case_outcome: considered

case_title: Prior v Sheldon (2000) 48 IPR 301

case_text: As far as loss of reputation is concerned the applicant sought to overcome the difficulties it faced by referring to cases in which damages have been allowed for injury to reputation and by submitting that this was such a case. In particular, reference was made to the decision of Wilcox J in Prior v Sheldon (2000) 48 IPR 301. At issue in that case was the damages to be awarded for the infringement of copyright in two original musical works used in connection with a popular television series. One joint owner had claimed sole authorship of the two original musical works. The other joint owner sued for infringement of copyright. Wilcox J referred to the significance of the recognition of authorship in terms of possible future commissions from film and television producers and directors. The infringement of copyright had meant that the innocent party had been unable to enhance her reputation and enhancement of her reputation may have led to future engagements. That loss, said Wilcox J, should be reflected in the award of damages although he said the amount was difficult to calculate. He awarded a sum of $40,000. 14 It seems to me that this case is quite a different one. There is no evidence that any of the three parties who received the brochure placed orders for skins with the first respondent, or were dissuaded from placing orders for skins with the applicant by reason of the distribution of the brochure. For completeness I also note that there was no evidence in this case of damage to reputation caused by the production and distribution of inferior or substandard copies of the artworks.


case_outcome: referred to

case_text: The meaning of "the flagrancy of the infringement" has been described in various ways. In Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 Brightman J referred to it as "scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringement"; in Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70, Gowans J (at 70) referred to it as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit"; and in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 103 flagrancy was said to connote conduct which could probably be described as "glaring, notorious, scandalous" or "blatant". In Polygram at 461-462 Lockhart J said that flagrancy did not include mere mistakes or carelessness and that if the infringer mistakenly believed that he or she owned the relevant copyright, or acted in the bona fide belief that no copyright subsisted in the plaintiff's work then the conduct was not flagrant.


case_text: The meaning of "the flagrancy of the infringement" has been described in various ways. In Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 Brightman J referred to it as "scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringement"; in Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70, Gowans J (at 70) referred to it as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit"; and in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 103 flagrancy was said to connote conduct which could probably be described as "glaring, notorious, scandalous" or "blatant". In Polygram at 461-462 Lockhart J said that flagrancy did not include mere mistakes or carelessness and that if the infringer mistakenly believed that he or she owned the relevant copyright, or acted in the bona fide belief that no copyright subsisted in the plaintiff's work then the conduct was not flagrant. 33 The fifth matter I must have regard to is "any benefit shown to have accrued to the [respondents] by reason of the infringement". In Ravenscroft v Herbert [1980] RPC 193 Brightman J said that in his view "benefit" in the English section implied "that the defendant has reaped a pecuniary advantage in excess of the damages he would otherwise have to pay (see also Polygram 38 IPR at 462 per Lockhart J). There is no evidence that the respondents secured any financial benefit in this case by reason of the distribution of the brochure to the three named parties. 34 I do not think there are any other relevant matters apart from those I have already mentioned. 35 In my opinion, having regard to the matters I have identified, an award of additional damages should be made. It should be a modest award and I award a sum of $10,000.


case_text: The second matter I must have regard to is the need to deter similar infringements of copyright. It seems to me considering authorities such as Universal Music Australia Pty Ltd v Miyamoto (aka DJ Moto ) (2004) 62 IPR 605 and Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 that the circumstances may call for an award of additional damages, or a larger award of additional damages, if there is a real need to deter similar infringements of copyright. In Universal Music Australia Pty Ltd the infringers were disc jockeys who were likely to be regarded as role models for others and the infringements were deliberate and in flagrant disregard of the innocent party's rights, and in Sony Entertainment (Australia) Ltd the respondents had, to use Jacobson J's words in that case (at 41 [175]) "shown utter contempt for the applicants and for the court". This case does not exhibit those features and I think that in this case the need to deter similar infringements of copyright is a somewhat neutral factor. The second respondent's conduct was fairly blatant, but at the same time, upon complaint the respondents changed the brochure and gave undertakings not to use the artworks.


case_text: Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case.


case_title: Universal Music Australia Pty Ltd v Miyamoto (aka DJ Moto) (2004) 62 IPR 605


case_outcome: applied

case_text: Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 , McHugh J was concerned with the application of O 60 r 6 of the High Court Rules in respect of the applicant's application for an extension of time. McHugh J said, at 480: [Order 60 rule 6] provides that a court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extention of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. There are two relevant matters concerning whether the Court should exercise its discretion to extend time. The first is whether a sufficient explanation for the delay has been forthcoming; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought be allowed to proceed. The applicant, on the first issue, says that the delay was occasioned by an application which she made to the Australian Human Rights Commission after the dismissal of a Federal Magistrates Court proceedings. The evidence establishes that the Commission said on 17 October 2008 that it was not the appropriate body for reviewing the applicant's case. On 20 October 2008, the applicant filed her application for an extension of time in the Federal Court. This application was filed promptly after the applicant was advised by the Australian Human Rights Commission determined that it was not the appropriate body to review the applicant's case.


case_outcome: cited

case_text: Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3] , Kiefel, Weinberg, and Stone JJ held that an order dismissing an application for want of jurisdiction was interlocutory in character, at least where it does not finally dispose of the parties' rights. Whether the judgment of Jarrett FM is final or interlocutory, the application for extension of time to file a Notice of Appeal, which was filed 20 October 2008, is either 34 days late if it was an interlocutory judgment, or 20 days late if it was a final judgment. It is unnecessary to determine that question. Order 52 r 5(3) of the Federal Court Rules provides: (3) Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with.


case_outcome: followed

case_text: The circumstances arising in these proceedings appear to be similar to those considered by the Full Federal Court in Allanson v Midland Credit Ltd and Another [1977] 16 ALR 43. In that matter a creditor had brought proceedings in the Supreme Court of New South Wales claiming monetary sums from the defendants. While the case was pending, a sequestration order was made against one of the defendants to those proceedings. The litigation involved complex issues including those raised under defences and cross-claims and leave was sought under s 58(3)(b) of the Act to continue the proceedings. At 48 their Honours observed: It would seem that all of these issues would be better and more comprehensively dealt with by a contested trial of the action in the Supreme Court than could possibly be the case if Midland Credit were required to lodge a proof of debt in respect of its claim against Mr Allanson alone. 19 Similar considerations arise in this instance. The determination of the rights of Westpac will resolve any issue of ownership and of the existence of charges in respect of the identified properly.


case_text: The grant of the stay pursuant to s 52(3) of the Act made by Smith FM on 27 July 2007 does not alter the status of Mr Ollis as a bankrupt: see Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297 at 301. The sequestration order, having been made, remains in force. Accordingly s 58(3)(b) of the Act continues to apply rendering the current application for leave necessary. 21 A further issue raised is the effect of the orders sought if the restraining orders obtained by the New South Wales Crime Commission are set aside by the Court of Appeal. It is apparent that by virtue of the operation of s 58A of the Act, the property subject to the restraining orders does not form part of Mr Ollis' bankrupt estate whilst the restraining orders are in force. If the orders are set aside, the provisions of s 58(1) apply so that his property then becomes vested in the trustee. It is only at this point that Westpac would seek to join Mr Condon as a defendant in the proceedings. The Court does not need to consider this issue further as Mr Dibb has submitted that Mr Ollis has not in fact appealed against the making of the restraining order but only in respect of the making of a proceedings assessment order. 22 The Court is satisfied from the evidence before it that leave under s 58(3)(b)of the Act is required to enable Westpac to proceed with the adjudication of its claim against Mr Ollis and others and that the grant of leave would not be contrary to the purpose of the Act. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy . Associate: Dated: 8 August 2007 Counsel for the Applicant: D A McLure Solicitor for the Applicant: Henry Davis York Counsel for the Respondent: C J Dibb Solicitor for Trustee of Respondent: Gordon & Johnstone Date of Hearing: 8 August 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1194.html


case_text: The term 'in respect of' as it appears in s 58(3)(b) of the Act has been considered in Re McMaster; Ex parte McMaster (1991) 33 FCR 70 at 72 and in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111. Each of those authorities referred to the wide construction which is to be given to such words ' in respect of' as contained in s 58(3)(b) of the Act. 15 In Re McMaster 33 FCR 72-73, Heerey J referred to the considerations which must be addressed by the Court when considering such an application. He stated: The modern bankruptcy law serves three purposes. The first is to ensure that the assets of the bankrupt are distributed rateably among creditors. The second, which is interrelated with the first, is to ensure that one creditor does not obtain an undue advantage over other creditors. The third is to bring about the discharge of the debtor from future liability for his existing debts, so that the debtor may start afresh: see Storey v Lane (supra) (at 556). 16 Counsel for Mr Ollis submitted that the continuation of the proceedings would place Westpac in a more advantageous position relative to other creditors, because Westpac sought declarations that Mr Ollis held certain property or interest in property on trust for Westpac and alternatively a declaration that property and interests in property were subject to a charge in favour of Westpac. 17 Despite such circumstances, the Court considers that the proceedings would merely determine the rights of the parties in relation to the property or property interests and determine ownership thereof. The determination would not provide Westpac with any privilege or preference. Accordingly, the submission is rejected.


case_text: The term 'in respect of' as it appears in s 58(3)(b) of the Act has been considered in Re McMaster; Ex parte McMaster (1991) 33 FCR 70 at 72 and in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111. Each of those authorities referred to the wide construction which is to be given to such words ' in respect of' as contained in s 58(3)(b) of the Act.


case_text: Traditionally, the test applied under O 20 r 1 has been that stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 (" General Steel ") at 129-130. The nature and scope of the relevant principles have been discussed by the High Court in recent decisions: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority of New South Wales ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 80 ALJR 1100.


case_title: Batistatos v Roads and Traffic Authority of New South Wales ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 80 ALJR 1100


case_text: The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].


case_title: Garrett v Macks [2006] FCA 601


case_text: The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.


case_text: Traditionally, the test applied under O 20 r 1 has been that stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 (" General Steel ") at 129-130. The nature and scope of the relevant principles have been discussed by the High Court in recent decisions: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority of New South Wales ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 80 ALJR 1100. 9 The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].


case_title: Hicks v Ruddock [2007] FCA 299


case_title: Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572


case_title: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688


case_title: Magman International v Westpac Banking Corporation (1991) 32 FCR 1


case_title: Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286


case_title: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673


case_text: In the reasons for judgment delivered on 21 December 2005, I said Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867 (at [5]): 'The application not only lacked merit but it appeared, in preparation, to have fallen short of the minimum standards of professional competence that should be expected in an application in this Court where the applicant is represented by a legal practitioner. The submissions also disclose a failure to give adequate consideration to key legal issues such as the non-statutory character of the Scheme.' I made an order that: 'The solicitors for the applicants are to show cause by written submissions filed on or before 28 February 2006 why they should not pay the respondent's costs of the application.' The respondent was to file written submissions on the question of costs by 28 March 2006. Written submissions were filed with the Court by the applicants' solicitors and on behalf of the respondents. 7 Section 43 of the Federal Court of Australia Act 1976 (Cth) provides, inter alia: '(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. ... (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.' 8 Order 62 r 9 of the Federal Court Rules provides: '(1) Without limiting the Court's discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a legal practitioner is responsible (whether personally or through a servant or agent), the Court may, after giving the legal practitioner a reasonable opportunity to be heard, do any of the following: (a) disallow the costs as between the legal practitioner and the legal practitioner's client; (b) if the legal practitioner is a barrister disallow the costs as between the barrister and the barrister's instructing solicitor; (c) direct the legal practitioner to repay to the client, costs which the client has been ordered to pay to another party; (d) direct the legal practitioner to indemnify any party other than the client against costs payable by the party indemnified. ... (3) Before making an order under subrule (1), the Court may refer the matter to a Registrar for inquiry and report. (4) The Court may order that notice of any proceeding or order against a legal practitioner be given, as specified in the order, to: (a) the legal practitioner's clients; or (b) if the legal practitioner is a barrister the barrister's instructing solicitor. (5) For the purpose of giving effect to a costs order, the Court may give ancillary directions, including a direction to a legal practitioner to provide to the Court or a party to the proceeding a bill of costs in assessable form.'


case_text: The power of the Court to award costs under s 43 of the Federal Court Act is adequate to support orders against non-parties to the litigation. Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 so held with respect to the like general discretion conferred upon the Supreme Court of Queensland by O 91 r 1 of its Rules. The power does not bring with it an unfettered discretion. It 'must be exercised judicially and in accordance with general legal principles pertaining to the law of costs' Knight at 192 (Mason CJ and Deane J, Gaudron J agreeing at 205) quoting Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462 (Lambert J). 10 The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).


case_text: The power of the Court to award costs under s 43 of the Federal Court Act is adequate to support orders against non-parties to the litigation. Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 so held with respect to the like general discretion conferred upon the Supreme Court of Queensland by O 91 r 1 of its Rules. The power does not bring with it an unfettered discretion. It 'must be exercised judicially and in accordance with general legal principles pertaining to the law of costs' Knight at 192 (Mason CJ and Deane J, Gaudron J agreeing at 205) quoting Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462 (Lambert J).


case_text: The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J). 15 In Bagshaw v Scott [2005] FCA 104 , Bennett J agreed with the explanation of the authorities by Mansfield J in Kumar . Her Honour was not satisfied that the solicitor in Bagshaw had deliberately or consciously decided to commence proceedings without any recognition of the absence of a prospect of success. His conduct was not so unreasonable that it attracted an order that he pay costs personally. Her Honour set out a number of propositions emerging from the authorities. McColl JA undertook a similar exercise in Lemoto. It is not necessary to quote or analyse those lists here save to acknowledge them as convenient, albeit not entirely congruent, references to the law as stated in English and Australian cases. 16 It is necessary to bear in mind the particular statutory context in which the decisions of different courts are made in awarding costs against practitioners personally. In England, for example, prior to 1990, superior courts had an inherent disciplinary jurisdiction to make orders for the payment of costs by solicitors personally Myers v Elman at 290 (Viscount Maughan). That power was widened and extended to both solicitors and barristers by the enactment, in 1990, of a new s 51 of the Supreme Court Act 1981 (UK) providing for what are called 'wasted costs' orders. Some of the case law in this area is based upon rules of court predating that change which are similar in terms to O 62 r 9. Like rules are to be found in the State Supreme Courts see the detailed discussion by McColl JA in Lemoto at 319-320. 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.


case_title: Myers v Elman [1940] AC 282

case_text: The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J). 16 It is necessary to bear in mind the particular statutory context in which the decisions of different courts are made in awarding costs against practitioners personally. In England, for example, prior to 1990, superior courts had an inherent disciplinary jurisdiction to make orders for the payment of costs by solicitors personally Myers v Elman at 290 (Viscount Maughan). That power was widened and extended to both solicitors and barristers by the enactment, in 1990, of a new s 51 of the Supreme Court Act 1981 (UK) providing for what are called 'wasted costs' orders. Some of the case law in this area is based upon rules of court predating that change which are similar in terms to O 62 r 9. Like rules are to be found in the State Supreme Courts see the detailed discussion by McColl JA in Lemoto at 319-320.


case_text: The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J). 13 In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J rejected an application for costs made by the Minister against the solicitor for the applicant. His Honour held that, simply by instituting or maintaining on instructions, proceedings with no real prospect of success a solicitor would not be exposed to an order for costs. He referred to Medcalf v Mardell at 143-144 (Lord Hobhouse) and the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24] (Davies JA). In the latter case Davies JA, with whom Williams JA and Philippides J agreed, said that: 'If the case is plainly unarguable it is improper to argue it.' Nevertheless Mansfield J found, in the concurring judgment of Williams JA, a qualification in his reference to what Lord Hobhouse said in Medcalf v Mardell (at 143-144) : 'So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.'


case_text: The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).


case_title: Etna v Arif (1992) 2 VR 353


case_title: Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11


case_title: Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502


case_title: De Georgiou v Dunn (No 2) (2005) 65 NSWLR 285


case_text: The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added)


case_text: The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added) 22 Having regard to the passages to which I have referred from the decision of the Full Court in Levick and the subsequent cases, I do not consider that the generality of the approach enunciated in De Sousa has been relevantly limited. A costs order may be made under s 43 of the Federal Court Act or O 62 r 9 when the solicitor or counsel has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of an application as to be seriously derelict in his or her duty to the client and/or to the Court. There is no relevant distinction here between the position of solicitor and barrister whether in a divided or a fused profession.


case_text: The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added) 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.


case_text: The Full Court in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 cited Goldberg J with approval and added the caution that it will often be difficult for a court to know all the details and circumstances of a solicitor's instructions, but then said (at 166 [44]): '... it is equally important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor's unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible. In the context of instituting or maintaining a proceeding or defence, we agree with Goldberg J that unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.' (emphasis added) It is the last mentioned conduct which is relevant here where the question is whether the practitioner has proceeded without any, or any proper, consideration of the prospects of success. That does not require demonstration of any collateral or improper purpose. 18 Weinberg J drew a distinction between the approach taken by the Full Federal Court in Levick and that taken by the Queensland Court of Appeal in Steindl. He regarded Steindl as sanctioning a range of cases in which a solicitor might be ordered to pay costs, wider than that enunciated in Levick . He said of O 62 r 9(1) (at [15]): ' The question whether costs have been unreasonably incurred because of the manner in which a legal practitioner has conducted a case should not require consideration of whether this was done for an ulterior purpose. If a client instructs a legal representative to take points that are manifestly without merit, the legal representative has a duty to the Court to refuse to act on those instructions. In that regard, there is a distinction between points that are barely arguable, but most likely to fail which can and sometime must be taken, and points that are simply unarguable. If a point is plainly unarguable, it is improper to argue it. If a client insists upon it being argued, the legal representative should decline to do so and, if necessary, withdraw from the proceeding.' 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9. 22 Having regard to the passages to which I have referred from the decision of the Full Court in Levick and the subsequent cases, I do not consider that the generality of the approach enunciated in De Sousa has been relevantly limited. A costs order may be made under s 43 of the Federal Court Act or O 62 r 9 when the solicitor or counsel has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of an application as to be seriously derelict in his or her duty to the client and/or to the Court. There is no relevant distinction here between the position of solicitor and barrister whether in a divided or a fused profession.


case_text: In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J rejected an application for costs made by the Minister against the solicitor for the applicant. His Honour held that, simply by instituting or maintaining on instructions, proceedings with no real prospect of success a solicitor would not be exposed to an order for costs. He referred to Medcalf v Mardell at 143-144 (Lord Hobhouse) and the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24] (Davies JA). In the latter case Davies JA, with whom Williams JA and Philippides J agreed, said that: 'If the case is plainly unarguable it is improper to argue it.' Nevertheless Mansfield J found, in the concurring judgment of Williams JA, a qualification in his reference to what Lord Hobhouse said in Medcalf v Mardell (at 143-144) : 'So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.' 14 Mansfield J said that the proper focus was firstly upon whether the solicitor for the applicant was shown to have been 'seriously derelict in his duty by reason of the institution of the application'. The respondent Minister in Kumar accepted that the applicant had given the solicitor instructions to institute the application. There was no evidence about what information had been given to the solicitor for the applicant or what advice the solicitor gave the applicant. His Honour said (at [26]): 'By instituting the proceedings on instructions, but without fully investigating the claims to be made, the solicitor for the applicant is not necessarily shown to have committed a serious dereliction of duty.' 15 In Bagshaw v Scott [2005] FCA 104 , Bennett J agreed with the explanation of the authorities by Mansfield J in Kumar . Her Honour was not satisfied that the solicitor in Bagshaw had deliberately or consciously decided to commence proceedings without any recognition of the absence of a prospect of success. His conduct was not so unreasonable that it attracted an order that he pay costs personally. Her Honour set out a number of propositions emerging from the authorities. McColl JA undertook a similar exercise in Lemoto. It is not necessary to quote or analyse those lists here save to acknowledge them as convenient, albeit not entirely congruent, references to the law as stated in English and Australian cases.


case_text: In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J rejected an application for costs made by the Minister against the solicitor for the applicant. His Honour held that, simply by instituting or maintaining on instructions, proceedings with no real prospect of success a solicitor would not be exposed to an order for costs. He referred to Medcalf v Mardell at 143-144 (Lord Hobhouse) and the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24] (Davies JA). In the latter case Davies JA, with whom Williams JA and Philippides J agreed, said that: 'If the case is plainly unarguable it is improper to argue it.' Nevertheless Mansfield J found, in the concurring judgment of Williams JA, a qualification in his reference to what Lord Hobhouse said in Medcalf v Mardell (at 143-144) : 'So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.' 18 Weinberg J drew a distinction between the approach taken by the Full Federal Court in Levick and that taken by the Queensland Court of Appeal in Steindl. He regarded Steindl as sanctioning a range of cases in which a solicitor might be ordered to pay costs, wider than that enunciated in Levick . He said of O 62 r 9(1) (at [15]): ' The question whether costs have been unreasonably incurred because of the manner in which a legal practitioner has conducted a case should not require consideration of whether this was done for an ulterior purpose. If a client instructs a legal representative to take points that are manifestly without merit, the legal representative has a duty to the Court to refuse to act on those instructions. In that regard, there is a distinction between points that are barely arguable, but most likely to fail which can and sometime must be taken, and points that are simply unarguable. If a point is plainly unarguable, it is improper to argue it. If a client insists upon it being argued, the legal representative should decline to do so and, if necessary, withdraw from the proceeding.' 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.


case_text: The power to award costs against a legal practitioner under O 62 r 9 was recently considered by Weinberg J in Tran v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 199. In that case his Honour delivered judgment refusing an application for an extension of time within which to appeal against a decision of a Federal Magistrate. The question with which his Honour dealt in his subsequent judgment in the matter was whether the applicant's solicitor should be ordered, under O 62 r 9(1)(c) of the Federal Court Rules , to repay to the applicant some portion of the costs that the applicant had been ordered to pay to the respondent.


case_text: In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.


case_title: Harley v McDonald [2002] NZLR 1

case_text: The Privy Council in Harley v McDonald [2002] NZLR 1, on appeal from the Court of Appeal of New Zealand, held that the High Court of New Zealand had power to make costs orders against barristers and solicitors. In that country, as in Western Australia, there is a fused profession in which persons are admitted to practice as both barristers and solicitors. All have the same rights of audience in the courts. Lord Hope, delivering the judgment of their Lordships, said (at 23): '... it is hard to find a sufficiently clear dividing line between the style of practice of barristers on the one hand and that of solicitors on the other to justify giving an immunity from costs orders to barristers which is not enjoyed by solicitors. Recognition that barristers are subject to the same jurisdiction in this respect as solicitors is not inconsistent with any statutory provision or any rule of practice. In both cases there is the same public interest that a serious dereliction of duty to the Court by one of its officers should be dealt with by the Court. Their Lordships agree with the Court of Appeal that it is desirable in the public interest that the High Court should have power in appropriate cases to award costs against a barrister personally.' The distinction between solicitor and barrister appears to have no relevance in terms of principle in the exercise of the Court's powers to award costs against practitioners personally under s 43 or under O 62 r 9. Their distinctive roles may give rise to different applications of the general principles informing the exercise of the Court's powers.


case_title: Ridehalgh v Horsefield [1994] Ch 205

case_text: The Privy Council accepted the Court of Appeal's conclusion (at 25-26): '...that a duty rests on officers of the Court to achieve and maintain appropriate levels of competence and care and that, if he is in serious dereliction of such duty, the officer is properly amenable to the costs jurisdiction of the Court.' Their Lordships cautioned, however, that care must be taken not to assume that just because it appears to the court that the case was hopeless there was a failure by the barrister or solicitor to achieve the appropriate level of competence and care. In this respect the same distinction was drawn, as in the Australian cases, between the practitioner who represents a client in a weak or hopeless case after having advised the client of its weakness or hopelessness on the one hand and the practitioner who lends assistance to proceedings which are an abuse of process of the court. Their Lordships cited the Master of the Rolls in Ridehalgh v Horsefield [1994] Ch 205 (at 234): 'It not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.' The Privy Council added (at 26): 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the Court.' 26 The legal practitioner, who acted as both counsel and solicitor for the applicants in this case, described his clients in an affidavit sworn on 23 August 2005. He referred to them as 'elderly, disabled non-English speaking, unskilled labourers or unemployed persons'. In his written submission filed on 26 August 2005 and signed by him, he said (at [77]): 'The applicants are disadvantaged asian (sic) Islanders of non-English speaking background without any education or training who were resettled to mainland Australia from Christmas Island at the direction and authority of the Commonwealth. They ought not have to be subjected to further unconscionability and inequity by the respondent.' There is no basis for any suggestion that the shortcomings of the application and the way in which the proceedings were conducted has anything to do with the applicants themselves. The circumstances of this case make it highly improbable that the practitioner advised his clients of the hopelessness of the application and that he was instructed to proceed with it notwithstanding. 27 The application for judicial review did not, as required by the Federal Court Rules , set out the grounds of the order for review it sought. It sought no extension of time for claims which were plainly out of time. It disclosed a conceptual confusion between the identification of the conduct and decisions complained of and the grounds of judicial review themselves. The formulation of the claim for relief by way of mandamus in the amended application was thus: '... a writ of mandamus directing:- 1.1 An order of review in respect of the decision of the respondent...' 28 The ADJR Act applies to decisions of an administrative character made 'under an enactment'. The relevant enactment was not able to be identified by the practitioner and as it turned out there was none. The legal assistance scheme was administered pursuant to an appropriation made under Appropriations Acts. In the event no relief was available under the ADJR Act as there was no enactment under which, it could be said, any of the challenged decisions had been made. There was no legal duty which mandamus could enforce. 29 In written submissions on the costs issue the applicants' legal practitioner argued that the application was considered by him 'to be the only legal relief available to resolve the legal assistance application'. He said 'There are no other legal avenues available.' The practitioner argued further (at [23]): 'The applicant's (sic) solicitors presented proper evidence and presented various authorities in support. The list of authorities filed 26 August 2005 contained 23 authorities and the outline of submissions were well researched and were 20 pages long. The research and effort placed into the application was substantial and the facts were well presented. The parties agreed to a final hearing based on affidavit evidence only and that final hearing was relatively brief of 1.5 hours. The applicants did all they could to seek the intervention of the court in a diligent and cost effective manner considering the lack of financial capacity available.' The practitioner submitted that an order that he pay the costs of the applicants would be 'unfair and contrary to the authorities referred to above as the solicitors acted in their best endeavours on a bona fide basis with a proper and moral purpose to obtain legal assistance funding for the applicants in their best interests'.


case_text: The claim that there is a serious question to be tried as to the "sterilisation" of the applicant's common law rights to instruct legal advisers and obtain legal advice can be rejected on any one of a number of grounds. The respondent's submission was that, assuming such a common law right to exist, it could not prevail over the statutory obligation in the Act to remove the applicant. It is clear, in my opinion, that such common law right to instruct legal advisers as may exist and the applicant never articulated the precise basis or scope of this alleged right cannot entail a right in the applicant to remain in Australia. It is true, as the respondent submitted, that the statutory obligation to remove the applicant could displace the applicant's common law rights. Although I would not readily impute to the legislature an intention to displace those rights absent a clear statement of that intention, in my opinion the mandatory command of s 198 is expressed in clear and unambiguous language. In this regard, I refer to the decision of the High Court on the interpretation, in a different factual context, of ss 189 , 196 and 198 of the Act in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 and, in particular, at 581 per McHugh J and at 643 per Hayne J (Heydon J agreeing at 662-3). Their Honours held that the provisions, being sufficiently clear, could not be read as subject to any intention not to affect fundamental rights. The shorter answer, however, is that neither the power to remove the applicant, nor the actual removal of the applicant, displaces any cause of action he may have against the Commonwealth or his right to instruct legal advisers in connection with such cause of action. I was told that his personal circumstances in Indonesia are such that it will be practically difficult for him to instruct legal advisers in Australia. That may be so, but does not constitute sufficient reason to restrain his proposed removal. 10 The claim that there is a serious question to be tried in relation to a right said to arise from the Convention was put on a somewhat shifting basis. It is plain that the Convention itself cannot be the source of rights under Australian law. Some provisions of the Convention have been incorporated into Australian law in the Consular Privileges and Immunities Act 1972 (Cth) but the applicant did not seek to rely upon this Act. The applicant cited Article 36 of the Convention, which deals with communication between consular officials and nationals of the officials' sending state, but that article is not incorporated into the domestic law. The applicant expressly did not contend that the rights expressed in the article had attained the status of customary international law and, even if they had, it by no means follows that they are for that reason enforceable by this Court. The applicant submitted primarily that the Convention, ratified by the Commonwealth, would be "a relevant consideration in relation to the ability of the Minister to remove" a foreign national from Australia. It was not made clear whether the applicant used the phrase "relevant consideration" in the administrative law sense, namely, a condition of the lawful exercise of the statutory power to deport, or whether the submission was as to the interpretation of the scope of the power. Counsel for the respondents evidently understood the submission against them to be of the latter form and submitted that although unincorporated treaties can be used as an extrinsic aid to interpretation, this was not an appropriate case. It matters little, for the applicant cannot succeed on either basis, as I will explain. 11 The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al-Kateb [2004] HCA 37 ; 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions.


case_text: The matters a court must consider on an application for an interim injunction are well-known. They were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ and recently reiterated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] - [72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). In this case, I was not satisfied that the applicant had made out a prima facie case. The applicant's submissions were put in terms of there being two "serious questions to be tried" (see Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153). It is permissible to approach the issue as one of whether there is a serious question to be tried provided that whether a question to be tried is a 'serious' question is understood to depend upon the same considerations, explained in Beecham [1968] HCA 1 ; 118 CLR 618 , which go to the strength of the probability upon which the existence of a prima facie case turns: O'Neill [2006] HCA 46 ; 227 CLR 57 at [70] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]).


case_title: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618


case_title: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148


case_text: The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al-Kateb [2004] HCA 37 ; 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions.


case_title: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60


case_text: was the existence of the report and the information in it about the alternative motive for coming to Australia that was of "dispositive relevance" to the Convention claims advanced by the appellant before the Tribunal: MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483 at [27] . Particulars of the information and the reason why it may be relevant were given to the appellant in accordance with s 424A(1)(b). The fact that the information may have been provided in the first instance by the appellant to the tour operator was of no dispositive relevance and was not required to be supplied to the appellant. To the extent that it is permissible to refer to the Tribunal's reasons to determine whether the Tribunal considered the source of the information to be a reason for affirming the decision, the reasons of the Tribunal, in particular at [87], support the conclusion I have reached.


case_text: proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. I accept of course that, as the High Court said in SZBYR at [17], the question is to be determined in advance of, and independently from, the Tribunal's reasoning. But whether one looks at the transcript of the hearing, or the Tribunal's reasons, it is plain, in my opinion, that the approach taken by the Federal Magistrate was correct. As his Honour said at [20], the information which the Tribunal considered would be a reason for affirming the decision was that a report had been received which indicated that there was a motive for the appellant wishing to come to Australia different from that which formed the basis of his application for a protection visa, and the existence of that report cast doubt upon the credibility of the appellant. This is clear from what the Tribunal put to the appellant during the oral hearing as revealed in the passage from the transcript set out above. Moreover, as the Federal Magistrate went on to say at [20], the existence of the report and the reason why it may be relevant to the decision making process was clearly explained in the s 424A letter. In my opinion, this approach is inconsistent with the proper construction of s 424A(1)(a) and the authorities which have construed it. In my view, the effect of what the High Court said in SZBYR at [17], and, in particular, of what the Full Court said in SZKLG at [33] is that the word "considers" in s 424(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case.


case_text: proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. In my opinion, this approach is inconsistent with the proper construction of s 424A(1)(a) and the authorities which have construed it. In my view, the effect of what the High Court said in SZBYR at [17], and, in particular, of what the Full Court said in SZKLG at [33] is that the word "considers" in s 424(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case.


case_text: proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. There is some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened. In SZMPT at [16] [18], I expressed the view that the Tribunal's reasons are not the starting point, but that it may be appropriate to refer to them to determine whether the Tribunal considered the information to be a reason for affirming the decision under review.


case_text: The notice of appeal contains three grounds. They mirror the three grounds that were before the court below and assert that the Federal Magistrate failed to make findings relating to the decision of the Tribunal on the basis that there had been: 1. breach of procedural fairness in failing to disclose independent country information to the appellant; 2. Wednesbury unreasonableness in finding that the appellant was able to relocate within India; and 3. manifest unreasonableness in finding that the appellant would not have a fear of persecution if he relocated to another state within India, particularly because the Tribunal made no finding identifying a place to which the appellant could relocate. 8 The first ground must fail because section 422B of the Migration Act excludes common law natural justice or procedural fairness. The only applicable standard with respect to disclosure of information is contained in s 424A and that excludes country information. 9 The second and third grounds seem to me both to raise what the appellant has called " Wednesbury unreasonableness", which is also referred to by the appellant's other description, "manifest unreasonableness". The reference to Wednesbury unreasonableness is a reference to the judgment of Lord Greene MR in the English Court of Appeal in Associated Provincial Picture Houses Limited v The Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223. The test promulgated in that case, as restated in ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 576), is whether a purported exercise of administrative power "is so unreasonable that no reasonable person could have so exercised the power". I will assume that such a purported exercise of power is no exercise of the power because it involves jurisdictional error. The appellant relies upon this ground, which undoubtedly raises a question of law, to challenge the two ultimate findings of fact made by the Tribunal. They are: 1. that the appellant could safely relocate within India to a place where there would be no well-founded fear of persecution; and 2. that it was reasonable in all the circumstances to expect the appellant to do so. 12 I have looked generally at the question of whether there was manifest unreasonableness in the decision. I do not think there was. Whether I would have made the same findings of fact as the Tribunal made is not the question. The Tribunal addressed relevant issues, made findings of fact that were available to it and came to rational conclusions relating to those matters. It seems to me that that answers any claim of Wednesbury unreasonableness. 13 The appellant has presented his own case before me this afternoon. His oral submissions were limited to submitting to me that it was not possible for him to relocate because wherever he could practically go, he would be found by the NDF. This is an attempt to challenge the findings of fact of the Tribunal, upon which its decision relating to relocation was based. As I have said, except in a small class of cases, such as one affected by Wednesbury unreasonableness, no such challenge to the facts is available on an appeal to this court. In this case a claim based on Wednesbury unreasonableness must fail. 14 I have read the decision of Barnes FM in this matter. That decision also analyses the Tribunal decision and considers the arguments relating to its correctness raised before that court. I see no error in the reasoning of Barnes FM, although I notice that I have assessed the appellant's appeal with somewhat greater attention to the so-called Wednesbury ground because it seemed to me directly to be raised in the appeal. In the result, there is no error of law in the decision of the Tribunal and no appellable error in the decision of the Federal Magistrates Court. It follows that the appeal must be dismissed and will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes Associate: Dated: 12 March 2007 Counsel for the Appellant: The Appellant appeared in person with the assistance of a Malayalam interpreter Counsel for the First Respondent: M Izzo Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 6 March 2007 Date of Judgment: 6 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/304.html


case_text: The second and third grounds seem to me both to raise what the appellant has called " Wednesbury unreasonableness", which is also referred to by the appellant's other description, "manifest unreasonableness". The reference to Wednesbury unreasonableness is a reference to the judgment of Lord Greene MR in the English Court of Appeal in Associated Provincial Picture Houses Limited v The Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223. The test promulgated in that case, as restated in ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 576), is whether a purported exercise of administrative power "is so unreasonable that no reasonable person could have so exercised the power". I will assume that such a purported exercise of power is no exercise of the power because it involves jurisdictional error. The appellant relies upon this ground, which undoubtedly raises a question of law, to challenge the two ultimate findings of fact made by the Tribunal. They are: 1. that the appellant could safely relocate within India to a place where there would be no well-founded fear of persecution; and 2. that it was reasonable in all the circumstances to expect the appellant to do so.


case_text: 29 March 2006 the Australian Securities and Investments Commission (ASIC) filed an application in the Court seeking orders under s 1323 of the Corporations Act 2001 (Cth) against companies who were members of, or associated with, the Westpoint Group. Orders were also sought against officers and former officers of those companies. On 20 April 2006 receivers were appointed to the property of each of the defendants save for the seventh defendant, Bowesco Pty Ltd (Bowesco), which already had a private receivership in place. In the case of Bowesco freezing orders were made in relation to its property: Australian Securities & Investments Commission; In the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. It is not necessary now to recite the matters which led to the making of those orders. They are set out in the reasons for judgment. Nor is it necessary to recite the convoluted history of the interlocutory processes associated with these proceedings, which are in themselves interlocutory in substance, albeit not in form. For the most part that history appears from a series of judgments delivered since 20 April 2006. On 7 August 2006 ex parte orders were made joining Rold Corporation Pty Ltd (Rold) as the eleventh defendant. Interim asset preservation orders were made in relation to the property of Rold and remain in place until today.


case_text: a reading of s 1323 demonstrates, it does not provide for a general freezing order of the kind sought by ASIC as its primary relief. Even the interim orders for which s 1323(3) provides are limited to orders of the kind applied for under subs (1). The absence of power under s 1323 to make mareva type orders against "the relevant person" in respect of property held by that person was noted by Finkelstein J in Australian Securities and Investments Commission v Wiggins (1998) 90 FCR 314 at 319. That is not to say that a more general mareva type order may not be made on an interlocutory basis pending the determination of a substantive application under s 1323. Such an order, as an interlocutory order, would be authorised by s 23. Finkelstein J was not in doubt that he had the power to make an order of the kind sought by ASIC "but it would not be an order in pursuance of the powers conferred by s 1323" (at 320). Counsel for ASIC acknowledged the absence of power, under s 1323, to grant a mareva type order in relation to the assets of a company or individual. He relied upon s 23 of the Federal Court Act as the primary source of power for the orders which ASIC seeks. In my opinion, however, this is not an appropriate application of s 23. It is not open to ASIC to file an application for freezing orders in proceedings under s 1323 then effectively ignore s 1323 and say it is relying upon s 23 of the Federal Court Act. The question about the way in which s 23 could be invoked in an application under s 1323 was raised by the Court in argument. Subsequently, both parties were given time to file written submissions on the point which they have done and which have been considered.


case_text: jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.


case_title: R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595


case_title: R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15


case_title: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457


case_title: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82


case_title: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407


case_title: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372


case_text: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 the question arose whether s 23 would authorise a mareva type order against persons not party to the proceedings in which it was sought. The High Court held, inter alia, that such an order was appropriate where the third party might be subject to some court process whereby, whether following the appointment of a liquidator or otherwise, the third party may be obliged to disgorge property. In their discussion of s 23 , Gaudron, McHugh, Gummow and Callinan JJ made the point that the section does not authorise the court to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of available remedies and that code does not authorise the grant of an injunction (at [33]). They referred in this connection to Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 425-426 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29. Consistent with the approach which appears to have been adopted by the High Court in the s 75(v) cases, and bearing in mind what was said in Cardile [1999] HCA 18 ; 198 CLR 380 , I accept that where, in an application under s 1323, the grounds for the appointment of receivers are made out, then a lesser order restricting or prohibiting dealings with the relevant property may be made instead. While s 1323 sets out the specific orders which may be made on an application brought under it, it does not, in my opinion, provide an exhaustive code of remedies to the extent that the power to appoint receivers excludes the lesser alternative of orders restricting or prohibiting dealings with the subject property. It may be, for example, that the appointment of receivers would be necessary or desirable to protect the interests of a potential claimant against the property of the company or individual to which the receivers are to be appointed. At the same time, such an appointment might inflict significant damage on an ongoing business which is detrimental to that business and perhaps also to third parties. In that event a lesser order freezing or limiting dealings with the subject property could be regarded as an exercise of the power under s 23. Contrary, therefore, to the first submission put by ASIC, the application under which such orders can be made is not to be characterised as one "primarily made pursuant to section 23 of the Federal Court Act ". Section 23 does not confer jurisdiction. It confers powers on the Court to make orders in the exercise of the Court's jurisdiction. The sources of jurisdiction are to be found elsewhere. Jurisdiction under the Corporations Act is conferred on the Federal Court by s 1337B(1) and, for the purposes of this proceeding, defined by s 1323. It is open to the Court under s 1323(1)(h) to appoint receivers with powers defined according to the circumstances of the case. Such receiverships might be characterised as restrictive or light according to the nature of the powers and the range of dealings with the affected property permitted by the order. However it must be recognised that even though a receiver may be appointed with limited powers allowing for ongoing dealings in the ordinary course of business, the fact that a receiver has been appointed may trigger default provisions in security documents or otherwise cause practical difficulties with customers, contractors, suppliers and financiers dealing with an ongoing business.


case_text: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 the question arose whether s 23 would authorise a mareva type order against persons not party to the proceedings in which it was sought. The High Court held, inter alia, that such an order was appropriate where the third party might be subject to some court process whereby, whether following the appointment of a liquidator or otherwise, the third party may be obliged to disgorge property. In their discussion of s 23 , Gaudron, McHugh, Gummow and Callinan JJ made the point that the section does not authorise the court to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of available remedies and that code does not authorise the grant of an injunction (at [33]). They referred in this connection to Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 425-426 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29.


case_title: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1


case_text: appointment of receivers under s 1323(1)(h) is, as von Doussa J said in Beach Petroleum v Johnson (1992) 9 ACSR 404 at 406 "a drastic step not lightly to be taken". In my opinion ASIC has not made out a case that it is either necessary or desirable that receivers be appointed to the property of Rold. The party for whom protection is sought is the liquidator. The liquidator can bring his claim and apply for any necessary interlocutory relief if he considers that the asset which he claims is at risk. He can do so with an appropriate undertaking as to damages which is not offered by ASIC. For final relief under s 1323 no such undertaking is required even though it maybe time limited. In respect of interim relief under s 1323(3), no such undertaking is required see s 1323(4). The primary "risk" which may confront the liquidator appears to be that of payment of a substantial amount of the relevant fund to the Commissioner of Taxation in satisfaction of a liability for capital gains tax. The requirement to make such a payment is not likely to arise for another three months. The history of the relationship between Allan Carey and his brother and their prior dealings gives rise, at worst, to a very small and, in my opinion, much diminished risk, that Norman Carey might influence Allan Carey to deal with Rold assets for his benefit or that of entities associated with him. I do not consider that risk of such a magnitude as to warrant the appointment of receivers under s 1323, nor the making of orders under s 23 of the Federal Court Act . For the preceding reasons the application will be dismissed. I should add that, in my opinion, it is desirable that consideration be given to an amendment to s 1323 to include a power in the Court to make orders restricting or prohibiting dealings with the property of the "relevant person". This would allow more flexibility in the making of such orders than is possible by invoking s 23 in aid of the jurisdiction defined by s 1323. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 8 March 2007 Counsel for the Plaintiff Mr S Owen-Conway QC and Mr N Gvozdin Solicitor for the Plaintiff: Australian Government Solicitor Counsel for the Eleventh Defendant: Mr PP McQuade Solicitor for the Eleventh Defendant: McCullough Robertson Date of Hearing: Dates of Further Written Submissions: 26 February 2007 5 and 6 March 2007 Date of Judgment: 8 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/310.html