ASIC submitted that having regard to the rules in the Federal Court applicable to the reception of evidence in appeals from interlocutory orders, the correct approach in the Federal Court is, or should be, the strict view of Brooking and Hayne JJA in Christie and Mason P in Manning . The result is, according to ASIC, that the applicants must show that the fresh material they rely upon was not reasonably available to them on the first application or else the second application must be dismissed as an abuse of process. To the extent that there is conflict or inconsistency between the decisions or rationes in Christie and Manning , it is not for me to resolve that conflict or inconsistency or decide which is the correct or preferable principle to adopt. I leave that exercise to more eminent judicial authority.


case_text: and Multiplex submitted that a second interlocutory application will be an abuse of process if it is not based upon fresh material which was not available at the time of the original interlocutory application or a material change in circumstances since that application. In Christie , Brooking JA and Hayne JA held that as the purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it was not being adduced, that the second application should have been stayed as an abuse of process. Charles JA dissented and said at 610-611: "I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the 'fresh evidence' rule. ... ... I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent." ASIC's written submissions asserted that Batt J's ruling in Guss v Magistrates' Court of Victoria [1998] 2 VR 113 established Christie as a rule of general application.


case_text: respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". The present state of authorities reveals that there are two divergent views as to the circumstances in which a court will entertain a second interlocutory application in respect of the seeking of the same order as was sought in an earlier interlocutory application which was dismissed. There is: (a) what is said to be the strict view of Brooking and Hayne JJA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 (" Christie ") and Mason P in Manning ; (b) what is said to be the liberal view of Charles JA in Christie and of Heydon JA and Foster AJA in Manning . The applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning . The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has been considered in Manning . The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie . It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition. In Manning , Heydon JA made the following observations at 155-156, [70]-[72]: "The assumptions made by Charles JA in D A Christie Pty Ltd v Baker as to the construction of the New South Wales legislation and the likelihood of evidence being received on interlocutory appeals appear to correspond with the approach of the New South Wales Courts. In these circumstances it cannot be said that the majority reasoning in D A Christie Pty Ltd v Baker should, as a matter of comity or otherwise, be followed. Rather, the position in New South Wales is such that the principles propounded by Charles JA should be applied in order to avoid an anomalous difference arising between the relative liberality with which evidence is admitted on interlocutory appeals and the extremely restrictive approach to permitting second interlocutory hearings based on additional (but not fresh) evidence urged by the Nominal Defendant. Whether Charles JA is, or the majority in D A Christie Pty Ltd v Baker are, correct on the true view of the Victorian legislation is not a matter that need be commented on. For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988 . The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis. Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs and others damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily are evils which each court in its individual discretion will rightly strain to avoid." It is to be noted that in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 , Palmer A-JA said that nothing said by the majority in Manning could be construed: "... as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order indeed, quite to the contrary: see eg, per Heydon JA (at 156 [72])". Whilst acknowledging that there is conflict in the authorities concerning the applicable legal principles governing a second interlocutory application, ASIC submitted that the view of the majority of court in Christie and Mason P in Manning was to be preferred. This preference was said to be based on a close examination of the reasons for the divergence in views and the applicable Rules of Court in Victoria and New South Wales. ASIC submitted that the minority view of Charles JA in Christie was predicated on the basis that it would be anomalous to hold that a further interlocutory application was an abuse of process because it was based on fresh evidence that was reasonably available at the first application, when, under the applicable Rules of Court, such evidence could be adduced on appeal. In Victoria, it was said that there is no longer a requirement for "special grounds" to admit new evidence in appeals from final orders or in appeals from interlocutory orders: see Supreme Court Rules , r 64.22(3). ASIC submitted that having regard to the rules in the Federal Court applicable to the reception of evidence in appeals from interlocutory orders, the correct approach in the Federal Court is, or should be, the strict view of Brooking and Hayne JJA in Christie and Mason P in Manning . The result is, according to ASIC, that the applicants must show that the fresh material they rely upon was not reasonably available to them on the first application or else the second application must be dismissed as an abuse of process. In New South Wales, however, a distinction is drawn by the legislation between appeals from final orders and from interlocutory orders. In interlocutory orders, there is no requirement for "special grounds" to adduce fresh evidence. This, it was submitted, explained why Heydon JA and Foster AJA in Manning preferred the approach of Charles JA's dissenting judgment . To this extent, it was submitted that as s 27 of the Federal Court Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules draw no distinction between appeals from final orders and appeals from interlocutory orders (as per the Victorian position) that "special grounds" (or some similar exceptional circumstances) must be established to receive fresh evidence. To the extent that there is conflict or inconsistency between the decisions or rationes in Christie and Manning , it is not for me to resolve that conflict or inconsistency or decide which is the correct or preferable principle to adopt. I leave that exercise to more eminent judicial authority. I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).


case_text: applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning . The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has been considered in Manning . The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie . It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition.


case_text: 33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362 at 369, [36] . Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.


case_title: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96


case_title: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362


case_text: is well established that the procedure to be followed by the Court on the return and the calling on of a notice to produce requires a three stage procedure: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372. At 381 Moffitt P (with whom Hutley JA and Glass JA agreed) said: "The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise."


case_title: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372


case_text: submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].


case_title: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275


case_title: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526


case_title: University of Western Australia v Gray (No 12) [2007] FCA 396


case_text: has been well established for well over one hundred and fifty years that a party moving a court for an injunction ex parte, that is to say in the absence of the party against whom the order is sought, is obliged to put before the Court all the material and relevant facts and circumstances of which it is aware which bear upon the determination of the application for the relief sought: Hilton v Lord Granville [1841] EngR 827 ; (1841) 4 Beav 130 ; 49 ER 288 ; Hemphill v M'Kenna (1842) 3 Dr & War 183 at 194. If a party fails to carry out this obligation, such a failure is sufficient in itself to warrant the discharge or setting aside of the ex parte order made by the Court.


case_title: Hemphill v M'Kenna (1842) 3 Dr & War 183


case_text: extent of the duty and responsibility imposed upon a party seeking an ex parte order was explained by Isaacs J in Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-682: " Dalglish v. Jarvie , a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. I add the word "almost" in deference to such an exceptional case as Holden v. Waterlow . The obligation is stated by Turner L.J. in that case to be to "state their case fully and fairly," and so by Sugden L.C. in Dease v. Plunkett ...(at p.261), where he said:- "The plaintiff had not fully and fairly disclosed the entire facts of the case." Lord Cottenham L.C., in Brown v. Newall ... (at p. 579) observes that the power to grant such an injunction should exist is indispensable, but, from the liability to injustice, must be exercised with caution. Then he says:- "The Court can have no ground upon which it can proceed, in granting an ex parte injunction, but a faithful statement of the case." The learned Lord Chancellor distinguishes between mis-statement, or suppression likely to influence the Court in acceding to the application, and that which is immaterial. In the present instance the admitted circumstances are most material: no order could have been made had they been stated, without considering and weighing them, and therefore the order for injunction was improperly obtained." This duty of full disclosure and candour is usually found in the context of an application for an injunction but the principles and jurisprudence which underlie and warrant the performance of the duty are, in my view, equally applicable to any application made to a court ex parte for an order against a party who is either not put on notice of the application or who is excluded for one reason or another from participating in the hearing. The performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] : "In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives ." (emphasis added) Allsop J's observation that matters should not be stated "obliquely" is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred "delphically" to "means and sources". See also Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.


case_text: was observed by Mahoney AP (with whom Clarke JA agreed) in Garrard (T/As Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677: "There is, in my opinion, no distinction for this purpose between an order in the nature of an injunction and an order which otherwise creates or confirms rights which otherwise would not exist. The obligation of candour and diligence exists in such a case." See also Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 at [11] .


case_text: was observed by Mahoney AP (with whom Clarke JA agreed) in Garrard (T/As Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677: "There is, in my opinion, no distinction for this purpose between an order in the nature of an injunction and an order which otherwise creates or confirms rights which otherwise would not exist. The obligation of candour and diligence exists in such a case." See also Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 at [11] . In Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 the Full Court of the Supreme Court of South Australia said at [12]: "The obligation to make proper disclosure requires the moving party not only to place before the Court all relevant matters which would have been raised by the other party if that party had been present but to make express reference to those matters. The obligation must extend so far because the ex parte procedure constitutes an exception to the rules of natural justice. Furthermore, it is not reasonable to impose upon the Court the obligation to sift through the papers for the purpose of ascertaining everything which is material to its decision whether to grant the relief sought. As Lander J said in Zadow v Tolmer Fuels Pty Ltd [(Lander J, 1 February 1995, unreported, Judgment No S5085] at [20]: True it is that that affidavit was on the District Court file, and it is probable ... that the District Court file was before his Honour at the time that the application for leave was granted. However, it seems to me no counsel can assume that the Judge has the time to read the whole of the contents of a District Court file before the application for leave to appeal. Nor can it be assumed by counsel that a Judge can read the file, on an application for leave to appeal, knowing the matters to which he or she ought to be addressing their mind, for the purpose of determining what is material. While the Court will, of course, conscientiously examine the papers, it is possible that relevant material may be overlooked, particularly given that the Court is not as familiar with all relevant facts as are the parties and it is not always immediately apparent what is relevant." See also Spry, The Principles of Equitable Remedies (7 th ed, 2007), 496-497. ASIC submitted that the hearing before me on 11 September 2007 could not be characterised as an ex parte hearing. It was submitted that ASIC at that stage was not an applicant but was rather a respondent seeking to resist an order which had been sought against it. ASIC submitted that no duty of full disclosure could be imposed upon a respondent. ASIC submitted further that in any event, in the course of the ex parte hearing in camera I expressed a tentative view then a firm view which was fatal to the case which ASIC was seeking to maintain and that as a result, consideration of any wider disclosure of the identity of the whistleblowers became irrelevant, and any issue relating to disclosure of the Four Corners broadcast on 5 September 2005 was still-born. In support of this submission counsel for ASIC relied on a number of passages in the confidential transcript of the in camera hearing on 11 and 17 September 2007. I refer to those passages in the confidential appendix to these reasons which are only to be published to ASIC and its legal advisers until further order.


case_text: performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] : "In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives ." (emphasis added) Allsop J's observation that matters should not be stated "obliquely" is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred "delphically" to "means and sources". See also Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.


case_title: Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375


case_text: respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).


case_text: respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". It is to be noted that in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 , Palmer A-JA said that nothing said by the majority in Manning could be construed: "... as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order indeed, quite to the contrary: see eg, per Heydon JA (at 156 [72])". I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).


case_text: At the Federal Magistrates Court, I said that I did not attend the hearing because I was sick. This was not true. The reason why I said this was that I did not want to break the promise I made to Mr Marzukie that I would not tell any one that I was working for him as a nanny. At the time, I did not realise that Mr Marzukie had taken advantage of me, and that because of his actions, I may be deported to Indonesia where I could potentially be silenced either by ending up in Jail, or worse, losing my life. 17 The second affidavit was affirmed on 1 December 2007, where the appellant deposed as follows: 1. I like to add this Affidavit to the filed Affidavit that I affirmed on 11 October 2007. 2. Since affirming the Affidavit on 11 October 2007, I have had a chance refresh my memory, and as a result if there is any conflict between this Affidavit and the Affidavit that I affirmed on 11 October 2007, this Affidavit will contain the true information and not the other Affidavit. 3. I arrived in Australia on 22 November 2004, and commenced work with Mr. Erwin Marzukie on 29 November 2004, as a live-in-nanny. 4. I commenced work with Mr. Marzukie on the basis that he was looking for a live-in-nanny. 5. When I commenced work with Mr. Marzukie, I did not know that he was a Migrant Agent until several days after commencing work, when on about 3 December 2004, Mr. Marzukie inquired about my Visa while in Australia. 6. When on about 3 December 2004, I told Mr. Marzukie about my Visa, Mr. Marzukie referred me to another Migrant Agent. 7. Later on about 3 December 2004, before the other Migrant Agent commenced his work, that Migrant Agent informed me of his fees, which I could not afford as I have just arrived in Australia, and had little money with me. 8. When I explained to Mr. Marzukie that I could not afford the fees of the other Migrant Agent, he said he will do the work for me, for free. 9. The following conversation took place when Mr. Marzukie told me that he will act as my Migrant Agent for free: I said: Thank you very much. He said: I will be your Migrant Agent provided you promise not to tell anyone that you are working for me as a live-in-nanny, otherwise we could get in trouble with the government. Can I trust you to do this? I said: Why would we get into trouble with the government if they found out that I was working with you as a live-in-nanny? He said: Don't ask questions. If I cannot trust you that you will not mention that you are working for me as a live-in-nanny, I will find someone else instead. I said: I am very sorry, I will not do that again. You know that I cannot speak English, nor can I read and write English, and that there is nobody in Australia that can help me because I do not have any friends or relatives in Australia, and you are my only hope of escaping with my life from Indonesia, and even now that I am in Australia, I am still afraid because at any time I might be sent back to Indonesia. He said: Do not worry, leave it to me. In your application for the protection visa I will put your residential address being that of one of the staff that work for me, you understand, because I said, there will be problems if I put your residential address as my house. You just have to trust me. I said: You know better than me about these things, I trust you to do the right thing by me. You are the only one in Australia that is able to help me, I fully rely on you. He said: Good, I will pay you $450.00 per week, and you have half a day every Thursday off work. That is, you will work for me six and a half days per week as a live in nanny. Remember, if you tell anybody about working for me, then you would most probably be sent back to Indonesia, do you understand? You tell nobody about this. I said: Thank you very much, I promise I will tell nobody. 10. I have worked for Mr. Marzukie from 29 November 2004 to 23 December 2005, as a live-in-nanny. 11. As stated in paragraph 9 above, Mr. Marzukie paid me $450.00 per week, and I receive free board and lodging, worth about $100.00 per week. 12. As stated in paragraph 9, above, I worked for Mr. Marzukie 6 days and a half per week, where I have half a day off work every week, every Thursday afternoon. The time I spent working per day is on average 17 hours per day. The following is a summary of the work I did at Mr. Marzukie's house: a. I wake up at 6.00am, and start work about 6.10am. b. I then go to the kitchen and boil water for Mr. and Mrs. Marzukie, so that they can have hot water for their coffee when they come downstairs. c. I then prepare Hermione's breakfast, who was about 2 years old. d. For 2 to 3 days per week I prepare breakfast for Mr. and Mrs. Marzukie, which includes fresh fried rice and noodles. e. By about 9.30am, I take a break of 30 minutes and go jogging outside the house. f. By 10.00am Hermione comes down from her parent's bedroom which is upstairs. g. I then wash Hermione, and toilet her, and then feed her breakfast. h. I take care of Hermione while Mr. and Mrs. Marzukie go to the office in the city, and they return home by 8.30 pm. i. While Mr. and Mrs. Marzukie are at the office, I do the cooking for all, the Marzukie family, and I also clean the house. Most of the cooking I do when Hermione is sleeping in my bedroom between 1.30 pm and 3.30 pm. j. I also do all the laundry washing and ironing, for the whole house. k. When Mr. and Mrs. Marzukie come home from the office at about 8.30 pm, I unload their shopping from their car, and they go upstairs to their bedroom to change their cloth. l. While Mr. and Mrs. Marzukie are upstairs, I have to have the food heated so that it is hot when they come down stairs to have their dinner. m. I eat with Mr. and Mrs. Marzukie, and when we are finished eating, I do all the dishwashing and tidy up the kitchen. n. By about 10.15 pm, once the kitchen is all clean and tidy, I go to do the laundry and do the laundry for all the towels that were used during the day. o. I then empty all the rubbish bins in the house and take the rubbish outside. p. I am responsible for putting the garbage out every Thursday night. q. Every second weekend, Mr. Marzukie's daughters from his previous marriage, Natasha and Sarah, come on Friday night and leave Sunday afternoon. I have to do extra work when they visit because they leave food all over the TV room which I have to clean up, and when they use the family bathroom they make a big mess which I have to clean up. r. When on the weekend Mr. and Mrs. Marzukie go shopping they take me with them so that I can be with Hermione and so that I can help them carry their shopping bags. s. On the weekends, Mrs. Marzukie will not feed Hermione because Hermione refuses to eat from Mrs. Marzukie, so Hermione only eats from me. t. By 11.00 pm all the work is finished, I go to bed to wake up the next day at 6.00 am and do the above all over again. 13. Based from the above my income per week from Mr. Marzukie is $450.00 plus board and lodging worth about $100.00 per week, a total amount of being $550.00 per week, for working about 110 hours per week, which means my hourly rate while working for Mr. Marzukie is $5.00 per hour, and I am not entitled to sick leave or holiday leave. At $550.00 per week my annual total income from Mr. Marzukie would be $28,600.00. 14. On or about 17 October 2007 or 18 October 2007, after Mr. Marzukie had been served with this Appeal's filed documents, I received 3 phone calls from Mrs. Marzukie, which I did not answer, and an SMS message from her "Offering me part-time work", which I did not respond to. CONSIDERATION 18 The first issue in this appeal is the resolution of the appellant's application seeking leave to adduce further evidence in the appeal. 19 There was debate before me as to the relevant considerations that may lead to the reception of further evidence by reference to a number of authorities: see for example Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 , at 640-642; Arnotts v Trade Practices Commission (1990) 97 ALR 555 at 612; Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444, and generally Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577. 20 Section 27 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') permits this Court in its discretion to receive further evidence. The exercise of the discretion to receive further evidence must be exercised judicially and consistently with the judicial process. I am not confined to the common law considerations relating to the reception of fresh evidence. So much is clear from the principles enunciated in CDJ v VAJ (No 1) [1998] HCA 67 ; (1998) 197 CLR 172 at [52] - [53] per Gaudron J in dealing with an equivalent provision in the Family Law Act 1975 (Cth). Nevertheless, there are well-established, sound principles surrounding admission of fresh evidence which should normally be considered as relevant to the exercise of the discretion to receive further evidence pursuant to s 27 , but which should not constrain this Court in considering the overall demands of justice. 21 In my view, the demands of justice do not require the admission of the further evidence sought to be relied upon by the appellant for the following reasons: (a) The further evidence was clearly capable of being adduced by the appellant in the court below, and there was no justification for the appellant not raising this evidence in the court below; (b) The appellant submitted that the evidence sought to be tendered substantiated two grounds of appeal. The first ground was that the appellant was denied a real and meaningful invitation because of the conscious deception by her migration agent on the basis of the principles in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64. The second ground was that the Tribunal's failure to take a simple administrative step such as calling the appellant on the day of the hearing was a miscarriage of the Tribunal's discretion under s 426A. For reasons set out later, I do not consider these grounds of appeal could succeed even if the further evidence was received in this appeal; and (c) There is the desirability of finality in litigation, particularly in refugee cases involving late allegations of agent fraud. It is highly desirable that those allegations be tested at first instance, and not in the appellate jurisdiction of this Court. I understand that the stakes for the appellant are very high, and that she may hold subjective fears of serious harm or even death, by reason of her actions in Indonesia. The prejudice to the appellant is a factor to be considered. Finality in litigation is a significant factor, although it must be weighed in the balance with other aspects, including what is at stake for an appellant. In view of my conclusions as to the other matters relevant to the reception of further evidence, the consideration of finality simply serves to support the final view I have reached in this appeal. 22 In relation to the ability of the appellant to provide the further evidence and whether there was a justification in not adducing the further evidence in the court below, it is necessary to examine the position as it existed before the Federal Magistrate on 11 July 2007, the date of the hearing. 23 At the outset I indicate that I do not accept as contended by the appellant that in the circumstances of this case, it can be said that the ground of appeal based upon the High Court decision in SZFDE [2007] HCA 35 ; 237 ALR 64 was not available because the High Court decision now relied upon was not handed down until 2 August 2007. The ground itself was known and was capable of being agitated, even if only formally, in view of the earlier Full Federal Court's different position. In any event, the reality of the position is that the appellant, unrepresented before the Federal Magistrate, probably had no knowledge of the legal position, but could and should have sought to put to the Federal Magistrate the true factual position in support of her appeal . This, she simply did not do. I do not consider that the fact that the ground of appeal now sought to be agitated would necessarily have been unsuccessful before the Federal Magistrate was the reason that the further evidence now sought to be adduced was not tendered before the Federal Magistrates Court. The appellant in full knowledge of the facts, chose to misinform the Federal Magistrate of the true position. 24 It is important to realise that, as the appellant herself deposes, on or about 23 December 2005 Mr Marzukie terminated the appellant's employment as a nanny and told her that he would no longer help her in relation to her visa, and stated that she was on her own. Another migration agent was found by the appellant to help with her application before the Federal Magistrates Court. The appellant suggests she had trouble communicating with this new migration agent due to language difficulties and was not in fact able to communicate her circumstances to anyone until August 2007. 25 Be that as it may, the facts and circumstances that are now sought to be relied upon by the appellant were obviously well-known to her at the time of the hearing of the Federal Magistrates Court. The appellant was no longer under the influence of Mr Marzukie or dependent on him for her livelihood, and had a new migration agent. 26 Before the Federal Magistrate no mention was made of any of the facts and circumstances now relied upon, and the appellant misinformed the Federal Magistrate that she was sick and that this was the reason she could not attend the Tribunal hearing. 27 The appellant now accepts that this was not true, and says that the reason why she misinformed the Federal Magistrate was because she did not want to break the promise she made to Mr Marzukie that she would not tell anyone that she was working as a nanny. She said she did not realise Mr Marzukie had taken advantage of her and that because of his actions she could be deported to Indonesia with possible serious consequences. 28 I should interpolate that these reasons for misinforming the Federal Magistrate were not sought to be put before this Court on this appeal, in that they were not read as being part of the evidence tendered by the appellant. However, the part of the affidavit containing these reasons was tendered by the first respondent as admissions of the appellant being contained in her first affidavit as filed (see par 31). 29 In my view, such reasons could only assist the appellant, as they seek to provide a justification for her deliberate misinforming of the Federal Magistrate. Without such evidence, this Court is only left with the fact that the appellant deliberately misinformed the Federal Magistrate that she was sick, and this was the reason she did not attend the Tribunal hearing, with no explanation sought to be made to explain the reason for the appellant so deliberately misinforming the Federal Magistrate. In the end, nothing turns upon the acceptance or otherwise of the reasons given for the appellant's conduct before the Federal Magistrates Court, but I have taken her explanation into account. 30 If Mr Marzukie still had some control over the appellant as at 11 July 2007 (the Federal Magistrates Court hearing date), and the appellant did not have a migration agent to assist her (even if only in a limited way), I could perhaps understand the appellant misinforming the Federal Magistrate. However, by 11 July 2007 (nearly one year and six months after being sacked by Mr Marzukie), the appellant freely chose not to inform the Federal Magistrate of the facts and circumstances now relied upon, and instead said she was sick at the time of the Tribunal hearing and for this reason could not attend. 31 Even accepting that the discretion to accept the further evidence now sought to be adduced is very wide, and is not to be limited by enumerating an exhaustive list of relevant considerations, an important consideration is whether the evidence was capable of being adduced by the appellant in the court below and whether there is any justification for the evidence not being adduced. The hearing before the Federal Magistrates Court was the appellant's opportunity to advance her case, and inform the Federal Magistrates Court truthfully of the facts. I am satisfied that the appellant did have the free choice and the ability to inform the Federal Magistrate of the facts and circumstances now relied upon. If the reason for not doing so was because of her promise not to tell about her employment, that was not a proper basis for misinforming the Federal Magistrates Court.


case_title: Greater Wollongong City Council v Cowan (1955) 93 CLR 435


case_title: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 236 ALR 42

case_text: In Minister for Immigration and Multicultural Affairs v SZFDE and Anor (2006) 236 ALR 42 , French J said at [129]-[130]: There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person's participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if SZFDE and her family appeared before the tribunal they would say something inconsistent with his proposed submission to the minister. The advice amounted to a representation that the tribunal process was a sham and that participation in it might prejudice SZFDE's prospects of a successful outcome on the basis of a submission to the minister. SZFDE's negative response to the hearing invitation was procured by the dishonest conduct of her purported representative. To that extent her consent to the disposition of her application for review without a hearing was of no effect. She was denied, by fraud, the opportunity to appear at and be heard by the tribunal on a matter of vital importance to her future and that of her family. The decision-making process; that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7 , was corrupted. The importance of the appearance before the tribunal to the outcome of the review was highlighted by the tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with SZFDE because of her non-appearance.


case_text: In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30] - [33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal's statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]: We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE , at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.


case_title: Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577