case_text: The short point raised in this matter is whether Dromana's failure to comply with a stale statutory demand without more can found Mr Gryst's application to have it wound up in insolvency under Ch 5 Pt 5.4 of the Corporations Act . The provisions of that Part have been the subject of considerable judicial attention most recently by the High Court in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9 ; (2008) 243 ALR 207. To foreshadow what I have to say, central to the scheme of that Part is the device of the statutory demand the failure to comply with which, unless successfully challenged, gives rise both to a basis for winding up a company in insolvency and the s 459C(2)(a) presumption of insolvency. 9 By way of background s 459F and s 459G of the Act provide: 459F(1) If, as at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period. 459F(2) The period for compliance with a statutory demand is: (a) if the company applies in accordance with section 459G for an order setting aside the demand: (i) if, on hearing the application under section 459G, or on an application by the company under this paragraph, the Court makes an order that extends the period for compliance with the demand the period specified in the order, or in the last such order, as the case requires, as the period for such compliance; or (ii) otherwise the period beginning on the day when the demand is served and ending 7 days after the application under section 459G is finally determined or otherwise disposed of; or (b) otherwise 21 days after the demand is served. SECTION 459G COMPANY MAY APPLY 459G(1) A company may apply to the Court for an order setting aside a statutory demand served on the company. 459G(2) An application may only be made within 21 days after the demand is so served. 459G(3) An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company. 10 The two noteworthy aspects of these provisions for present purposes are, first, that the s 459F(2) period for compliance with a statutory demand turns in the first instance on whether or not a company has applied "in accordance with section 459G" to set aside the demand and, secondly, it will only have so applied in accordance with that section if it complies with the dual requirements of filing and service specified in s 459G(3)(a) and (b) within 21 days of the service of the demand. 11 It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant & Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity.


case_outcome: cited

case_text: It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant & Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity.


case_outcome: applied

case_text: It is now well settled that, if a s 459G application and affidavit are not filed and served within the time so specified, the Court has no power to extend the period for the making of such an application: see Aussie Vic Plant Hire at [3]; David Grant & Co Pty Limited (rec apptd) v Westpac Banking Corporation (1995) 184 CLR 265. In the present matter, the statutory demand was served on Dromana on 29 November 2007. The application to set it aside was filed in the Supreme Court of Victoria on 20 December 2007. It was not served on Mr Gryst until 21 December 2007. In consequence, that application was not one made "in accordance with section 459G" of the Act. The emphatic language of s 459G(3) admits of no other conclusion: see Pinn v Barroleg Pty Ltd (1997) 138 FLR 417; Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401 ; Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122 at [1]. While counsel for the plaintiff has sought to avoid this conclusion by recourse to "purposive legislation", the Parliament, in my view, has spoken on this matter with unmistakeable clarity. 13 The date the s 459P winding up application was made was 10 June 2008. For the purposes of s 459C(2)(a) the presumption of insolvency could only arise if in the period three months prior to that date, i.e. on or after 10 March 2008, Dromana failed to comply with a statutory demand. Dromana did not fail to comply with the statutory demand during that period. In consequence, Mr Gryst cannot rely on the presumption of insolvency in prosecuting his winding up application as s 459C(2)(a) has not been enlivened in the circumstances: see Pinn v Barroleg Pty Ltd and Deputy Commissioner of Taxation v Tixana Pty Ltd with which decisions I respectfully agree.


case_title: Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401


case_title: Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd (2008) 26 ACLC 122


case_text: I have already indicated that the plaintiff has not sought to rely upon any other basis for winding up Dromana than its failure to comply with the statutory demand. Shorn of the presumption of insolvency, that application has been so narrowly drawn as to be doomed to failure: see Ford's Principles of Corporations Law at [27.050]. While on a s 459P application the Court may order that an insolvent company be wound up in insolvency: see s 459A; there is no evidentiary basis before me that could suggest insolvency, other than the non-compliance itself. When viewed in the context of the affidavit evidence that has been filed in support of, and in opposition to, the present application, the position is no different. A serious dispute exists between the parties. But Dromana's insolvency is not suggested: cf Re Turf Enterprises Pty Ltd [1975] Qd R 266. Perhaps it was for this reason that counsel for Mr Gryst apparently accepted that the originating process as it stands could not succeed without the aid of the presumption. I am thus in the position of being satisfied in the circumstances that Mr Gryst has no reasonable prospect of successfully prosecuting his s 459P application. 15 I will in consequence order under s 31A(2) of the Federal Court of Australia Act that the originating process be dismissed. I have directed the parties to file and serve submissions relating to costs.


case_text: I would add that I have indicated that I would not at this late stage grant leave to amend the originating process to add other possible bases for winding up Dromana in insolvency: cf s 459B of the Corporations Act . Undoubtedly a serious dispute exists between the parties and on substantial grounds, as to Mr Gryst's claims and Dromana's offsetting claim against him. I seriously doubt whether proceedings for winding up in insolvency is an appropriate vehicle in which to resolve what appears to be no more than a commercial dispute: cf Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) (2004) 185 FLR 130 at [72] ff. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 6 August 2008 Counsel for the Plaintiff: Mr M Hoile Counsel for the Defendant: Mr N Lucarelli QC with Mr C Salpic Solicitor for the Defendant: Wilmoth Field Warne Date of Hearing: 5 August 2008 Date of Judgment: 6 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1148.html


case_text: The jurisdiction of the court to give directions of the type sought by the Administrators is found in s 447D(1) of the Act: "The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers." That power is not unlimited. For example, it does not extend to giving an administrator a direction as to a decision which is wholly business or commercial in nature. In Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90 ; (2002) 115 FCR 409 I said at 428: "There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator's or administrator's unease. There must be an issue calling for the exercise of legal judgment." Shortly thereafter in Re Ansett Australia Ltd and Mentha (2002) 41 ACSR 605, I said at 616: "However, where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator."


case_text: The jurisdiction of the court to give directions of the type sought by the Administrators is found in s 447D(1) of the Act: "The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers." That power is not unlimited. For example, it does not extend to giving an administrator a direction as to a decision which is wholly business or commercial in nature. In Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90 ; (2002) 115 FCR 409 I said at 428: "There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator's or administrator's unease. There must be an issue calling for the exercise of legal judgment." Shortly thereafter in Re Ansett Australia Ltd and Mentha (2002) 41 ACSR 605, I said at 616: "However, where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator." 75 The power of the Court to give directions to administrators is also enhanced by the operation of s 447A of the Act as it enables the Court to order that the directions power in s 447D operate in relation to a particular company in a particular way: see Re Ansett Australia Ltd and Mentha (supra) at 615-616. However that broad power and the objective underpinning it: "is limited by the overriding requirement that any orders made and directions given must be designed to achieve the objects of Pt 5.3A as expressed in s 435A of the Act." ( Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 at 15). Those objects include bringing about a better return for the particular company's creditors than would result from a liquidation.


case_text: The power of the Court to give directions to administrators is also enhanced by the operation of s 447A of the Act as it enables the Court to order that the directions power in s 447D operate in relation to a particular company in a particular way: see Re Ansett Australia Ltd and Mentha (supra) at 615-616. However that broad power and the objective underpinning it: "is limited by the overriding requirement that any orders made and directions given must be designed to achieve the objects of Pt 5.3A as expressed in s 435A of the Act." ( Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1 at 15). Those objects include bringing about a better return for the particular company's creditors than would result from a liquidation.


case_outcome: considered

case_text: The genesis of this provision was s 57 of the Trustee Act 1925 (UK) which is in substantially the same terms. In Riddle v Riddle [1952] HCA 12 ; (1952) 85 CLR 202 the High Court considered the scope of the power of s 81 of the Trustee Act 1925 (NSW) which is in similar terms to the Victorian Act. The majority of the High Court construed s 81 in very wide terms. Dixon J said at 214: "Section 81 is a provision conferring very large and important powers upon the Court which depend upon the Court's opinion of what is expedient, a criterion of the widest and most flexible kind. ... I do not think that the powers given by s. 81 were intended to be restricted by any implications." Williams J said at 220: "The section is couched in the widest possible terms. The sole question is whether it is expedient in the interest of the trust property as a whole that such an order should be made." and at 222: "The one and only test is the expediency of the act or thing which the Court is asked to authorise a trustee to do or abstain from doing. The Court has only to be of the opinion that the trust property as a whole will in fact benefit from the making of the order." ( Riddle v Riddle (supra) was subsequently applied in Re Baker [1961] VR 641 and Arakella v Paton [2004] NSWSC 13 ; (2004) 60 NSWLR 334).


case_text: In Re Royal Society's Charitable Trusts [1956] Ch 87, Vaisey J was asked by the Royal Society to permit it, inter alia , to consolidate various different trust funds of which it was trustee for investment and accounting purposes. Vaisey J held that the application did not come within s 57 of the Trustee Act 1925 (UK) (the equivalent section to s 63 of the Trustee Act 1958 (Vic)) or alternatively under what he called "the rather ill-defined scope of the court's general jurisdiction". However, he held that the Court had power under its special jurisdiction relating to charities to consider the applications. 86 I doubt whether s 63 provides a basis for the directions sought by the Administrators as they are seeking directions as to how they may exercise their power as trustees, rather than seeking a direction for a particular transaction, even though a particular transaction will result from the exercise of their power, if approved or directed by the Court. Notwithstanding the breadth of the definition of "expedient", I do not consider that it is expedient, in the interests of the trust properties or the beneficiaries under the trusts that the Administrators be given the power to put a resolution and vote in favour of it adversely to the interests of the beneficiaries. 87 I turn to deal with the issue of the pooling of assets and liabilities of companies. Pooling of assets and liabilities of companies in administration or liquidation as a concept is well known although it does not appear that pooling has been approved in circumstances where a number of the creditors of one or more of the companies have been disadvantaged by the pooling proposal and the creditors have not unanimously consented to, or approved of, the pooling proposal.


case_text: In Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209, Young J gave effect to pooling resolutions passed by creditors of two companies at s 439A meetings by recourse to s 447A of the Corporations Law . Young J noted at 213, the rule that had grown up in the bankruptcy jurisdiction that: "where estates were so inextricably blended as to render it impracticable to keep them distinct, the court would order them to be administered in consolidation." Young J found support for this principle of consolidation in corporate insolvency in Anmi Pty Ltd v Williams [1981] 2 NSWLR 138 which involved an application by a liquidator in the course of the winding-up of three companies which carried on business in partnership. Powell J at 164 referred to the exception to the rule in bankruptcy that separate creditors could not have access to joint assets, namely that separate creditors could have access to a pool comprising joint and separate assets. Powell J relied on the following statement in Archbold on Bankruptcy , 11 th ed, p 598 as a formulation of the exception: "'Where (the joint and separate) estates are so blended together as to render it impracticable to keep them separate, they may be consolidated; but not where the accounts can be kept distinct, and a single creditor objects (In re Buliver; Ex p Sheppard (1833) Mon & B 415; 3 Dea & C 190); and even if the creditors at a general meeting agree to consolidate the estates, they will not be consolidated without it is ascertained that the proposed consolidation will be for the benefit of creditors generally (In re Higton and Breever; Ex p Strutt (1821) 1 G1 & J29)': Archbold on Bankruptcy, 11 th ed, p 598.' Powell J continued: "To this must be added, as a gloss, that the mere fact that proofs may be difficult of investigation or that difficult questions may arise as to whether creditors are joint or separate creditors seems not to be sufficient to bring a case within the exception: Re Kriegel; Waring & Co; Ex parte Trotman (1893) 68 LT 588; 10 Morr 99; Re Sydney Barker & Co (1914) 21 Mans 238". 89 In Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (supra) all the creditors except the Deputy Commissioner of Taxation attended the meetings and approved of the resolution. However the order made by Young J approving of the pooling resolutions was made expressly subject to the opportunity given to the Deputy Commissioner of Taxation to apply to the Court to have the order discharged. Young J set out a number of principles which he considered applied which included the following (at 216): "It would be possible for the court to advise a liquidator in a court winding up that he should consolidate debts, but it would be unlikely that the court would do so unless every creditor agreed or a regime was put in place for creditors to object." 90 In Re Charter Travel Co Ltd (1997) 25 ACSR 337, Young J approved of the calling of a joint meeting of creditors of two companies to consider a pooling proposal for two companies in liquidation in circumstances where it was virtually impossible to define which creditor belong to which company. Young J said at 338: "As I indicated in my judgment in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79, administration of two companies in insolvency conjointly is something that can occur only in exceptional cases. As I said at 85, this normally means a scheme of arrangement, but if no creditor objects and it is impracticable to keep the assets and liabilities of different companies separate, and the consolidation is for the benefit of creditors generally, then the court might advise the liquidators concerned that they would be justified in consolidating the administration." One of the factors which persuaded Young J that the case fell within the exceptional circumstances was that no creditor could be disadvantaged by the proposal. 100 This review of the recent authorities on pooling leads me to the conclusion that there is no authority or support for the view that a Court will approve a pooling proposal in circumstances where a number of the creditors of one or more of the companies will be significantly disadvantaged. These authorities also proceed on the basis that it is not sufficient for an order for pooling that the administration or liquidation is complex or that the identity of creditors is difficult to determine. So much was stated by Powell J in Anmi Pty Ltd v Williams (supra) at 164 (par [88] above). The observation of Powell J was cited with approval by Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (supra) at 213 and by Barrett J in Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (in liq) (supra) at 17.


case_text: In Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209, Young J gave effect to pooling resolutions passed by creditors of two companies at s 439A meetings by recourse to s 447A of the Corporations Law . Young J noted at 213, the rule that had grown up in the bankruptcy jurisdiction that: "where estates were so inextricably blended as to render it impracticable to keep them distinct, the court would order them to be administered in consolidation." Young J found support for this principle of consolidation in corporate insolvency in Anmi Pty Ltd v Williams [1981] 2 NSWLR 138 which involved an application by a liquidator in the course of the winding-up of three companies which carried on business in partnership. Powell J at 164 referred to the exception to the rule in bankruptcy that separate creditors could not have access to joint assets, namely that separate creditors could have access to a pool comprising joint and separate assets. Powell J relied on the following statement in Archbold on Bankruptcy , 11 th ed, p 598 as a formulation of the exception: "'Where (the joint and separate) estates are so blended together as to render it impracticable to keep them separate, they may be consolidated; but not where the accounts can be kept distinct, and a single creditor objects (In re Buliver; Ex p Sheppard (1833) Mon & B 415; 3 Dea & C 190); and even if the creditors at a general meeting agree to consolidate the estates, they will not be consolidated without it is ascertained that the proposed consolidation will be for the benefit of creditors generally (In re Higton and Breever; Ex p Strutt (1821) 1 G1 & J29)': Archbold on Bankruptcy, 11 th ed, p 598.' Powell J continued: "To this must be added, as a gloss, that the mere fact that proofs may be difficult of investigation or that difficult questions may arise as to whether creditors are joint or separate creditors seems not to be sufficient to bring a case within the exception: Re Kriegel; Waring & Co; Ex parte Trotman (1893) 68 LT 588; 10 Morr 99; Re Sydney Barker & Co (1914) 21 Mans 238". 100 This review of the recent authorities on pooling leads me to the conclusion that there is no authority or support for the view that a Court will approve a pooling proposal in circumstances where a number of the creditors of one or more of the companies will be significantly disadvantaged. These authorities also proceed on the basis that it is not sufficient for an order for pooling that the administration or liquidation is complex or that the identity of creditors is difficult to determine. So much was stated by Powell J in Anmi Pty Ltd v Williams (supra) at 164 (par [88] above). The observation of Powell J was cited with approval by Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (supra) at 213 and by Barrett J in Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (in liq) (supra) at 17.


case_text: In Re Charter Travel Co Ltd (1997) 25 ACSR 337, Young J approved of the calling of a joint meeting of creditors of two companies to consider a pooling proposal for two companies in liquidation in circumstances where it was virtually impossible to define which creditor belong to which company. Young J said at 338: "As I indicated in my judgment in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79, administration of two companies in insolvency conjointly is something that can occur only in exceptional cases. As I said at 85, this normally means a scheme of arrangement, but if no creditor objects and it is impracticable to keep the assets and liabilities of different companies separate, and the consolidation is for the benefit of creditors generally, then the court might advise the liquidators concerned that they would be justified in consolidating the administration." One of the factors which persuaded Young J that the case fell within the exceptional circumstances was that no creditor could be disadvantaged by the proposal. 114 I have not lost sight of the fact that the pooling proposal by the Administrators is sensible and advantageous to most of the creditors from a practical point of view. I am mindful of the observations of Young J in Re Charter Travel Co Ltd (supra) at 338: "So long as there is a power under the Corporations Law or otherwise available to the court, the court is anxious to see that liquidations are conducted with commercial efficiency and will not allow any technical rules to frustrate that attempt". (This passage was referred to with approval by Santow J in Re Switch Telecommunications Pty Ltd (in liq); Ex parte Sherman (supra) at 184).


case_text: In Re Switch Telecommunications Pty Ltd (in liq); Ex parte Sherman [2000] NSWSC 794 ; (2000) 35 ACSR 172, Santow J approved of a pooling proposal for two companies in liquidation pursuant to ss 510 and 1322(4) of the Corporations Law . A combined meeting of creditors of both companies had been unanimously in favour of the proposal. It does not appear from the judgment whether any creditors were disadvantaged by the proposal. 114 I have not lost sight of the fact that the pooling proposal by the Administrators is sensible and advantageous to most of the creditors from a practical point of view. I am mindful of the observations of Young J in Re Charter Travel Co Ltd (supra) at 338: "So long as there is a power under the Corporations Law or otherwise available to the court, the court is anxious to see that liquidations are conducted with commercial efficiency and will not allow any technical rules to frustrate that attempt". (This passage was referred to with approval by Santow J in Re Switch Telecommunications Pty Ltd (in liq); Ex parte Sherman (supra) at 184).


case_text: In Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (in liq) (2004) 50 ACSR 15, Barrett J approved a pooling proposal by recourse to ss 447A of the Act for two companies in liquidation over the objection of one creditor. The dissenting creditor objected to the pooling proposal at a meeting of creditors held pursuant to s 439A of the Act, and also availed itself of the opportunity to have its grounds of dissent placed before the court. Barrett J was satisfied that the circumstances in which the pooling proposal was put before the creditors of the relevant company and voted upon justified a conclusion that the majority vote both by number and value ought to be recognised as a properly informed expression of the will of the creditors reflective of the interests of the general body of creditors. 100 This review of the recent authorities on pooling leads me to the conclusion that there is no authority or support for the view that a Court will approve a pooling proposal in circumstances where a number of the creditors of one or more of the companies will be significantly disadvantaged. These authorities also proceed on the basis that it is not sufficient for an order for pooling that the administration or liquidation is complex or that the identity of creditors is difficult to determine. So much was stated by Powell J in Anmi Pty Ltd v Williams (supra) at 164 (par [88] above). The observation of Powell J was cited with approval by Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (supra) at 213 and by Barrett J in Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (in liq) (supra) at 17.


case_title: Mentha v GE Capital (1997) 27 ACSR 696

case_text: In Mentha v GE Capital (1997) 27 ACSR 696, Finkelstein J accepted that in appropriate circumstances pooling of assets and liabilities of companies in insolvency might be "both just and equitable if not essential". His Honour said at 702: "In my opinion the power to enter into a deed of company arrangement under Pt 5.3A is sufficiently broad to permit an arrangement binding on two or more insolvent companies pursuant to which their respective assets and creditors will be consolidated. There is no justification for a construction of this part of the Corporations Law that would lead to the conclusion that arrangements made pursuant to Pt 5.3A must be more narrowly confined than arrangements made under s 411." However, Finkelstein J was not required to address this issue in circumstances where it was apparent that any creditors would be disadvantaged by the pooling proposal.


case_text: In Humphris, Re ACN 004 987 866 (2003) 21 ACLC 1474, I approved of a pooling proposal where the creditors present at the meetings unanimously approved of the proposal to enter into deeds of company arrangements which contained provisions to pool the assets and liabilities of each company. In those particular circumstances, it was inevitable that if pooling did not occur, all creditors would be worse off. This was because the costs which would be incurred if there was no pooling would erode the balance available for distribution to creditors.


case_text: In Re Tayeh; the Black Stump Enterprises Pty Ltd (2005) 53 ACSR 684, an application for approval of a pooling proposal in a creditors' voluntary liquidation scenario was dismissed. What weighed heavily in the reasoning of Barrett J was the fact that the creditors as a body had not been given a clear opportunity to make a positive expression of their views. Barrett J said at 692: "As I have said, Charter Travel was a case in which what was effectively a clearance for the liquidators to implement a specific pooling arrangement if 'creditors unanimously approved the proposal' was given by Young J in a context where his Honour made an order that the liquidators would be justified in convening a combined meeting of the creditors of two companies. There was thus to be a forum for the positive statement of opinions and wishes actively sought, no doubt by way of proposed resolution in relation to a specifically identified proposal. The lack of objection contemplated there (as well as in Soluble Solution which involved a s 447A application) was in a context quite different from the context involved in the present case. Here, there has been no attempt to engage any of the statutory provisions under which rights in a winding up may be varied." 96 The Administrators submitted that pooling was justified on the basis of a number of propositions to be extracted from United States of America authorities. They relied upon what they called: • the reliance test as a single economic unit; • the entanglement test, that is to say the interrelationship of the companies in the group is so hopelessly inter-related that to disentangle it would be both time and cost prohibitive; and • the balancing test, that is to say the benefits of the consolidation outweigh the harm it would cause creditors if there was no consolidation.


case_text: The principles applicable to what is called in the United States of America "substantive consolidation", which is akin to "pooling", were recently re-stated by the United States Court of Appeals for the Third Circuit in In Re Owens Corning 419 F.3d 195 (3 rd Cir. 2005). The Court analysed In re Augie/Restivo 860 F.2d 515 (2 nd Cir. 1988) where the Court found that there were two rationales, to be extracted from previous decisions, for substantive consolidation. These rationales were: (a) where the creditors dealt with the various entities in the group as a single economic unit and did not rely on their separate identity in extending credit; (b) where the affairs of the companies in the group were so entangled that consolidation would benefit all creditors. The Court noted that there was nearly unanimous consensus in the substantial body of case law on substantive consolidation that it was a remedy to be used "sparingly".


case_text: The principles applicable to what is called in the United States of America "substantive consolidation", which is akin to "pooling", were recently re-stated by the United States Court of Appeals for the Third Circuit in In Re Owens Corning 419 F.3d 195 (3 rd Cir. 2005). The Court analysed In re Augie/Restivo 860 F.2d 515 (2 nd Cir. 1988) where the Court found that there were two rationales, to be extracted from previous decisions, for substantive consolidation. These rationales were: (a) where the creditors dealt with the various entities in the group as a single economic unit and did not rely on their separate identity in extending credit; (b) where the affairs of the companies in the group were so entangled that consolidation would benefit all creditors. The Court noted that there was nearly unanimous consensus in the substantial body of case law on substantive consolidation that it was a remedy to be used "sparingly". 98 Having analysed the competing lines of authority on substantive consolidation, the Court's conclusion was to follow the In re Augie/Restivo (supra) approach. It said, at 211: "In our Court what must be proven (absent consent) concerning the entities for whom substantive consolidation is sought is that (i) prepetition they disregarded separateness so significantly their creditors relied on the breakdown of entity borders and treated them as one legal entity, or (ii) postpetition their assets and liabilities are so scrambled that separating them is prohibitive and hurts all creditors." The Court rejected the proposition that mere benefit to the administration of the various companies was sufficient to warrant substantive consolidation. The Court also rejected the proposition that the commingling of assets justified consolidation when the affairs of the companies were so entangled that consolidation would be beneficial. The Court set out the following principle at 214: "...commingling justifies consolidation only when separately accounting for the assets and liabilities of the distinct entities will reduce the recovery of every creditor that is, when every creditor will benefit from the consolidation. Moreover, the benefit to creditors should be from cost savings that make assets available rather than from the shifting of assets to benefit one group of creditors at the expense of another. Mere benefits to some creditors, or administrative benefit to the Court, falls far short." The Court emphasised that the theoretical justification for what it called "hopeless commingling" consolidation was that no creditor's rights would be impaired. 99 I consider these principles appropriate to apply within the context of the proper approach to pooling in the Australian jurisdiction. They are not inconsistent with the Australian decisions on pooling to which I have referred and I consider that they complement the principles which underlie those decisions.


case_text: No guidelines are provided by the statute or the regulations as to the manner in which the casting vote may be exercised. The cases support the proposition that a person in the position of an administrator has a discretion as to how to exercise a casting vote at a meeting of creditors but that such a vote should be exercised honestly and in the best interests of the body of creditors as a whole: Re Coaleen Pty Ltd (Admin. Appointed ) [2000] 1 Qd R 245; Re Martco Engineering Pty Ltd (1999) 32 ACSR 487; Kirwan v Cresvale Far East Ltd (2002) 44 ACSR 21.


case_title: Re Martco Engineering Pty Ltd (1999) 32 ACSR 487


case_title: Kirwan v Cresvale Far East Ltd (2002) 44 ACSR 21


case_text: there exists power to further extend the convening period is, in my opinion and clear: see Re Henry Walker Eltin Group Limited (Administrators Appointed) [2005] FCA 984. There is also, in my opinion, clear authority further to adjourn the winding up application: see Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 , and; Deputy Commissioner of Taxation v First Netcom Pty Ltd (2001) 19 ACLC 324.


case_title: Deputy Commissioner of Taxation v First Netcom Pty Ltd (2001) 19 ACLC 324


case_title: Re Henry Walker Eltin Group Limited (Administrators Appointed) [2005] FCA 984


case_outcome: distinguished

case_text: Counsel for the first respondent raised the fact that the Tribunal's reference to the appellant attending a state-sanctioned church may raise similar issues to those which arose in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. However, the federal magistrate distinguished this case on two bases. Firstly, here the Tribunal made a factual finding that the appellant had no deep theological convictions and this finding had no discernable error. There was no equivalent finding in Appellant S395/2002 216 CLR 473. Consequently, the finding based on country information that a person without a deep faith can worship at a state-sanctioned church was open to the Tribunal. Secondly, the Tribunal did not express as a requirement that the appellant had to modify her behaviour but rather was observing it was an option for the appellant. 15 The question then arises as to whether or not the Tribunal committed an error in respect of the Appellant S395/2002 216 CLR 473 issue. In the present case the Tribunal's observations were premised on its findings of fact concerning the scope and depth of the appellant's religious commitment and activities in China and Australia. The Tribunal, after finding that the claims of the appellant were not to be believed, stated: The Tribunal notes that the applicant has the option of attending a state-sanctioned church in Fujian without any adverse consequences. As the Tribunal has not formed the view that the applicant has any deep theological convictions that would impel her to reject the state-sanctioned church, this seems a reasonable solution. The applicant herself has never attended a state-sanctioned church and has no basis on which to say that it would not meet her spiritual needs (not that she claimed this), other than having been told by Mrs Wei that such churches are "very bad". The Tribunal notes that the bibles in use by the state-sanctioned churches "differ very little from other versions available outside China and the Bible text remains sound and intact. It is normal for Patriotic churches to display crosses, crucifixes and portraits of Jesus" (UK Home Office, Country Assessment: China, April 2006 para 6.74). 16 In my view this seems to be a mere observation or note after dealing with the essential elements of the application. 17 The Tribunal asked itself the correct question did the appellant have a well founded fear of persecution on the grounds contended by her? The Tribunal clearly made an inquiry which was directed to the individual appellant and was fact-specific. The Tribunal did not ask (as in Appellant S395/2002 216 CLR 473) whether it was possible for the appellant to live in China in such a way as to avoid adverse consequences. The Tribunal did not ask whether the appellant could avoid persecution. It did not set out any requirement that the appellant modify her behaviour in order to practice her Christianity in China. In my view, an accurate assessment of the factual findings made and reasoning recorded in the Tribunal's reasons for decision discloses no error in this regard. 18 Finally, in submissions before me today reliance was placed upon s 425 of the Act. It seems to me in the circumstances and on the material before the Tribunal and the Federal Magistrates Court that the appellant had ample opportunity to give evidence and present arguments relating to the issues that were before the Tribunal. 19 Another issue was raised today of there being difficulties with the interpreter before the Tribunal. This matter has not been raised before. No specific instances were provided to demonstrate the difficulties. No evidence or material is before me which would enable me to conclude that the appellant was not given a fair hearing or was not able to put her submissions to the Tribunal or be given the opportunity to be heard on the basis of difficulties with the interpreter. I find no basis upon which this Court could intervene upholding this new ground raised today, there being no factual foundation for it.


case_text: With respect to the claim of actual bias, I can find no evidence to support such a claim. Nothing before me demonstrates a "closed mind" on the part of the Tribunal: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] , referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. The appellant has not identified any particular material or findings in support of any claim of bias, actual or apprehended, and I cannot be satisfied that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344; and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14].


case_title: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507


case_title: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264


case_title: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90


case_text: In my opinion, no such prima facie case has been established. The Agreement is not capable of any reasonable construction which would give Grande Group any power of control of the composition of the Board or any power to cast or control the casting of votes at a general meeting of Akai Australia. Any suggestion that this could be achieved through Akai Electric is speculation not supported by any reasonable evidentiary base. I do not regard the decision of Santow J in Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 at 279 284 as providing any support to Akai in that respect. The case against Grande Holdings cannot rise above that against Grande Group. This affects the whole of paragraph 2 of the Details of Claim in the Application. 28 It is alleged in Paragraph 3 of the Details of Claim that each of Grande Group and Grande Holdings are vicariously liable for the conduct of Ho and Binney as employers and principals. Paragraph 72 of the Statement of Claim carries that allegation no further in substance. There have been no detailed submissions addressed to the point and no authorities cited in support of it. As submitted on behalf of the respondents, vicarious liability is a principle of the law of torts and its application in these circumstances is far from self explanatory. In the absence of an explanation, no prima facie case is established. 29 There is now no challenge to the paragraph 4 of the Details of Claim, being the claim against Grande Group arising out of the Agreement.


case_outcome: followed

case_text: As against the Fifth, Sixth and Seventh Respondents as directors: 5.1 Declaration that each of them have contravened section 588G of the Corporations Law and/or Corporations Act ; 5.2 An Order pursuant to section 588J of the Corporations Law and/or Corporations Act requiring each of them to compensate the First Applicant for the loss and damage suffered by it as a consequence of such contravention; 5.3 Declarations that each of them have contravened Sections 180 , 181 and 182 of the Corporations Law and/or Corporations Act ; 5.4 Orders pursuant to Section 1317H of the Corporations Law and/or Corporations Act requiring them to compensate the First Applicant in respect of damage resulting from such contraventions; 5.5 Declarations that each of them have breached their fiduciary duties to the First Applicant; 5.6 Orders requiring each of them to pay equitable compensation to the First Applicant for the damage suffered by it as a consequence of such breaches; 5.7 Interest; 5.8 Costs.' 3 The fifth, sixth and seventh respondents have not been served. The first and third respondents challenge service generally, whereas the second respondent objects to service in relation to paragraphs 2 and 3 of the Details of Claim. The second respondent does not now challenge service in relation to paragraphs 1 or 4 of the Details of Claim. The fourth respondent does not seek relief on the motion. 4 This is a review of the original decision to grant leave by way of rehearing ( Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 at [53] ). Evidence has been tendered which was not before the judge who made the original order and I have had the benefit of detailed submissions from both sides. The substance of the motion requires the application of O 8 r 2 and, in particular, O 8 r 2(2). The applicants on the motion do not raise any issue as to compliance with to O 8 r 2(2)(a) or (b). It is submitted that the applicants in the proceeding (together called Akai) do not have a prima facie case for the relief sought within the meaning of O 8 r (2)(c). The burden of establishing a prima facie case lies upon Akai who obtained leave to serve out of the jurisdiction. 5 Akai initially took a preliminary point based upon lack of evidence which was overtaken by events, but which, in any case, did not take account of the nature of the proceeding on the motion. 6 It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.' 14 Counsel for Akai submits that there is a body of evidence which points to the inference that Messrs Binney, Yuen and Lam were each, in fact, acting upon instructions given to them by Ho on behalf of Grande Holdings. There is a sound factual basis for the submissions by counsel for Akai bearing in mind the interlocutory nature of this proceeding and the admissibility of hearsay evidence ( Bray v F Hoffman-La Roche Ltd (above) at [58]). 15 Binney made it clear at his public examination that he acted upon the instructions of, and reported to, Ho in connection with the affairs of Akai Australia. There is documentary evidence of the direct involvement of Ho in decision making in relation to the Silver Phoenix transaction. There is also documentary evidence that Ho was effectively in charge of negotiations concerning the refinancing and restructuring of the whole Akai group, including Akai Australia. Paragraph 26 of the Statement of Claim particularises a number of actions of officers connected with the Grande companies other than Binney related to the giving of instructions to officers of Akai Australia. Although there appears to be an error in describing Mr Tony Lam as a director of Grande Holdings, there is material in the evidence to support the contention that each of the parties particularised (including Mr Tony Lam) was acting as an officer of Grande Holdings or upon the instructions of Grande Holdings in relation to the affairs of Akai Australia. In particular, this applies to Yuen. 16 Nonetheless, the point remains that the Agreement underpinned the dealings and can be seen as the legal foundation for giving and receiving the instructions. Counsel for Ho and Grande Holdings makes the point that the involvement of Ho and Grande Holdings in negotiations concerning the overall restructure of the worldwide Akai Group, including the relevance of that restructure to Australia, is a different subject from, and should not be confused with, the day to day administration of the Agreement which it is submitted formed the basis of the dealings with Akai Australia. 30 A prima facie case of one sort or another has been found against each of Ho, Grande Group and Grande Holdings. It is submitted for Akai that this is sufficient to lead to dismissal of the motion as a whole in view of the decision of the Full Court in Bray v F Hoffman-La Roche Ltd (above) . Counsel for the Grande parties accepts that I am bound by that decision, although the formal submission was made that the dissenting judgment of Finkelstein J is to be preferred. Carr J said (at [47] [55]): 'Accordingly, once the court is satisfied that it has jurisdiction in the proceeding and that one or other of the various cases referred to in O 8 r 1 apply, then, in my opinion, the party seeking leave or resisting a revocation of such leave, need only show a prima facie case for the relief sought in the proceeding. ... As the primary judge noted at [11] of his reasons, the applicant's proceeding is founded on breaches in Australia of s 45 of the TPA (in summary, giving effect to the Cartel Arrangement by making agreements containing price-fixing and market-sharing provisions and giving effect to those provisions) and is brought in respect of, and for the recovery of, damage suffered by the group members in the Commonwealth. Senior counsel for the Aventis Foreign Respondents submitted that the causes of action against those respondents were disparate. One set of claims was based on a series of communications between them and the Australian Aventis Respondents. The other was put on the basis that the Aventis Foreign Respondents were at all times active in Australia. But there was no submission that the applicant was seeking to litigate matters which had no real connection with Australia, or that the applicant had joined a trifling claim having merit and falling within r 1, with other claims without substance which did not fall within r 1. ... In my view, the primary judge did not err in holding that it was sufficient, for the purposes of O 8 r 2(2)(c), to be satisfied that the applicant had a prima face case for relief on the basis of any of the causes of action relied upon by her against each of the Foreign Respondents.' Branson J said (at [176] [191]): 'It was argued on the appeal that before the court can have the satisfaction required by O 8 r 2(2)(c), it is necessary for the court to be satisfied that the party seeking leave has a prima facie case for the relief sought pursuant to each of the causes of action relied upon. The alternative possibility is that it is sufficient that a prima facie case for the relief sought is made out on one of the causes of action relied upon. ... In my view, at least where the relevant originating process is an application, the inference is strong that the expression "the relief sought by the party in the proceeding" in O 8 r 2(2)(c) is intended to carry the same meaning as the expression "the relief claimed by the applicant" in O 4 r 3(1)(a). As is mentioned above, that meaning is the remedy sought by the applicant in the proceeding rather than the relief sought pursuant to each cause of action to be relied upon. ... It is significant, in my view, that O 8 r 2(2) does not give rise to an entitlement to serve originating process outside the Commonwealth; it gives the court a discretion to give leave which may only be exercised if the court is satisfied as to the matters identified in the subrule. The court might be satisfied of those matters but nonetheless decide, in the exercise of its discretion, to refuse leave to serve outside of the Commonwealth. Alternatively, the court could give leave to serve outside the Commonwealth but make such leave subject to terms and conditions which the court considered appropriate. I am not presently able to think of any reason why a condition imposed on the leave to serve could not, in an appropriate case, limit the causes of action which the applicant was entitled to plead in the statement of claim or rely upon in the affidavit should a statement of claim not be appropriate (O 4 r 6). ... I conclude that it is not necessary, before the court can have the satisfaction required by O 8 r 2(2)(c), that the court be satisfied that the party seeking leave to serve originating process outside the Commonwealth has a prima facie case for the relief sought pursuant to each of the causes of action relied upon. In my view, O 8 r 2(2)(c) requires the court to be satisfied that the party has a prima facie case for the remedy sought by the applicant in the proceeding. The relief sought by the applicant in this proceeding is identified by para 4 of the second amended application. That relief is declaratory relief pursuant to s 163A of the TPA, damages pursuant to s 82(1) of the TPA, injunctions under s 80(1) and possibly, relief under s 87(1) of the TPA. I agree, for the reasons given by Carr J, that it was open to the primary judge to be satisfied that the applicant has a prima facie case for the relief sought by her in the proceeding within the meaning of O 8 r 2(2)(c) of the Rules.' Finkelstein J, having held that the conditions in r 2 must be satisfied in respect of each cause of action raised in the proceeding, went on to say (at [229]): 'A different construction has been placed on O 8 r 2(2)(c) by the other judges. In their opinion, if an applicant makes out a prima facie case for the relief (that is, the remedy) he seeks the condition will be satisfied, whether or not that relief is based on more than one cause of action. I accept, of course, that this construction of the rule is open, though it is not the construction which I prefer. Moreover, it is a construction which has the potential to bring about some unusual results. Let it be assumed that three plaintiffs each bring an action for two causes, one in contract and the other in tort, and that each cause of action arises out of the same facts. In one case the plaintiff seeks specific performance of the contract and damages for the tort. This plaintiff will be required to establish a prima facie case in respect of each cause of action because each gives rise to different relief. The second plaintiff claims damages for breach of contract and tort and, let it be assumed, when properly assessed the measure of those damages will be the same for each cause. This plaintiff will only be required to establish a prima facie case for one cause of action. The third plaintiff is in the same situation as the second save that the measure of damages for each cause is different. It is not clear what this plaintiff must prove to satisfy the condition. He may be required to establish a prima facie case for each cause of action because the measure of damages is different. On the other hand, the answer may depend upon the manner in which this plaintiff has formulated his relief; for example, he may only seek "Damages" or he may describe the nature of those damages in a way which indicates they are different. Whatever be the position, I see no reason in principle why any one of these plaintiffs should be treated differently from the others. On the construction of O 8 r 2(2)(c) which I prefer each will be treated in the same way.' 31 The application of that decision to this proceeding is not crystal clear. That question can be illustrated by considering the position of Ho. The only relief sought against him is in the first paragraph of the Details of Claim. I have held that there is no prima facie case against him in relation to paragraphs 1.1 and 1.2. I have found that there is a prima facie case against him in relation to part of paragraph 1.3. It can be concluded that a case against Ho has been made in relation to the relief identified in paragraph 1.5, namely, orders pursuant to s 1317H of the Act requiring him to compensate the first applicant in respect of damages resulting from such contraventions. When the Statement of Claim is considered (as it should be in view of its incorporation in the Details of Claim) it is clear that those orders relate to the three heads of loss earlier identified, namely, general insolvent trading, the Capetronics transaction and the Silver Phoenix transaction. Indeed, that relief, in substance, is also sought in paragraph 1.2. 32 If, in substance, the one form of monetary compensation is sought by way of relief based upon various causes of action, then the case is on all fours with Bray v F Hoffman-La Roche Ltd (above) . If not, then it seems to me that Bray v F Hoffman-La Roche Ltd (above) should be applied as if the principle related to each separate and independent form of relief. As pointed out by Branson J in Bray v F Hoffman-La Roche Ltd (above), the same practical result can be achieved by imposing terms. 33 I am satisfied that the relief sought in paragraphs 1.2 and 1.5, when understood in the light of the Statement of Claim, is, in substance, the same and can be regarded as the same relief for present purposes. Thus, Ho is not entitled to have service upon him set aside in any respect. I am not disposed to impose terms at this stage limiting the effect of service by excluding the shadow director allegations. The underlying facts are likely to be similar in relation to all aspects of paragraph 1 of the Details of Claim and a decision as to whether that part of the claim should be struck out is best made in the context of the overall management of the case. Consideration will also need to be given to paragraphs 1.4 and 1.6. 34 I take a different view in relation to paragraphs 2 and 3. It is questionable whether the relief sought is the same relief as that involved in paragraphs 1 and 4 and, in my opinion, is sufficiently distinct from it to make it unnecessary and undesirable that an overseas party should be put to the trouble and expense of coming to Australia to defend. 35 I have found that there is no prima facie case against Grande Group pursuant to paragraphs 2 or 3 of the Details of Claim. Grande Group does not challenge service in relation to paragraphs 1 and 4 of the Details of Claim. On one view, the substance of the relief sought in paragraphs 1, 2, 3 and 4 of the Details of Claim is the same designed to recoup the identified losses. If that were so, Bray v F Hoffman-La Roche Ltd (above) would indicate that Grande Group is not entitled to relief on the motion otherwise then pursuant to the general discretion. I am not satisfied that the relief sought in paragraphs 2 and 3 of the Details of Claim is identical to that sought in paragraphs 1 and 4. I am prepared to set aside service in relation to paragraphs 2 and 3. Even if I am wrong in that, I would achieve the same result by imposing terms. 36 Grande Holdings is implicated in relation to more of paragraph 1 of the Details of Claim than Ho and is in the same position as Grande Group in relation to paragraphs 2 and 3. 37 The Application and service of the Application upon each of Grande Group and Grande Holdings will be set aside in so far as paragraphs 2 and 3 of the Details of Claim are concerned. Subject to submissions to the contrary, the Application should be amended to delete paragraphs 2 and 3 of the Details of Claim and the Statement of Claim should be amended accordingly. As the major relief sought in the motion has not been granted, but there has been a measure of success, 50 per cent of the costs of the respondents to the motion (the applicants in the proceeding) will be the applicants' costs in the cause. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 5 May 2006 Counsel for the Applicants: JC Kelly SC, G Lucarelli Solicitor for the Applicants: DMAW Lawyers Counsel for the First, Second and Third Respondents: JRJ Lockhart Solicitor for the First, Second and Third Respondents: Freehills Date of Hearing: 6 December 2005 Date of Judgment: 5 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/511.html


case_text: It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'


case_title: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551


case_title: Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387


case_outcome: discussed

case_text: The particular definition of 'officer' was introduced to the Act in 1999 by the Corporation Law Economic Reform Program Act 1999 (Cth). However, like issues have arisen in relation to similar provisions at various times. A useful summary appears in the judgment of McColl JA in Forge v Australian Securities and Investments Commission (2004) 213 ALR 574 at [183] [195]. A very wide application was given to the definition by Santow J in Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission (ASIC) v Adler [2002] NSWSC 171 ; (2002) 168 FLR 253, (2002) 41 ACSR 72 at [55] [75]. There does not appear to have been any discussion about that aspect of the judgment on the appeal ( Adler v Australian Securities and Investments Commission [2003] NSWCA 131 ; (2003) 179 FLR 1, (2003) 46 ACSR 504). Austin J also recently discussed some former similar provisions in Australian Securities and Investments Commission v Vines (2006) 55 ACSR 617 at [1030] [1056], [1123] [1131], [1266] [1276] and [1415] [1425], although the factual situation in that case differed substantially from the present facts. 23 The facts in Australian Securities and Investments Commission v Adler are somewhat closer. Adler was a director of HIH Insurance Limited (HIH) from 16 April 1999 to 26 February 2001. He joined the Investment Committee of HIH on 2 June 1999 and was a member of that Committee throughout 2000. HIH Casualty and General Insurance Co Limited (HIHC) was a wholly owned subsidiary of HIH. Adler had no office in that company. It was held that Adler was an officer of HIHC by virtue of his participation in decisions by the Board of HIH and the Investment Committee of HIH affecting the affairs of HIHC. It was found that he was one 'who makes or participates in making, decisions that affect the whole, or a substantial part, of the business of HIHC', namely investment decisions, and also, as a director of the parent HIH, had at the relevant times 'a capacity to affect significantly the corporation's (HIHC's) financial standing'. 24 That reasoning is not directly applicable to the present circumstances as it was a case of parent and subsidiary. However, it can be argued that the effect of the Agreement is to substitute the board of Grande Group for the board of Akai Australia for all practical purposes and it can also be argued that the position of Ho viz a viz Grande Group is more significant than was the role of Adler in relation to HIHC. Whilst any such conclusion, and indeed the correctness of the reasoning in Australian Securities and Investments Commission v Adler, may be debateable, the issue is appropriate to be settled at trial rather than at this interlocutory stage. I thus conclude that there is a prima facie case that Ho was a deemed officer of Akai Australia at the relevant time, although not a deemed director. As appears from paragraph 1 of the Details of Claim, there are relevant differences in the effect of being a deemed officer as compared with a deemed director as some consequences of being a director are not suffered by officers (eg, there is no liability under s 588G). All of paragraph 1 of the Details of Claim is predicated upon the respondents being directors or officers. 25 The next issue is whether there is a prima facie case that either Grande Group or Grande Holdings was a holding company of Akai Australia such as to lead to the potential contravention of s 588V as alleged in paragraph 2 of the Details of Claim. By s 9, 'holding company', in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary. Whether a body corporate is a subsidiary is determined by the application of ss 46, 47 and 48 of the Act. It is suggested that here each of Grande Group and Grande Holdings controlled the composition of the Board of Akai Australia and was in a position to cast, or control a casting of, more than one-half of a maximum number of votes that might be cast at a general meeting of Akai Australia. 26 In the case of Grande Group, it is alleged that the prima facie case followed from the Agreement and the control it could exercise directly and through Akai Electric; and, in the case of Grande Holdings, by virtue of its shareholding in, and control of, Grande Group.


case_outcome: referred to

case_text: A shadow director of a company includes a person who is not validly appointed as a director where the directors of a company are accustomed to act in accordance with the person's instructions or wishes ( Corporations Act 2001 (Cth) (the Act) s 9). There is authority that a corporation can be a shadow director ( Standard Chartered Bank of Australia Ltd v Antico (1995) 131 ALR 1; (1995) 38 NSWLR 290 at 323). . 18 A prima facie case has certainly been established that the directors and officers of Akai Australia regarded themselves as bound to follow the instructions of Grande Group during the relevant period. The question is whether there is a prima facie case that they were accustomed to act in accordance with the instructions or wishes of Ho and Grande Holdings. The mere fact that Grande Group was a subsidiary of Grande Holdings and that Grande Holdings was accustomed to act in accordance with the instructions or wishes of Ho would not be sufficient to establish such a case ( Standard Chartered Bank (above) at 324B and 327G). It seems to me, however, that a possible view of the facts at a prima facie level is that the directors and officers of Akai Australia were prepared to, and did, accept instruction from those whom they regarded as speaking for the Grande group of companies as a whole and, in particular, from those speaking with the authority of the ultimate holding company, Grande Holdings, and its effective controller, Ho. Binney does not appear to have been a director or officer of Grande Group and the communications, generally speaking, do not purport to emanate from that particular company. I have already referred to the evidence of involvement of officers acting on behalf of Grande Holdings. 19 In my opinion, there is a prima facie case that Grande Holdings was a shadow director of Akai Australia. I am not persuaded that the same conclusion should be reached in relation to Ho. It needs to be borne in mind that the question is not one of actual or ultimate control by Ho but, rather, concerns the propensity of the local executives to act upon the instructions and wishes of Ho. I cannot see a sufficient basis for raising an arguable case that Ho gave any direct instructions to any such executive, or that there is a proper basis upon which it could be concluded that those who did give instructions gave them in the name of Ho. Even if there were, there is nothing to indicate that Ho was acting as an individual rather than as the chief executive of Grande Holdings. 20 However, paragraph 1 of the Details of Claim also alleges that Ho and Grande Holdings are deemed officers of Akai Australia. A shadow 'officer' of a company includes: '(b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation's financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation).'


case_title: Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539


case_title: Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102


case_title: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472


case_text: Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]: ' [26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)) , and although the Tribunal was not bound by "technicalities, legal forms or rules of evidence" (s 420(2)(a)) , the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision. [27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.'


case_text: The appellant did not advance any reason why the Parliament would have intended the Act to be construed in a way which prevented the tribunal from coming to a decision in an applicant for review's favour before a hearing either on reconsideration of the original material before it or on subsequently becoming aware, say, of country information, perhaps recent or up to date or from conducting another review, which supported a result favourable to that applicant. This beneficial construction is open. There is no reason to reject it: ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] .


case_text: Neither counsel was able to refer to any decision directly on point. However, in Minister for Immigration v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 at 585-587 [54] - [64] Spender, French and Cowdroy JJ considered the operation of Div 4 of Pt 7 of the Act in the context where an applicant for review had instructed her migration agent that she wished to attend a hearing of the tribunal in response to its invitation under s 425(1) , but the agent, purportedly on her behalf informed the tribunal that she did not wish to appear. 15 Their Honours referred to the fact that the tribunal had followed a similar administrative procedure to that used here. It had combined the invitation under s 425(1) with a notification of the date, time and place of the appearance pursuant to s 425A(1) ( SZFML 154 FCR at 586 [61]). They went on to consider what they identified as the 'logical structure of ss 425 and 425A '. They held that this involved the following theoretical sequence ( SZFML 154 FCR at 586 [62]). (1) The tribunal considers whether it should decide the review in the applicant's favour on the basis of the material before it. If it so finds, it can make the decision immediately and end the review. Otherwise it has to issue an invitation unless one or other of the conditions in ss 425(2)(b) or (c) is satisfied. (2) The tribunal asks the applicant for review whether he or she consents to it deciding a review without him or her appearing before it. If that consent is given, the applicant is not entitled to appear and the tribunal can then proceed to decide the review. (3) However, if the applicant does not give that consent, the tribunal must consider whether ss 424C(1) of (2) applies to him or her, and if not, then the invitation must be issued. (4) The tribunal must give the applicant notice of the day on which, and the time and place at which he or she is scheduled to appear. A minimum time between the giving of that notice and the actual hearing is prescribed in Reg 4.35D. (5) If the applicant does not appear at the hearing, then the tribunal is authorised to make a decision on the review without any further steps to allow or enable the applicant to appear before it. (6) Notwithstanding the above, the tribunal has a discretion to reschedule an applicant's appearance before it. 16 In SZFML 154 FCR at 586-587 [63]-[64], the applicant's migration agent had notified the tribunal that the applicant for review had consented to it deciding the review without her appearing before it, in circumstances where she had not authorised the agent to do so. Their Honour's said ( SZFML 154 FCR at 587 [64]): 'No question of the application of s 426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML . It did not proceed on the basis of her non-appearance at a scheduled hearing.' 17 Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]: ' [26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)) , and although the Tribunal was not bound by "technicalities, legal forms or rules of evidence" (s 420(2)(a)) , the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision. [27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.' 18 The Minister argued that the response to the invitation to hearing form and his Honour's finding demonstrated that the appellant had consented under s 425(2)(b) to the tribunal deciding the review without him appearing before it. He pointed to what Spender, French and Cowdroy JJ had said in SZFML 154 FCR at 585 [58], namely that where one of the conditions set out in s 425(2) is satisfied, the entitlement to appear before a tribunal established under s 425(1) either did not come into existence or ceased to exist and the tribunal's duty to invite the applicant for review to appear before it was thus discharged. The appellant riposted that the structure of s 425 implied that the consent referred to in s 425(2)(b) had to antedate the issue of the invitation and that once issued the invitation could not be withdrawn. 19 I do not accept the appellant's argument. After issuing an invitation but before the date of the hearing, the tribunal could decide the review in favour of the applicant for review. If it did that, further conduct of the review would be otiose. Not only would there be no need for a hearing but there would be nothing for the applicant for review to put to the tribunal, since the decision already made by it would have granted the applicant what he or she had applied to get in the first place. A reconsideration by the tribunal after issuing an invitation to a hearing under s 425(1) resulting in a decision to grant the applicant for review a protection visa would enable the tribunal to pursue the objective in s 420(1) of providing a mechanism of review that, among other things, was quick. There would be no purpose in continuing to a hearing or suspending the notification to the applicant for review of the favourable decision until some future time simply because, the earlier review of the tribunal was that a hearing ought to take place. A saving of the tribunal's time, public expense, and, possibly, expense for the applicant would ensue from the immediate notification of a favourable decision prior to the scheduled hearing date. 21 Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant's favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1) , can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it. 22 For these reasons, the tribunal was entitled to proceed on the basis that the applicant had consented to it determining the review pursuant to s 425(2)(b). 23 The appellant also argued that by dint of s 430B(4) , if a decision is not made orally or the applicant is not in immigration detention (s 430B(1)) , the date of any decision of the tribunal is the date on which it is handed down. He argued that this provision had the effect of deeming the decision to have been made on a date different to that which it actually records as being the date on which it was made. The appellant argued that until a decision to which s 430B(1) applied was handed down, the tribunal could change its mind on the course or decision it had previously decided to adopt.


case_text: Similarly, as Minister for Immigration v Bhardwaj (2002) 209 CLR 597 held, a decision affected by jurisdictional error is treated as being no decision at all (see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). There, the tribunal had made a decision in ignorance of a medical certificate provided by the applicant for review to the registrar of the tribunal notifying it that he was unable to attend at the hearing. The Court held that in law no decision had been made and the tribunal was free to exercise its powers on the review, as it had done, once it became apprised of the true position that it had not afforded the applicant for a review hearing in accordance with the Act.


case_title: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476


case_text: In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that ( Ozone Theatres 78 CLR at 400): 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.'


case_text: In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that ( Ozone Theatres 78 CLR at 400): 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' 31 As Gaudron and Gummow JJ went on to say in Aala 204 CLR at 109 [59]: 'The concern is with observance of fair decision making procedures rather than with the character of the decision which emerges from the observance of those procedures.' 32 Here, the tribunal did not do anything to depart from a fair decision-making procedure in light of the notification by the appellant that he consented to the tribunal deciding the review without affording him a hearing. I am of opinion that no useful result could ensue from granting constitutional writ relief to the appellant. 33 For these reasons I would dismiss the appeal with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 20 March 2008 Counsel for the Appellant: T Owen (pro bono) Counsel for the First Respondent: MP Cleary Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 5 March 2008 Date of Judgment: 20 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/368.html


case_title: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609


case_text: The Court has a discretion to refuse to grant a writ of prohibition where an applicant unjustifiably allows an inferior court to proceed to judgment in excess of its jurisdiction without having set up the objection. The conduct of a party seeking the remedy of prohibition is relevant to the exercise of the discretion to grant it: see Zimpel v Allard [1904] HCA 56 ; (1904) 2 CLR 117 at 120 per Griffith CJ, Barton and O'Connor JJ applying Willes J's advice to the House of Lords in Mayor of London v Cox (1866) LR 2 HL 239 at 283. I am of opinion that the principle applies equally to an administrative body exceeding its jurisdiction when a party before it unjustifiably (in the context of his, her or its subsequent challenge) allows it to do so.