case_title: WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, Industrial Relations Commission NSW, Maidment J, 8 August 1996)

case_text: In WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, Industrial Relations Commission NSW, 8 August 1996) Maidment J found that the obligation cast upon the defendant by s 16(1) of the Occupational Health and Safety Act 1983 (NSW) ('the NSW Act') was confined to the periods when maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work of the lift maintenance company within the sense of s 16 of the NSW Act. 24 Having cited Fisher CJ, Maidment J in Boral Elevators , continued (at 8): A council repairing a pot hole in a road is required to ensure that the site is safe during repair work. It is not, however, required by this legislation to ensure that the road surface is properly repaired such that no hazard will arise from the quality of the workmanship. 25 Telstra also relied upon passages where, after referring to Boral Elevators, the Full Bench of the NSW Industrial Court in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRC 133 said: 40 On 3 September, the appellant had no employees at the site and the appellant did not enter or leave the site on that day. 41 The respondent contended that the work of the appellant continued on the site on 3 September 1998 even though he was not physically present, because his plans were still being used to construct the footings. 42 As Fisher CJ observed in respect of s 15(1) of the OH&S Act, in Inspector Clarke v W.L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 & 1213 of 1990, 30 June 1992) the phrase "at work" has temporal connotations. Similarly, in our view, in respect of the duty under s 16(1), it is necessary to determine the temporal obligations on 3 September 1998 of the appellant. The legislation does not require the appellant to ensure the product of his work, his advice, directions and drawings, were devoid of hazard. No actual work was being performed or "being done" in the conduct of his undertaking at the site. In other words, the appellant was not giving advice, giving directions, or making drawings. The OH&S Act is directed to workplaces and does not impose an obligation to ensure that the product of that work is free from hazard: Boral Elevators . Clearly, the site was the builder's place of work, but there was no evidence before his Honour of a continuance of the work of the appellant. The obligation falls upon the prosecutor to demonstrate that the elements of s 16 have been proved unless there is a clear admission which there was not in this case. 43 In Boral Elevators , Maidment J found that the obligation cast upon the defendant by s 16(1) was confined to the periods during which maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work within the sense of s 16 of the Act. 44 We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1). 26 Further, in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 , Walton J Vice President applied Boral Elevators and held: 304 The decision of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) is a case in point on the flexible, transient nature of employers' places of work and effectively endorses the comment of Fisher P, quoted above, that the emphasis of the Act always seems upon the place where work is being done. From time to time the defendant performed maintenance and repair work on an inclinator, but employees of the defendant were not at the premises either at the time of the accident or between the times specified in the summons. The sole question for the Court was whether the inclinator was the defendant's place of work within the meaning of s 16. Maidment J held that it was not, on the basis that the Act was not directed at general product liability, and did not require employers such as (for example) boat repairers to ensure the safety of the end product of their work as a boat, as opposed to as a place of work. However, his Honour considered that during maintenance, the inclinator would have been the employer's place of work (at page 9): Thus it is with an employer engaged in lift maintenance. Under s 16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they were at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s. 16 is confined to the periods during which maintenance work is being conducted. 27 Boral Elevators was also approved by Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997), a case which dealt with the concept of 'employer's place of work', again focusing attention (in keeping with the approach of Fisher CJ) on the performance of work. 32 The cases which Telstra relied on were largely premised on the Boral Elevators case. I consider that Boral Elevators is distinguishable on its facts. Elevators are constructed for the very purpose of being used by people who are not necessarily elevator constructors nor maintenance workers. In shops, hotels and public buildings, they are provided for use by the general public. Elevators would not normally be regarded as, at all times, a workplace of a lift maintenance company, which may have contractual obligations of maintenance to the owner of the premises in which the elevator is situated, but does not possess, own or control the elevator itself. In that situation, an issue may arise as to whether a particular defendant is an employer at a particular workplace under its control. However, the elevator would normally be regarded as (part of) the workplace of, say, the owner of the shop, hotel or public building where its employees use or operate the elevator. In those circumstances, the elevator would always be the workplace of such an owner and employer. If the elevator was being repaired, then during that period, it could also be regarded as the workplace of the lift maintenance company engaged on site. 33 In the case of Telstra's pit and pit lid, each exists to be used and accessed by Telstra employees, and is available for such use and access at all times. Putting aside other persons having access to the pit (presumably with the authority Telstra) the principal function of the pit is to carry out Telstra's activities. Each pit and pit lid is owned and controlled at all times by Telstra. An important purpose and function of the pit is to facilitate work being performed for Telstra's other assets, so that Telstra can provide services to its customers. After all, the pit has been installed to allow access to, and maintenance of, Telstra's underground network.


case_outcome: distinguished

case_text: Boral Elevators was also approved by Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997), a case which dealt with the concept of 'employer's place of work', again focusing attention (in keeping with the approach of Fisher CJ) on the performance of work.


case_text: I do not have before me a situation where the decision-maker had undertaken to provide an opportunity for comment prior to making an adverse decision: see, eg, Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 ; (2002) 123 FCR 23 ; and WAJH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 935.


case_outcome: cited

case_text: Telstra submitted that no breach of s 17 of the Act could occur unless there were reasonably practicable measures that could have been taken to negate or reduce the risk. Telstra referred to tort cases and argued that the investigator did not identify any 'alleviating action': (see Wyong Shire Council v Shirt [1980] HCA 12 ; (1980) 146 CLR 40 at 47-8).


case_text: Section 468 of the Act provides that any disposition of property of a company, other than an exempt disposition, made after the commencement of the winding up of the company by the Court is void, unless the Court otherwise orders. In an application under s 468 or its equivalent, the Court has a discretion to order that a disposition of property is not void. It may be that, where a creditor has been prevented by force or by fraud or trickery from issuing execution or attachment prior to the commencement of a winding up, the Court would order that the execution or attachment is not void (see Armorduct Manufacturing Company Ltd v General Incandescent Company Ltd [1911] 2 KB 143 at 147. 27 However, there is no power given to the Court under s 569 to order that s 569 not apply. In any event, there is simply no evidence before the Court to suggest that there was any fraud or trickery that resulted in any delay in obtaining the garnishee order that resulted in the payment from the Bank to Sandos. Accordingly, there is no basis for suggesting that this ground for setting aside the statutory demand has any substance. 28 Sandos contends that it is, at most, liable to pay the amount received following the garnishee order, less an amount in respect of the costs of the garnishee order. It says that, since that amount has not been determined, it is not possible to determine the amount payable.


case_text: Sandos points out that, in a proceeding under Division 2 of Part 5.7B of the Act, in respect of an insolvent transaction, the liquidator is a necessary party to a proceeding for recovery. Moneys paid in circumstances that create a preference, and which are recoverable under Division 2, are moneys recoverable for the benefit of the creditors of the company generally. Such moneys are not property of the company in liquidation; nor are they moneys owed by the recipient as a debt to the company. Accordingly, a liquidator must sue in his or her own name, in the interest of the creditors, to recover a payment that is void as against the liquidator (see Bibra Lake Holdings Pty Ltd v Firmadoor Australia Pty Ltd 7 (1992) ACSR 380 at 386). 34 An insolvent transaction that is an unfair preference is voidable. There are defences to a claim for payment under Division 2. However, there is no apparent defence to a claim under s 569. It is clear that what is to be paid to a liquidator under that section is the amount recovered by way of attachment, in this case the garnishee order to the Bank. I consider that money received by a liquidator pursuant to s 569 is received by the liquidator as agent for his or her company. 35 Sandos does not contend that the liability that arises by operation of s 569 is not a debt within the meaning of s 459E. Rather, it contends that that debt is owed to the Liquidators and not to Southern. The statutory demand in this case was signed on behalf of Southern by one of the Liquidators in his capacity as one of Southern's joint and several liquidators. Accordingly, it was a demand by Southern and not a demand by the Liquidators. 36 Any moneys received by the Liquidators or received by Sandos will be available as part of the fund available on the winding up of Sandos. While Sandos, notwithstanding that it is being wound up, continues as a separate corporate entity, whose mind is that of its liquidators, there is but one fund available for application in the winding up of Sandos. It is clear enough that the demand related to the sum garnisheed by Sandos from the Bank. Clearly, the demand was being made under s 569 of the Act. I do not consider that the fact the demand purports to be by Southern rather than by the Liquidators is anything more than a formal defect, if it is indeed a defect. I have already concluded that no substantial injustice has been caused by the form of the demand. 37 There is no basis for concluding that there is a genuine dispute between Sandos and either Southern or the Liquidators as to whether s 569 operates. I do not consider that there is a basis for setting aside the demand on this final ground. 38 The application should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 29 June 2007 Counsel for the Plaintiff: A Narayan Solicitor for the Plaintiff: Aiken Lawyers Counsel for the Defendants: J Evans Solicitor for the Defendants: Wollan & Associates Pty Ltd Date of Hearing: 1 June 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/975.html


case_outcome: applied

case_text: I have already set out s 23(1) and my conclusion that it confers a right on the examinee's lawyer and not the examinee. That right is sufficient to attract the rules of procedural fairness: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. ASIC argued that the exercise of investigative powers was not generally subject to the rules of procedural fairness. It instanced Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301 at 317-323 [53]-[72] per Gyles J. The decision under challenge in that case, however, was a decision by ASIC to confer "eligible applicant" status on a person. The only effect of that was to permit such a person to apply for the issue of examination summonses which might result in the examination of a person. Gyles J ultimately held (at 321 [67]): In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally "destroy, defeat or prejudice" (to use the words from Annetts v McCann [1990] HCA 57 ; 170 CLR 596) or "imperil" (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.


case_text: Granted that such an obligation existed, what were the inspectors to do? They needed to provide Atanaskovic Hartnell with an opportunity to persuade the inspectors that the direction should not be given. This was not done and breach is established. There may be difficult cases where the inspectors have before them confidential information the very nature of which requires that it not be shown to the lawyer or to his or her client. However, the inspectors did not suggest that they had relied on any such information in the present proceeding. There was a redacted portion of the reasons of 22 October 2008 but there was no intimation of what had been redacted. In any event, the Applicants did not complain that prejudicial but relevant material had been taken into account thereby: cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.


case_outcome: followed

case_text: There were three issues between the parties. (a) The identity and authority of the decision-maker. ASIC contended that it had given the direction. The Applicants denied that the power to exclude Atanaskovic Hartnell from the examinations was a power which was vested in ASIC. They submitted that the power was vested in the inspectors. The inspectors were joined to the proceedings against this possibility. (b) The reasonable grounds issue. The Applicants submitted that the Full Court's decision in Australian Securities Commission v Bell (1991) 32 FCR 517 meant that the inspectors' direction was liable to be set aside unless they the inspectors demonstrated during the present proceeding that there were reasonable grounds for a bona fide belief on their part that to allow Atanaskovic Hartnell to represent all three of the Applicants would be likely to prejudice the investigation. ASIC, on the other hand, argued that Bell was concerned with the evidential consequences of the regulator failing to provide any reasons for the making of such a direction. Since ASIC furnished reasons for its direction it followed that the principle was inapplicable. Even if that were not so, ASIC argued that the materials before the Court showed that there were reasonable grounds for a bona fide belief on its or the inspectors' part that to allow the Atanaskovic Hartnell to represent all three Applicants would be likely to prejudice the investigation. (c) The procedural fairness issue. As an alternative, the Applicants argued that the power to exclude their lawyers from the examinations was a power the exercise of which attracted an obligation of procedural fairness. Since the inspectors did not give the Applicants any opportunity to argue that the direction should not be made, it followed, so the argument ran, that they had denied the Applicants procedural fairness. ASIC, on the other hand, denied that the power to exclude the Applicants' legal advisers from an examination was a power the exercise of which was conditioned upon adherence to requirements of procedural fairness. It pointed to the fact that the decision to summon the Applicants for examination in the first place was not subject to those requirements and asked, rhetorically, how in the midst of a process in which procedural fairness did not figure largely such an obligation might be found to exist. Against the possibility that it might be found to exist, ASIC submitted that, in the circumstances, the content of the obligation would be diminished to such a low level that it should be found that the obligation had been discharged. 21 ASIC contended that it was it, as a corporate entity, that had given the direction to exclude Mr Hartnell and Atanaskovic Hartnell from being present at all the examinations. The Applicants made no express submission about that question but did submit that if ASIC was the decision-maker (as it submitted) then it had no power to give the direction. This was because the power to exclude a person from an examination was conferred by s 22(1) of the ASIC Act and that provision conferred power not on ASIC but on the inspector conducting the examination. 22 It is necessary in the first instance to identify with clarity who gave the direction. There are three matters bearing on this issue. First, there is the letter of Friday 10 October 2008 written by Ms Dodds and Mr Astar which is on the letterhead of ASIC and is signed by both Ms Dodds and Mr Astar in their stated capacity as "Lawyer, Deterrence". It contains the critical passage: ... we have now considered the matter and formed the view ... 34 This argument should be rejected. Section 19(2) authorises ASIC to summon a person for examination before an inspector. Section 22(1) authorises the inspector to give directions as to who may be present during the examination. There is no warrant for reading s 19(1) as the source of the authority to give such a direction. In any event, the authority of this Court establishes that the source of the power is s 22(1) itself: Australian Securities Commission v Bell (1991) 32 FCR 517 at 521 per Lockhart J, 528-529 per Sheppard J. 39 In Bell v Australian Securities Commission (1991) 31 FCR 184 at 189 Pincus J held that s 22 did not permit an inspector to exclude an examinee's lawyer. This conclusion was reversed by the Full Court: Australian Securities Commission v Bell (1991) 32 FCR 517 at 521 per Lockhart J, 528-529 per Sheppard J, 532-533 per Burchett J. The binding nature of that conclusion is not open to doubt. 42 The authorities do not establish this proposition clearly. However, at least two members of the Full Court thought that the right was conferred on the lawyer: Australian Securities Commission v Bell (1991) 32 FCR 517 at 528 per Sheppard J, 532 per Burchett J. The matter is complicated because Burchett J also thought (at 532) that the client had a right to have his lawyer's right observed. Lockhart J adverted to the question (at 519) but did not answer it.


case_outcome: referred to

case_text: In Bell v Australian Securities Commission (1991) 31 FCR 184 at 189 Pincus J held that s 22 did not permit an inspector to exclude an examinee's lawyer. This conclusion was reversed by the Full Court: Australian Securities Commission v Bell (1991) 32 FCR 517 at 521 per Lockhart J, 528-529 per Sheppard J, 532-533 per Burchett J. The binding nature of that conclusion is not open to doubt.


case_text: Where, as here, it is alleged that ASIC has acted outside its power in making an exclusion direction under s 22(1), ASIC is required to prove that the making of the order was "necessary" in the sense used in Bell . The reasonable necessity is based on the views of the inspector if it appears necessary to the inspector then that will suffice provided that his or her belief is reasonably held. Put another way, the encroachment of the power in s 22(1) into the field of operation of s 23(1) is subject to a condition precedent, namely, the satisfaction of the inspector that the encroachment is necessary. And, of course, it is not to be presumed that Parliament intended that the inspector's view could be formed capriciously hence, not only must be the opinion be formed but is must be reasonably held: cf. Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654 per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 150 [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ.


case_title: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135


case_outcome: considered

case_text: In Stockbridge v Ogilvie (1993) 43 FCR 244 examinees sought judicial review of a direction given by an inspector appointed by the Australian Securities Commission to exclude their lawyer. French J appeared to assume (at 254), without debate, that the right created by s 23(1) was conferred on the examinee's lawyer although it may be admitted that this is far from clear. In Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [6] the parties, and Byrne J, assumed that the right was conferred on the examinee. In Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [38] French J assumed without discussion that the right was conferred on the examinee. 44 Bell requires the conclusion, with which I agree, that the right is at least conferred on the examinee's lawyer. It is an open question whether the right is also conferred on the examinee. The right referred to by Burchett J in Bell as the right to have the lawyer's right enforced does not appear, with respect, to have a textual foundation. The right assumed to be vested in the examinee in Gangemi and Re Macquarie Advisory Group was the right in s 23(1) itself rather than the right adverted to by Burchett J. 45 Only one judge (Sheppard J) has considered the matter in any detail. The statements by French J in Stockbridge and Gangemi do not appear to me to be intended to be taken as considered statements on the question and the statement by Byrne J is certainly not. 54 The opinion which matters is that of the inspector. The only issue for the Court is whether that opinion is held on reasonable grounds and in good faith. Once that threshold is passed, the fact that the Court might not have made the direction itself is of no moment because the state of satisfaction which expands the operation of s 22(1) into the domain of s 23(1) is that of the inspector and not that of the Court: cf. Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [39] per French J; Stockbridge v Ogilvie (1993) 43 FCR 244 at 255 per French J. 65 For completeness, it is to be noted that ASIC had a similar inference drawn against it for failing to put on evidence as to the decision-making process in Bell 32 FCR 517 at 525 per Lockhart J, 531 per Sheppard J and, arguably, at 533 per Burchett J. Further, such evidence was put before the Court in Macquarie Advisory Group Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [8] per Byrne J and in Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 290-291 [19] - [20] per French J. Whilst it is true that in both Gangemi and Stockbridge that the reasons of the inspectors were before the Court it is also true that those reasons were delivered contemporaneously with the direction. The significance of such evidence in the present case was obvious, therefore, not only because the Applicants explicitly signalled their intention to doubt the usefulness of the statement of reasons of 22 October 2008 but also from the course of authorities dealing with s 22(1). 71 That approach may, of course, require that confidential evidence be given about the relevant concerns in this Court. This was expressly contemplated in Bell by Lockhart J (at 32 FCR 521) and Sheppard J (at 32 FCR 532) both of whom indicated that the processes of the Court could be adapted to deal with the exigencies obtaining in such a state of affairs. Consistent with that observation French J received a confidential affidavit in Gangemi (at 129 FCR 290 [20]). 78 The question of whether the power in s 22(1) attracts a procedural fairness obligation has received little consideration. Sheppard J in Bell (32 FCR 516 at 532) thought that such an obligation did exist. Neither Lockhart nor Burchett JJ considered the issue. None of the decisions in Re Macquarie Advisory Group Ltd (33 ACSR 106), Stockbridge (43 FCR 244) or Gangemi (129 FCR 284) deals with the question.


case_text: Where confidential but prejudicial information is taken into account by a decision-maker, the Court may fashion its own procedures to determine whether the nature of the information is such as to reduce the obligation of procedural fairness to nothing: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74 at [100] - [104] per Smart AJ; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 275-276 [143] - [144] per Weinberg, Bennett and Edmonds JJ. However, the difficult issues which may arise in that context were not ventilated in the present proceedings.


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: In those circumstances, the failure to call either the inspectors or Mr McGuinness permits me more comfortably to draw the inference to which I have already referred viz that the statement of reasons of 22 October 2008 does not reflect the true basis for the actions of the inspectors on 10 October 2008 when they gave the direction: Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. I so conclude. It follows that I do not think that any reliance should be placed upon those reasons. 72 In this case, however, there is nothing in the letter of 10 October 2008 to indicate what the conflict was between the accounts of the Applicants, why those conflicts mattered or what it was that made it necessary for Atanaskovic Hartnell to be excluded. An inference is open that because those matters are not dealt with in the letter of 10 October 2008 that the inspectors did not, in fact, turn their minds to those matters. I may more readily draw that inference in circumstances where the inspectors did not give evidence before me as to these matters: Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. 73 I am conscious that ASIC subsequently produced a set of reasons on 22 October 2008. I have previously come to the conclusion that this set of reasons is not to be given any weight. Be that as it may, it might be thought that a belief on ASIC or the inspectors' parts that the second set of reasons would stand as the reasons for the direction may provide an explanation as to why no evidence was given by the inspectors or Mr McGuinness as to their grounds for the giving of the direction on 10 October 2008. If that explanation were to be accepted as legitimate it would prevent the drawing of the inference to which I have referred. I do think that it is possible that the second set of reasons provides some explanation for the absence of evidence from the inspectors or Mr McGuinness. However, it is difficult to know whether that it so or whether the decision not to call them was made by other people for possibly other reasons. 74 Ultimately, I think that it would be conjecture on my part to conclude that the reason the inspectors and/or ASIC did not give evidence about the grounds underpinning the letter of 10 October 2008 was because they, or their advisers, believed that the second set of reasons would perform that function for them. In that circumstance, I do not think that I can accept such a view as a sufficient or adequate reason for their not having been called such as would prevent the drawing of the inference to which I have referred. Accordingly, the only grounds that the inspectors had were the grounds set out in the letter of 10 October 2008, and those grounds were not adequate in the requisite sense.


case_text: Other provisions in Division 2 of Part 3 of the ASIC Act observe a distinction between ASIC on the one hand and the inspectors on the other. ASIC has the powers and functions explicitly conferred on it by ss 19(1) , 19 (2), 25 and 27 (2). By contrast, an inspector has functions and powers conferred on him or her by ss 21(1) , 21 (3), 22 (1), 23 (2), 24 (1), 24 (2)(a) and 24 (2)(b). If, as ASIC submits, all of the powers and functions of an inspector derive from the power conferred on ASIC by s 19(2) , then this distinction between an inspector and ASIC in Division 2 of Part 3 is merely a textual oddity having no significance. That view is contrary to the general principle of statutory construction that in construing a set of provisions each word must be given meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ. For those reasons, on its proper construction s 22(1) confers a power on an inspector in his or her own right and not upon ASIC. 36 This means that ASIC's arguments that it gave the direction in question and that it had authority to do so must both be rejected. This conclusion has two consequences. First, the proper respondents to these proceedings are the inspectors themselves and not ASIC. Secondly, the inspectors were, in fact, clothed with authority to give the direction by s 22(1). For present purposes this means that the Applicants' claim against ASIC must be dismissed. 37 Sections 22 and 23 of the ASIC Act provide: 22 Examination to take place in private (1) The examination must take place in private and the inspector may give directions about who may be present during it, or during a part of it. (2) A person must not be present at the examination unless he or she: (a) is the inspector, the examinee or a member; or (b) is a staff member approved by ASIC; or (c) is entitled to be present by virtue of: (i) a direction under subsection (1); or (ii) subsection 23(1). Penalty: 10 penalty units or imprisonment for 3 months, or both. (3) Subsection (2) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . 23 Examinee's lawyer may attend (1) The examinee's lawyer may be present at the examination and may, at such times during it as the inspector determines: (a) address the inspector; and (b) examine the examinee; about matters about which the inspector has examined the examinee. (2) If, in the inspector's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires. Note: Failure to comply with a requirement made under this subsection is an offence (see section 63). (3) An offence under subsection 63(4) relating to subsection (2) of this section is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code .


case_text: In Stockbridge v Ogilvie (1993) 43 FCR 244 examinees sought judicial review of a direction given by an inspector appointed by the Australian Securities Commission to exclude their lawyer. French J appeared to assume (at 254), without debate, that the right created by s 23(1) was conferred on the examinee's lawyer although it may be admitted that this is far from clear. In Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [6] the parties, and Byrne J, assumed that the right was conferred on the examinee. In Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [38] French J assumed without discussion that the right was conferred on the examinee. 65 For completeness, it is to be noted that ASIC had a similar inference drawn against it for failing to put on evidence as to the decision-making process in Bell 32 FCR 517 at 525 per Lockhart J, 531 per Sheppard J and, arguably, at 533 per Burchett J. Further, such evidence was put before the Court in Macquarie Advisory Group Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [8] per Byrne J and in Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 290-291 [19] - [20] per French J. Whilst it is true that in both Gangemi and Stockbridge that the reasons of the inspectors were before the Court it is also true that those reasons were delivered contemporaneously with the direction. The significance of such evidence in the present case was obvious, therefore, not only because the Applicants explicitly signalled their intention to doubt the usefulness of the statement of reasons of 22 October 2008 but also from the course of authorities dealing with s 22(1).


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: The text of s 23(1) is, I think, plain. The right is conferred on the examinee's lawyer. In that regard, its wording is different from s 25(4) of the National Crime Authority Act 1984 (Cth) which provided, in part, that "a person giving evidence may be represented by a legal practitioner" and which was held by the Full Court in National Crime Authority v A (1988) 18 FCR 439 at 446 per Bowen CJ, Sheppard and Morling JJ to operate as a conferral of a right upon a witness. 47 The notion that rights are conferred on lawyers rather than their clients is neither novel nor surprising. The right to file an originating process is conferred on a solicitor just as the right of audience is conferred on both solicitors and barristers. In each of those cases the right thereby conferred is to be exercised by the lawyer in accordance with his or her legal and equitable duties. To conclude that the right conferred by s 23(1) on a lawyer is to be exercised for the benefit of the client (and in accordance with lawful instructions) does not make it necessary to construe s 23(1) as conferring a right on the client. 48 Reference has already been made to s 25 of the National Crime Authority Act 1984 (Cth) which expressly confers a right on an examinee to have a lawyer present during an examination. That Act did not confer on the Authority an explicit power to exclude a lawyer. However, s 19 of the Act conferred on the Authority the power to do all things necessary to be done for or in connexion with the performance of its functions. In National Crime Authority v A (1988) 18 FCR 439 at 446 the Full Court held that that power extended to the exclusion of a lawyer from an examination notwithstanding s 25(4). However, that meant that the extent of the power was coterminous with the degree of the necessity. Hence, the Full Court held (at 448) that the power to exclude a lawyer arose if the Authority "concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out". 49 There was nothing novel about that conclusion. The fact that the power actually used depended upon the existence of a relevant necessity meant that an absence of such a necessity entailed ultra vires action. In that sense, it was for the Authority to show that its action was within power and to do that it needed to so show the necessity which activated the power in s 19. 50 In Bell that test appears to have been grafted onto ss 22 and 23 of the former (but relevantly identical) Australian Securities Commission Act 1989 (Cth). Notwithstanding that s 22 expressly conferred a power to exclude which was absent from the National Crime Authority Act 1984 (Cth), Lockhart J concluded (at 521) that the power conferred by s 22(1) was subject to the same limitation that the Authority was subject to in National Crime Authority v A, namely, that the inspector must form the view that there are "reasonable grounds for a bona fide belief" on the inspector's part that to allow the particular lawyer to appear "will or is likely to prejudice the investigation which he is obliged to carry out pursuant to the requirements of the Act". 51 The mechanism underpinning this reasoning appears to be the need to reconcile apparently contradictory provisions. It is true that s 22(1) is not expressed to be subject to the same limitation as s 25 of the National Crime Authority Act 1984 (Cth), namely, that the step sought to be justified had to be "necessary". However, to prevent the power to exclude in s 22(1) from devouring the whole of the operation of s 23(1) , which entitled the lawyer to be present, it was necessary to place limits on the extent of the power thereby conferred. Lockhart J identified the limitation as one of reasonable necessity which was explicit in National Crime Authority v A . Burchett J expressed essentially the same conclusion (at 533): I agree that, despite the express language of the Act, it is implicit in the scheme for which the Act provides that he [scil. the lawyer] may be excluded. However, such a qualification upon the express entitlement conferred by the Act cannot be stretched beyond what the court can say is necessarily required for the carrying out of the examination for which the statute provides.


case_title: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74


case_text: Mr Halley submitted that Bell was better understood as a case where the evidential burden was shifted to the Commission by the paucity of the reasons it initially proffered: cf. Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664 per Gibbs CJ with whom Wilson, Brennan and Dawson JJ agreed. There is no doubt that Sheppard J approached the matter on that basis: see Bell 32 FCR 517 at 531. However, I do not think it was the way in which Lockhart and Burchett JJ approached it.


case_title: Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301


case_title: Stockbridge v Ogilvie (1993) 43 FCR 244

case_text: In Stockbridge v Ogilvie (1993) 43 FCR 244 examinees sought judicial review of a direction given by an inspector appointed by the Australian Securities Commission to exclude their lawyer. French J appeared to assume (at 254), without debate, that the right created by s 23(1) was conferred on the examinee's lawyer although it may be admitted that this is far from clear. In Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [6] the parties, and Byrne J, assumed that the right was conferred on the examinee. In Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [38] French J assumed without discussion that the right was conferred on the examinee. 45 Only one judge (Sheppard J) has considered the matter in any detail. The statements by French J in Stockbridge and Gangemi do not appear to me to be intended to be taken as considered statements on the question and the statement by Byrne J is certainly not. 54 The opinion which matters is that of the inspector. The only issue for the Court is whether that opinion is held on reasonable grounds and in good faith. Once that threshold is passed, the fact that the Court might not have made the direction itself is of no moment because the state of satisfaction which expands the operation of s 22(1) into the domain of s 23(1) is that of the inspector and not that of the Court: cf. Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [39] per French J; Stockbridge v Ogilvie (1993) 43 FCR 244 at 255 per French J. 65 For completeness, it is to be noted that ASIC had a similar inference drawn against it for failing to put on evidence as to the decision-making process in Bell 32 FCR 517 at 525 per Lockhart J, 531 per Sheppard J and, arguably, at 533 per Burchett J. Further, such evidence was put before the Court in Macquarie Advisory Group Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [8] per Byrne J and in Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 290-291 [19] - [20] per French J. Whilst it is true that in both Gangemi and Stockbridge that the reasons of the inspectors were before the Court it is also true that those reasons were delivered contemporaneously with the direction. The significance of such evidence in the present case was obvious, therefore, not only because the Applicants explicitly signalled their intention to doubt the usefulness of the statement of reasons of 22 October 2008 but also from the course of authorities dealing with s 22(1). 78 The question of whether the power in s 22(1) attracts a procedural fairness obligation has received little consideration. Sheppard J in Bell (32 FCR 516 at 532) thought that such an obligation did exist. Neither Lockhart nor Burchett JJ considered the issue. None of the decisions in Re Macquarie Advisory Group Ltd (33 ACSR 106), Stockbridge (43 FCR 244) or Gangemi (129 FCR 284) deals with the question.


case_text: Deputy Commissioner of Taxation v Mutton (1988) 79 ALR 509 at 512 Mahoney JA said: In the end, what the court does when it decides whether there is a 'contrary intention' is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section: see Gibb v FCT [1966] HCA 74 ; (1966) 118 CLR 628 at 635. The legislative intention may, perhaps, be more easily seen ... where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command: see, eg, R v Brewer [1942] HCA 33 ; (1942) 66 CLR 535 ; YZ Finance Co Pty Ltd v Cummings [1964] HCA 12 ; (1964) 109 CLR 395. Aided by the 1999 Memorandum, I have determined that the entity referred to in s 152-30(2)(a) as "the other entity" does not include a partnership. Since s 152-30 defines when one entity is connected to another for the purposes of s 152-15(a)(ii), a partnership is not an "entity" for the purposes of par (a)(ii). It follows from the determination that a partnership is not an entity for the purpose of those provisions, that it was not the intention of the legislature that par (d) of the definition of "entity" in s 960-100 should apply to those provisions. Accordingly a contrary intention appears for the purposes of s 995. I answer the preliminary question: Is a partnership an "entity" within the meaning of that term as used in s 152-15(a)(ii) of the Act? No. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 18 August 2009 Counsel for the Applicant: F O'Loughlin Solicitor for the Applicant: Hall & Wilcox Counsel for the Respondent: A Broadfoot Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 28 July 2009 Date of Judgment: 18 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/880.html


case_outcome: related

case_text: When I delivered judgment in this matter on 2 May 2007 ( Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615) my orders were as follows: 1. The application filed by Access For All Alliance (Hervey Bay) Inc on 5 May 2005 be dismissed. 2. Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council's costs of and incidental to the application, to be taxed if not otherwise agreed. 2 At that time, Ms Banks for the applicant, Access For All Alliance (Hervey Bay) Inc ("the applicant") said that the applicant sought to be heard on the issue of costs in respect of the proceedings, and asked if I could reconsider that aspect of my judgment in terms of giving the applicant an opportunity to be heard. Mr Green for the respondent neither consented to nor opposed this course. While it is usual that costs follow the event, in the circumstances of this case I indicated to the parties that I would entertain receiving written submissions from the applicant as to costs, and a written reply from the respondent, and gave orders to this effect. 3 The application filed 5 May 2005 concerned a claim by the applicant that the respondent had contravened the Disability Standards made pursuant to the Disability Discrimination Act 1992 (Cth) (DD Act) in respect of bus stop infrastructure installed or substantially changed since 23 October 2002, and sought relief against the respondent pursuant to s 46PO Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC Act) and ss 31 and 32 DD Act. 4 The matter came before me on 5 September 2006 regarding an application filed 19 August 2005, by the respondent to the substantive proceedings, seeking orders that: • the application in the substantive proceedings be dismissed; and • the applicant pay the respondent's costs of and incidental to the application. 5 As I noted earlier, in my judgment I found in favour of the respondent and dismissed the application in the substantive proceedings with costs. 15 The applicant submits in summary: • The basis of the respondent's "strike out" claim, as found in its Statement of Facts and Contentions filed on 19 June 2006, was: 1. In the absence of an allegation of discrimination per se it was not possible for the Court to make a finding of unlawful conduct by the respondent. 2. The reference to equivalent access in the Disability Standards for Public Transport 2002 required that any allegation of a breach of the Standards be supported by evidence of discrimination. 3. The applicant required the Federal Attorney-General's consent to make a complaint of a breach of the Standards, which was the initiating process for the proceedings, or the Attorney-General should be the complainant. • in my judgment I dismissed all three contentions of the respondent ( Access For All Alliance [2007] FCA 615 at [22] - [34] , [70]-[73]) • the respondent did not in written submissions raise the contention that the applicant was not an "aggrieved person" or "affected person" for the purpose of s 46PO of the HREOC Act • while the applicant's application was dismissed, this was not a result of any contention or submission put by the respondent. Instead, the success of the respondent was based on the acceptance by the Court of the submissions filed by the Acting Disability Discrimination Commissioner ("the Commissioner"). 16 In summary, the respondent contends that: • although the relationship between the issue of standing and notions of "aggrieved person" or "affected person" for the purpose of s 46PO of the HREOC Act were not articulated in the written outline of submissions filed in support of the application, the relationship was properly developed in the course of oral argument on the day of the hearing • although some arguments put before the Court on behalf of the respondent in its application for summary dismissal were not accepted, this does not mean that the respondent was successful only in part or otherwise not successful. In this case, the application of the respondent for summary dismissal was wholly successful. 17 It is clear from my decision in Access For All Alliance [2007] FCA 615 that I did not accept a number of the respondent's submissions and that the submissions of the parties, in particular the written submissions, did not correspond with each other in that the parties raised quite different arguments in support of their positions. It is also clear that the submissions of the Commissioner were very helpful, in particular with regard to the issue of whether the rights which the applicant was seeking to assert were private or public rights, and with respect to issues relevant to "aggrieved person" in the meaning of the DD Act upon which my decision eventually turned. 18 In this case, the applicant had clearly anticipated that its standing would be a key issue and had made extensive written submissions on this point. However while it is true that the written submissions of the respondent focussed on issues of public as distinct from private rights, rather than standing under the DD Act, it is also the case that issues of standing under the DD Act in the context of whether the applicant was an "aggrieved person" were addressed at some length at the hearing by Mr Fleming QC for the respondent in oral submissions (TS QUD76/2006 5 September 2006 pp 16-21). As the respondent submitted (correctly in my view), submissions often take a more refined form when they are argued orally and with the benefit of outlines provided by opposing parties. It is this very process of opposing arguments which forms the basis of our adversarial system that assists courts in identifying and deciding the proper issues before it, and this is precisely what happened in this case. While clearly some arguments put before the Court by the respondent in its application for summary dismissal were not accepted, nonetheless it is not unusual for a successful party to advance a number of alternative arguments to the Court and be ultimately successful on only some of them. I agree with the respondent that this result does not mean that the respondent was "successful only in part" in this case. 28 Second, while I accept the submission of the applicant that its application was brought to effect change in the area of disability discrimination and could not be characterised as being for personal or financial benefit, I also note that the applicant commenced discrimination proceedings in the name of an incorporated association, where, as is clear from my judgment in Access For All Alliance [2007] FCA 615 , particularly at [47] [63], the weight of the case law is against such an organisation having standing to do so. The applicant has caused the respondent to incur costs in seeking to have these proceedings dismissed. 29 Third, although the objective of the applicant was to test the application of the Disability Standards in this case, and indeed the respondent had indicated that, had the litigation progressed, the constitutional validity of the Disability Standards would have been challenged, the issue actually in dispute between the parties at the time the case was dismissed was limited to the standing of the applicant to prosecute its claim at all. While this was an issue of considerable interest, and of importance to the parties in this case, the standing of entities such as the applicant to bring litigation of this nature cannot in my view be considered to be an issue of public interest so as to cause the Court to depart from the usual orders as to costs. 30 Fourth, as the judgment demonstrated, my decision was reached on the facts of the case before me, in light of the interpretation of the relevant legislation and consideration of the abundance of case law relevant to standing of incorporated associations to commence proceedings of this nature. Again, in my view these issues did not raise novel issues of law of public importance. 38 It appears that the respondent did attempt to engage with the applicant prior to the commencement of litigation and it is possible that the litigation in this case could have been avoided. However, one would expect that the same could be said in relation to almost all litigation. In relation to the respondent raising the issue of standing, as indicated in my judgment Access For All Alliance [2007] FCA 615 at [38] I did not accept the applicant's submissions at that time that the only avenue open to the respondent in the circumstances would have been to bring an application under the ADJR Act to challenge the acceptance by HREOC of the complaint. The standing of the applicant was addressed at the hearing by both parties, although not in written submissions by the respondent.


case_text: As noted by McHugh J in Oshlack 193 CLR at 97, the traditional exceptions to the usual order as to costs focussed on the conduct of the successful party where its conduct disentitled it to the beneficial exercise of the judicial discretion. His Honour in that case cited Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874 where Devlin J said: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."


case_text: The applicant referred in its submissions to the finding of the Full Court in Griffiths [2006] FCAFC 196 ; 157 FCR 112 and a number of cases to which reference was made by the Full Court in Griffiths 157 FCR at 116, namely: • Holder v Searle (1998) 44 IPR 1 • Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 • Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 • Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 • Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349. 21 Further, in relation to the other cases cited by the applicant, as the Full Court observed in Griffiths 157 FCR at 116: • in Holder v Searle 44 IPR 1 where the prosecution failed in two of the three informations it proffered against the defendant, and was only partially successful in respect of the remaining information, Spender J ordered that the prosecutor pay one-third of the defendant's costs • in Brimaud [1998] FCA 1392 where the applicant was successful in one of three claims against the respondents, and in respect of one of the unsuccessful claims the extent to which the length of the case was increased by the conduct of that issue was not insignificant, Emmett J ordered that the respondents pay 15% of the applicant's costs of the proceedings • in Esso 144 ALR 458 where the taxpayer's success overall was slight, Sundberg J made a broad-brush global order as to costs, determining that the taxpayer should pay five-sixths of the respondent's costs, and the respondent one-sixth of the taxpayer's costs • in Inn Leisure Industries 28 FCR 151 the applicant succeeded in one of three claims, however the Court considered in the circumstances of the case that the applicant should recover three-quarters of the costs of the application • in ACCC v Commercial and General Publications [2002] FCA 1349 , Heerey J observed that three-quarters of the trial was taken up with charges which were dismissed, and awarded the defendant half its costs.


case_text: First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs ( Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594). Similar considerations apply where, for example, the proceedings are instituted by a litigant with a view to protection of the environment ( Australian Conservation Foundation Incorporated v The Commonwealth of Australia [1979] HCA 1 ; (1980) 146 CLR 493; Save the Ridge Inc v Commonwealth (2006) 230 ALR 411). 31 Fifth, the fact that the applicant's claim was dismissed for want of standing distinguishes this case from cases such as Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, where the plaintiff did have standing and the merits of the case could be properly explored by the Court. Unlike in those cases, in the case before me issues of substance were not ultimately resolved. In this context I note comments of Aickin J in Australian Conservation Foundation 146 CLR at 512.


case_title: Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392


case_text: The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; Oshlack [1998] HCA 11 ; 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason ( Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 ; (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said: "In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a 'wilderness of single instances.'" (at [12])


case_title: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458


case_text: The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; Oshlack [1998] HCA 11 ; 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason ( Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 ; (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said: "In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a 'wilderness of single instances.'" (at [12]) 27 First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs ( Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594). Similar considerations apply where, for example, the proceedings are instituted by a litigant with a view to protection of the environment ( Australian Conservation Foundation Incorporated v The Commonwealth of Australia [1979] HCA 1 ; (1980) 146 CLR 493; Save the Ridge Inc v Commonwealth (2006) 230 ALR 411).


case_text: An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation ( Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19] ). 14 As pointed out by Black CJ and French J in Ruddock v Vadarlis 115 FCR at 235, where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed (cf Griffiths 157 FCR at 117). 19 The applicant referred in its submissions to the finding of the Full Court in Griffiths [2006] FCAFC 196 ; 157 FCR 112 and a number of cases to which reference was made by the Full Court in Griffiths 157 FCR at 116, namely: • Holder v Searle (1998) 44 IPR 1 • Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 • Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 • Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 • Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349. 20 In Griffiths 157 FCR at 116-117 the Full Court held that, notwithstanding the success of the appeal, the merits of the case before the Federal Magistrate below remained unchanged and in those circumstances the respondent should not be required to bear the burden of those costs below. The circumstances in Griffiths [2006] FCAFC 196 ; 157 FCR 112 bear no resemblance to the facts of the proceedings currently before me. 21 Further, in relation to the other cases cited by the applicant, as the Full Court observed in Griffiths 157 FCR at 116: • in Holder v Searle 44 IPR 1 where the prosecution failed in two of the three informations it proffered against the defendant, and was only partially successful in respect of the remaining information, Spender J ordered that the prosecutor pay one-third of the defendant's costs • in Brimaud [1998] FCA 1392 where the applicant was successful in one of three claims against the respondents, and in respect of one of the unsuccessful claims the extent to which the length of the case was increased by the conduct of that issue was not insignificant, Emmett J ordered that the respondents pay 15% of the applicant's costs of the proceedings • in Esso 144 ALR 458 where the taxpayer's success overall was slight, Sundberg J made a broad-brush global order as to costs, determining that the taxpayer should pay five-sixths of the respondent's costs, and the respondent one-sixth of the taxpayer's costs • in Inn Leisure Industries 28 FCR 151 the applicant succeeded in one of three claims, however the Court considered in the circumstances of the case that the applicant should recover three-quarters of the costs of the application • in ACCC v Commercial and General Publications [2002] FCA 1349 , Heerey J observed that three-quarters of the trial was taken up with charges which were dismissed, and awarded the defendant half its costs.


case_title: Holder v Searle (1998) 44 IPR 1


case_title: Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151


case_title: King v Yurisich (No 2) [2007] FCAFC 51

case_text: An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation ( Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19] ).


case_text: An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation ( Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19] ). 8 As noted by McHugh J in Oshlack 193 CLR at 97, the traditional exceptions to the usual order as to costs focussed on the conduct of the successful party where its conduct disentitled it to the beneficial exercise of the judicial discretion. His Honour in that case cited Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874 where Devlin J said: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." 9 The ambit of traditional exceptions has widened however in recent times in Australia to include, in limited cases, issues of public interest ( Oshlack [1998] HCA 11 ; 193 CLR 72, Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229) and certain circumstances where a litigant has succeeded only upon a portion of a claim (so that the court may find it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed) ( Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229). 10 The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; Oshlack [1998] HCA 11 ; 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason ( Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 ; (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said: "In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a 'wilderness of single instances.'" (at [12]) 11 Accordingly, the costs discretion of the Court is a discretion to be exercised judicially and not against the successful party except for some reason connected with the circumstances of the particular case ( Oshlack 193 CLR at 81 per Gaudron and Gummow JJ; Black CJ and French J in Ruddock v Vadarlis 115 CLR at 234). 12 The applicant has submitted that costs do not always follow the event where: • there has been success in part by a litigant: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; • the public interest so warrants a departure from the usual rule: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, Oshlack [1998] HCA 11 ; 193 CLR 72; • the conduct of the successful party at the trial was such as to unreasonably prolong the proceedings: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229. 25 It is clear that, in appropriate circumstances, the Court can make orders departing from the usual orders as to costs, on account of the litigation being in the public interest. The decision of the High Court in Oshlack [1998] HCA 11 ; 193 CLR 72 and the decision of the Full Court of the Federal Court in Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 are illustrations of this point. 26 In my view however this litigation could not be characterised as proceedings in the public interest as in Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 for the following reasons. 31 Fifth, the fact that the applicant's claim was dismissed for want of standing distinguishes this case from cases such as Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, where the plaintiff did have standing and the merits of the case could be properly explored by the Court. Unlike in those cases, in the case before me issues of substance were not ultimately resolved. In this context I note comments of Aickin J in Australian Conservation Foundation 146 CLR at 512. 34 Although McHugh J was in dissent in the decision in Oshlack 193 CLR, at 98 his Honour outlined traditional principles applicable to the award of costs in circumstances where the successful party had engaged in misconduct as follows: "'Misconduct' in this context means misconduct relating to litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart form the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." (cf Ruddock v Vadarlis 115 FCR at 236) 39 There is no misconduct that I can identify with respect to the constitutional arguments put by the respondent or the failure of the respondent to comply with the Judiciary Act 1903 (Cth). Indeed, overall the conduct of the respondent in the proceedings has not been out of the ordinary, in my view is not misconduct as described by McHugh J in Oshlack [1998] HCA 11 ; 193 CLR 72, and does not warrant a departure from the usual order as to costs for a successful litigant. 40 I cannot identify anything in the outcome of the case, the nature of the litigation nor the conduct of the parties which makes the circumstances such that I should reconsider my order as to costs in this case. THE COURT ORDERS THAT: 1. The order made 2 May 2007 that Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council's costs of and incidental to the application, to be taxed if not otherwise agreed, is confirmed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 29 June 2007 Counsel for the Applicant: K Eastman Solicitor for the Applicant: Public Interest Advocacy Centre Counsel for the Respondent: K Fleming QC and R Green Solicitor for the Respondent: MacDonnells As Amicus Curiae: Acting Disability Discrimination Commissioner Date of Hearing: 2 May 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/974.html


case_text: An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation ( Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19] ). 9 The ambit of traditional exceptions has widened however in recent times in Australia to include, in limited cases, issues of public interest ( Oshlack [1998] HCA 11 ; 193 CLR 72, Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229) and certain circumstances where a litigant has succeeded only upon a portion of a claim (so that the court may find it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed) ( Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229). 10 The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; Oshlack [1998] HCA 11 ; 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason ( Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 ; (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said: "In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a 'wilderness of single instances.'" (at [12]) 11 Accordingly, the costs discretion of the Court is a discretion to be exercised judicially and not against the successful party except for some reason connected with the circumstances of the particular case ( Oshlack 193 CLR at 81 per Gaudron and Gummow JJ; Black CJ and French J in Ruddock v Vadarlis 115 CLR at 234). 12 The applicant has submitted that costs do not always follow the event where: • there has been success in part by a litigant: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; • the public interest so warrants a departure from the usual rule: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, Oshlack [1998] HCA 11 ; 193 CLR 72; • the conduct of the successful party at the trial was such as to unreasonably prolong the proceedings: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229. 14 As pointed out by Black CJ and French J in Ruddock v Vadarlis 115 FCR at 235, where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed (cf Griffiths 157 FCR at 117). 25 It is clear that, in appropriate circumstances, the Court can make orders departing from the usual orders as to costs, on account of the litigation being in the public interest. The decision of the High Court in Oshlack [1998] HCA 11 ; 193 CLR 72 and the decision of the Full Court of the Federal Court in Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 are illustrations of this point. 26 In my view however this litigation could not be characterised as proceedings in the public interest as in Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 for the following reasons. 31 Fifth, the fact that the applicant's claim was dismissed for want of standing distinguishes this case from cases such as Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, where the plaintiff did have standing and the merits of the case could be properly explored by the Court. Unlike in those cases, in the case before me issues of substance were not ultimately resolved. In this context I note comments of Aickin J in Australian Conservation Foundation 146 CLR at 512. 32 Finally, unlike Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, the issues agitated by the applicant in this case did not raise matters concerning, for example, fundamental issues such as the liberty of individuals who were unable to take action on their own behalf to determine their rights. As was made clear by my judgment, the DD Act protects the rights of aggrieved persons and provides statutory authority for such persons to make complaints. A person with standing can commence an action pursuant to the DD Act as to the application and interpretation of the Disability Standards and the DD Act. While of importance, in my view the litigation in this case was not of itself of such "public interest" as to warrant a departure from usual rules as to costs. 33 Accordingly, I am not persuaded that the proceedings were of "public interest" to disentitle the successful respondent from an order for costs. 34 Although McHugh J was in dissent in the decision in Oshlack 193 CLR, at 98 his Honour outlined traditional principles applicable to the award of costs in circumstances where the successful party had engaged in misconduct as follows: "'Misconduct' in this context means misconduct relating to litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart form the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." (cf Ruddock v Vadarlis 115 FCR at 236)


case_text: First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs ( Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594). Similar considerations apply where, for example, the proceedings are instituted by a litigant with a view to protection of the environment ( Australian Conservation Foundation Incorporated v The Commonwealth of Australia [1979] HCA 1 ; (1980) 146 CLR 493; Save the Ridge Inc v Commonwealth (2006) 230 ALR 411).


case_title: Sluggett v HREOC [2002] FCA 1060


case_title: Tate v Rafin [2000] FCA 1582


case_title: Jess v Scott (1986) 12 FCR 187

case_text: In Jess v Scott (1986) 12 FCR 187 a Full Court of this Court held that, when exercising the discretion which I am called upon to exercise in respect of this matter under O 52 r 15(2), the longer the duration of the delay the more persuasive the purported " special reason " must be. In that case their Honours held (12 FCR 187 at 195) that: "It would require something very persuasive indeed to justify a grant of leave after, for example, a year;"


case_text: The Federal Magistrate then considered the third ground. Her Honour found that the Tribunal clearly considered the country information submitted by the applicant post-hearing as well as other independent country information. Her Honour held, in accordance with NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 , that the Tribunal had a discretion to determine what country information it had regard to. Her Honour was satisfied that it was open to the Tribunal to base its opinion on one particular piece of country information, in this case information suggesting that the protections were available in secular law remedies. 12 The learned Federal Magistrate dismissed the fourth ground on the basis that it amounted to a challenge to the fact finding of the Tribunal and thus constituted no more than an impermissible request for a merits review. 13 The application for an extension of time in which to file and serve a Notice of Appeal was filed in this Court on 29 July 2008. This is almost three years after the learned Federal Magistrate handed down her decision. As I have already observed, her Honour's decision was delivered on 18 October 2005. 14 In support of his application, the applicant has filed an affidavit, written out in his own hand, to which are attached various pages from the Court Book and a draft Notice of Appeal. Paragraphs 2 to 8 of that affidavit are in the following terms: "2. I am the spouse of [name] both declared husband and wife on 21-4-06. 3. I now understand that the Federal Magistrate Court dismissed my application reference SYG 502/2005. 4. I was asked by the Dept of Immigration to depart Australia and such action traumatized my wife and myself. 5. My community volunteer wrote to Hon Minister and the Officer of Ministerial Intervention Unit did not refer his letter to the Minister. 6. Based on the latest decision by their Honours Moore, Marshall & Lander JJ dated 3-7-08 I ask the Federal Court of Australia to accept my current review as I have ground to succeed. 7. I attach copies of the Court Book pages 42, 45, 46, 47, 49 and implore the Honourable Court to deal with my matter according to the decision of the Full Court NSD1936/2007. 8. Again and again I implore the Hon Court to accept my Review." 15 The draft Grounds of Appeal attached to this affidavit contained one ground of appeal only, namely: "The Refugee Review Tribunal failed to notify the authorized recipient as required by S.441G (Court Book FM pages 42, 45, 47, 49, 51 & 64)." 16 I note that the applicant informed me that the Department's request referred to in par 4 of his affidavit was made in 2008. The alleged trauma caused by that request is not and could not be advanced by the applicant as a reason for his delay in making the application which is before me today.


case_text: There is a reference in the applicant's affidavit in support of his application to a decision of the Full Court of this Court comprising Moore, Marshall and Lander JJ dated 3 July 2008. I thought that the applicant's reference was a reference to the decision of SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 , (2008) 102 ALD 541. My assumption has now been confirmed because the applicant has referred to that decision during the course of his oral submissions. 18 The Full Court in SZIZO [2008] FCAFC 122 , 102 ALD 541 held that the failure by the Tribunal to provide certain documents to the authorised recipient in the circumstances of that case resulted in jurisdictional error on the part of the Tribunal. 19 Section 441G(1)(b) of the Act requires that if there is an authorised recipient notified to the Tribunal, it is to that person, instead of the applicant, that the Tribunal must give any document that it would otherwise have given to the applicant. The expression " give ... a documen t" is given meaning by s 494B of the Act . 20 In the present case, as I understand the applicant's submission, it is the applicant's contention that: (1) There was an authorised recipient within the meaning of s 441G of the Act who had been authorised by him in late 2003 and 2004 and to whom relevant communications should have been sent; (2) Certain documents (being those identified in the affidavit filed in support of this application) were not sent to that authorised recipient but rather were sent to the applicant himself; and (3) Accordingly, there had been a breach by the Tribunal of s 441G(1)(b). 21 The pages to which the applicant has referred in support of that position established that in his Application for Review dated 15 December 2003, the applicant authorised a migration agent, Ms Therese Nicolas, to be his authorised recipient. Those pages also establish that a letter dated 17 December 2003 was sent to two persons with the primary addressee at the top of the letter being the applicant by name but the address in that place being the address of the migration agent nominated by him (Ms Nicolas). It is clear also that the letter appears to have been sent to the migration agent herself, at the same address. The notation that indicates that this occurred is a notation at the foot of the letter. 22 A further letter addressed in similar fashion was sent on 11 March 2004.


case_text: A " special reason " has been regarded by the Court as a circumstance which " takes the case out of the ordinary ." (See Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 , (2008) 101 ALD 211.) As I have already indicated, it seems to me that the applicant has not advanced any explanation for the inordinate delay in filing the present application let alone attempted to demonstrate by evidence and submission that there were special reasons applicable in the present case which justified an extension of the time within which he may lodge his Notice of Appeal. 40 It seems to me that I am also entitled to weigh in the balance the very weak nature of the proposed appeal which, as I have already indicated, is, at most, barely arguable. When I introduce that factor into the equation and weigh it up in light of the significant delay in the present case and the lack of explanation for that delay, I am compelled to conclude that the applicant has failed to make out the requirements that would justify an extension of time in the terms sought by him. 41 It really does seem to me that, over the last few years, the applicant has not been of the view that the learned Federal Magistrate's decision was wrong or even challengeable but rather that his interests were best served by pursuing administrative avenues which he considered were available to him. 42 For these reasons, I will dismiss the application with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 18 November 2008 The Applicant appeared in person Solicitor (Appearing) for the First Respondent: Ms L Weston of DLA Phillips Fox Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 10 November 2008 Date of Judgment: 10 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1694.html


case_text: Stephen McDougall earlier devised and operated a scheme known as "FullTank" which was wound up as an unregistered managed investment scheme by order of Young J on 20 April 2006: Australian Securities and Investments Commission v McDougall (2006) 229 ALR 158. 7 Under the FullTank scheme participants would pay a flat "Membership Fee" and a "Plan Fee". They were issued with a debit card which could be used to purchase fuel and other goods at service stations through the EFTPOS system. The debit card would be loaded each week with a nominated amount for purchases. The promise held out was that over a given period participants could receive an effective discount of 50 per cent. For example, for a Plan Fee of $250 the participant was promised $25 worth of fuel per week for 20 weeks. 8 The FUELbanc scheme also involves debit cards issued for the purchase of fuel. Its distinguishing feature, however, is the use of a barter system known as "E Banc" in which goods and services are exchanged for barter units known as "trade dollars" as well as ordinary Australian currency. E Banc is operated by E Banc Trade Pty Ltd. That company is not connected with the defendants and is not involved in the present proceeding. E Banc maintains a central register where its members' barter units and balances and unit transfers are recorded. 60 A number of courts have made declarations in cases involving contraventions which carried criminal penalties, albeit with no express discussion of the point raised in Intertax . Nevertheless, the consistent practice is a matter of considerable weight. The cases are: Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 (Queensland Court of Appeal), Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd (2006) 57 ACSR 553 (Hargrave J, Supreme Court of Victoria), McDougall (Young J, Federal Court), Australian Securities and Investments Commission v Preston [2005] FCA 1805 (Finkelstein J, Federal Court), Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68 (Jones J, Supreme Court of Queensland), Australian Securities and Investments Commission v Young [2003] QSC 29 ; (2003) 21 ACLC 655 (Muir J, Supreme Court of Queensland), Pegasus (Davies AJ, Supreme Court of New South Wales), Australian Securities and Investments Commission v Hutchings (2001) 19 ACLC 1454 (Windeyer J, Supreme Court New South Wales), Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 (Austin J, Supreme Court of New South Wales). 61 I conclude that I should not follow Intertax . It is appropriate to make the declarations sought. It is sometimes said that a declaration is an appropriate way of marking the Court's disapproval of the contravening conduct: see eg McDougall at [55]. While certainly the conduct of the corporate defendants and Stephen McDougall has been reprehensible, the actual declarations do no more than declare the bare facts that the defendants operated an unregistered managed investment scheme and carried on a financial services business without a licence. The declarations would be equally appropriate if the defendants' business had been carried on with exemplary prudence and meticulous bookkeeping. A more satisfactory rationale may be that the right declared will be a public right. In Tobacco Institute (at 98) Sheppard J said that the declaration in that case would " ... be a declaration of right because the right which will be declared will be a public right, namely, the right of the public not to be misled or deceived by factual statements in an advertisement concerning the effects of passive smoking." In the present case the legislation contravened protects public rights by regulating the conduct of those who seek investment from the public. Declarations as to the contraventions provide a formal vindication of the law's operation.


case_text: The "body corporate" exception (see [25] above) does not apply. The purpose of this exception is to ensure that the ordinary engagement of a company in commercial activities does not come within the managed investment scheme regime. The contract created by a company's constitution (see now Corporations Act s 140(1)) only affords rights or imposes obligations on a member in his or her capacity as a member: Hickman v Kent or Romney Marsh Sheep Breeders' Association [1915] 1 Ch 881 at 897. The essence of the FUELbanc scheme is that a participant provides "trade dollars" and cash in return for a promise to provide credit for the purchase of fuel over a future period. The legal foundation for this arrangement is not membership of the company but the contractual relationship between the company and the participant. Relevantly for present purposes, the participant becomes a member of the scheme whether or not he or she becomes a member of the company. (In any event, ASIC has been unable to discover any membership registers, minutes or other records which might prove that participants in fact became members.) 33 Section 763B of the Corporations Act provides: "For the purposes of this Chapter [ie Chapter 7 Financial Services and Markets], a person (the investor) makes a financial investment if: (a) the investor gives money or money's worth (the contribution) to another person and any of the following apply: (i) the other person uses the contribution to generate a financial return, or other benefit, for the investor; (ii) the investor intends that the other person will use the contribution to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated); (iii) the other person intends that the contribution will be used to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated); and (b) the investor has no day-to-day control over the use of the contribution to generate the return or benefit." 34 Participants in the FUELbanc scheme are making a "financial investment" within the meaning of s 763B because they give money to FUELbanc which uses the contribution to generate a financial return or other benefit for the participant. The participant intends that FUELbanc will use the contribution to generate a financial return or other benefit for him or her and FUELbanc intends that the contribution will be used to generate a financial return or other benefit for the participants. In all these respects the contribution is caught even if no return or benefit is in fact generated.


case_text: In respect of the FUELbanc unregistered managed investment scheme, was Stephen McDougall a person "operat(ing)" the scheme within the meaning of s 601EE? As Davies AJ said in Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [55]: "The term [operate] is not used to refer to ownership or proprietorship but rather to the acts which constitute the management of or the carrying out of the activities which constitute the managed investment scheme." 60 A number of courts have made declarations in cases involving contraventions which carried criminal penalties, albeit with no express discussion of the point raised in Intertax . Nevertheless, the consistent practice is a matter of considerable weight. The cases are: Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 (Queensland Court of Appeal), Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd (2006) 57 ACSR 553 (Hargrave J, Supreme Court of Victoria), McDougall (Young J, Federal Court), Australian Securities and Investments Commission v Preston [2005] FCA 1805 (Finkelstein J, Federal Court), Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68 (Jones J, Supreme Court of Queensland), Australian Securities and Investments Commission v Young [2003] QSC 29 ; (2003) 21 ACLC 655 (Muir J, Supreme Court of Queensland), Pegasus (Davies AJ, Supreme Court of New South Wales), Australian Securities and Investments Commission v Hutchings (2001) 19 ACLC 1454 (Windeyer J, Supreme Court New South Wales), Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 (Austin J, Supreme Court of New South Wales).


case_text: This passage was applied in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488 at [32] and in McDougall at [34]. 44 Here there is no doubt that Stephen McDougall formulated the scheme and managed its day to day operations. He was thus one of those operating the scheme. 45 As to Stephen McDougall's liability for carrying on a financial services business without a licence, the same reasoning applies. In any event he would clearly have aided, abetted, counselled and procured FUELbanc to contravene the Act: s 1324(1)(c).


case_text: The jurisdiction of the Federal Court to make declarations is founded in s 21(1) of the Federal Court of Australia Act 1976 (Cth) which provides: "The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed." As a superior court, the Federal Court would also have inherent power to grant declaratory relief: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581.