case_text: This principle represents the position in Australia: Luck at [8]. That decisions of Federal Magistrates pursuant to r 13.10 FMCR are interlocutory judgments is also beyond doubt, as pointed out by Lander J in Rana v University of South Australia [2004] FCA 559 at [6] - [15] . 47 Applications for leave to appeal to the Court, like applications for an extension of time within which to institute an appeal to the Court, may be heard and determined by a single judge of this Court: s 25(2) Federal Court of Australia Act 1976 (Cth). Given the length of time which has passed since the decision of Jarrett FM in this case, it is clear that the statutory time limits for making application for leave to appeal have long expired and it would be necessary to obtain an order of the Court dispensing with the time limits (note O 52 r 5(2)(a) and r 5(3) Federal Court Rules , and comments of Lander J in Rana v University of South Australia (2004) FCA 559 par 3).


case_outcome: cited

case_text: In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6] ), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27] ), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21] ). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.


case_title: SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634


case_outcome: applied

case_text: The principles applicable to grant of leave under s 24(1A) are reasonably well settled. The Full Court of the Federal Court in Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542 described the approach of the Court to such applications in the following terms: 'In accordance with the practice frequently adopted by the Court in applications for leave to appeal from interlocutory orders, we permitted counsel for both parties to address us, not only on that application, but on the grounds of appeal sought to be advanced, assuming, for the purposes of the argument, that leave to appeal had been granted. With the benefit of a full appellate argument, we come to the conclusion, for the reasons we give below, that in some respects but not in others, the judgment was attended by sufficient doubt to warrant it being reconsidered; and that, in those respects, substantial injustice would result if leave were to be refused. We propose to grant leave to appeal accordingly.' 49 The issues I have considered in the context of whether to allow the applicant an extension of time, particularly in relation to the merits of the case, are similar to the issues I would need to consider in an application for leave to appeal in this case. In my view, for the reasons I outlined earlier in this judgment in assessing the merit of the applicant's case, the decision of the learned Federal Magistrate to summarily dismiss the applicant's claim against the second respondent in respect of P II Div 3 SD Act is attended by sufficient doubt to warrant it being reconsidered. Accordingly, I am prepared to grant leave to the applicant to appeal the decision of Jarrett FM. THE COURT ORDERS THAT: 1. The application for leave to file and serve out of time a notice of appeal from the decision of Jarrett FM of 12 October 2005 is granted. 2. Leave to appeal from the decision of Jarrett FM of 12 October 2005 is granted. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 6 July 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: Mr TJ Bradley Solicitor for the Second Respondent: Brian Bartley & Associates Date of Hearing: 18 April 2006 Date of Judgment: 6 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/869.html


case_text: The appellant submitted that, even if, upon analysis, she feared persecution only by a non-State actor for non-Convention reasons, the Tribunal erred by failing to consider whether there had been a failure by the Indonesian authorities, for Convention reasons, to provide protection to her. The appellant relied on the observation in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (' S152 ') that a state's inability to control the conduct of its police force may amount to a sufficient reason for a person to be unwilling to avail herself of the protection of her country of nationality once outside the country. That, however, assumes that a Convention reason is implicated. In oral submissions, the appellant submitted that, had the Tribunal applied the correct test, it would have been open to it to conclude that the failure by the authorities to protect the appellant was for a Convention reason: the High Court's decision in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 (' Khawar ') is authority for the proposition that criminal activity committed by a private individual, which is tolerated or condoned by the State because it systematically discriminates on Convention grounds, may amount to persecution. 40 More specifically and authoritatively, in Khawar it was recognised that, as Gleeson CJ put it (at [30] [31]): 'The references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation. In Ex parte Shah , Lord Hoffmann, in giving the example of the Jewish shopkeeper set upon with impunity by business rivals in Nazi Germany, referred to the failure of the authorities to provide protection, based upon race, as an "element in the persecution". The same expression was used by Lord Hope of Craighead in the passage from Horvath quoted above. Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group , if it be the case that women in Pakistan may be so described.' (Footnotes omitted, emphasis added.) See also Khawar at [79]-[80], [87] and [114] ff. 41 S152 effected no modification of Khawar . 43 The Tribunal had before it material from the appellant's father which she and her father had wished to have considered by the relevant Australian authorities. Her father suggested that he was treated differently and less favourably, when he complained, by the local police, Muslims, because he was Chinese. It was elsewhere asserted in the materials relied on by the appellant that all the police are Muslims. The Refugee Advice and Casework Service (Australia) Inc ('RACS') had submitted on behalf of the appellant that she 'fears that the police and authorities in Indonesia will not protect her because of the fact she is a Christian Chinese...'. Her solicitor had also submitted that the appellant's father had provided a statement detailing his experience with the police: 'He reported the matter to the police who took no action, he opined that it was due to the fact that he and his daughter were Chinese whereas the police and the rapist were Muslim.' The appellant's solicitor, citing Khawar (at [29]), submitted that '[o]n its face, this is a further case of persecution. Even if the original rape was not for a convention reason, the failure of the authorities to investigate and take action in respect of the rape can amount to persecution if such inaction was motivated by questions of race.' The Tribunal Member who first heard the appellant's case recorded that the appellant had 'also stated that her father and brother had reported the assault to the police but they took no action. The Indonesian authorities were not interested in protecting her.' The Tribunal Member asked the appellant 'how, in her view, the police could have done anything without more information.' According to the Member, the appellant did not respond to that question, but 'reiterated that the complaint was ignored because she was of Chinese descent so was ignored. There were fights between Muslims and Chinese Christians.' 44 The Tribunal appears to have accepted the appellant's claim that her attacker was a threat to her on account of her complaint to the police. It was also apparently accepted, at least, that the appellant had been raped; that this had been reported to the police; that they had, at best, done nothing useful directed towards apprehending the rapist, and that she had been raped again by the same man on account of the complaint to the police. 45 In such circumstances, it behoved the Tribunal, in light of the several ways in which the appellant put her case, to examine whether the appellant might qualify for refugee status. There is nothing abstruse or indirect in the proposition, which readily springs to mind, that despite anti-racist sentiments expressed and progress initiated at the highest levels of government, these may have had little effect at local police level.


case_text: The appellant submitted that, even if, upon analysis, she feared persecution only by a non-State actor for non-Convention reasons, the Tribunal erred by failing to consider whether there had been a failure by the Indonesian authorities, for Convention reasons, to provide protection to her. The appellant relied on the observation in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (' S152 ') that a state's inability to control the conduct of its police force may amount to a sufficient reason for a person to be unwilling to avail herself of the protection of her country of nationality once outside the country. That, however, assumes that a Convention reason is implicated. In oral submissions, the appellant submitted that, had the Tribunal applied the correct test, it would have been open to it to conclude that the failure by the authorities to protect the appellant was for a Convention reason: the High Court's decision in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 (' Khawar ') is authority for the proposition that criminal activity committed by a private individual, which is tolerated or condoned by the State because it systematically discriminates on Convention grounds, may amount to persecution. 31 In considering whether effective state protection was available, the appellant submitted that the Tribunal was required to consider whether there was a reasonably effective and impartial police force and a reasonably impartial system of justice: see S152 at [26]. The appellant argued that the Tribunal's reasoning reveals no consideration of whether effective state protection was available to the appellant 'on the ground' or at a 'micro' level, as was required: the question was, what would be available as a practical matter to a woman in the position of the appellant? 32 The appellant submitted that, had the Tribunal really questioned whether there was an effective and impartial police force and a reasonably impartial system of justice, as required by S152 , it would have dealt with the suggestion by the appellant's father that the police had not responded to his complaint of his daughter's rape because she is Chinese, and that the appellant was raped again after the complaint. 34 The Minister further argued that in a case of persecution by non-state agents the question of state protection may be relevant at three stages of the inquiry: whether the fear is well-founded; whether the conduct giving rise to the fear is persecution, and; whether the appellant is unable, or, owing to fear of persecution, unwilling, to avail herself of the protection of her state: S152 per Gleeson CJ, Hayne and Heydon JJ at [21]. It was for this reason that the High Court allowed an appeal from the judgment of the Full Court of the Federal Court in S152 that turned on a finding, similar to the appellant's argument in this appeal, that the Tribunal erred in failing to determine whether there was protection available 'in a practical sense'. 35 However, while the 'ability of the state to discharge its obligation to protect its citizens', may , as counsel for the Minister submitted, be relevant at three stages of the inquiry, it is here, in my view, relevant to the second question identified by Gleeson CJ, Hayne and Heydon JJ, viz 'whether the conduct giving rise to the fear is persecution' (at [21]). If the state, despite the good intentions of its leaders, is not able, at what might be called the operational or grass-roots level, to have its operatives provide an acceptable level of protection against serious harm, and the dereliction of those operatives has as its basis their discrimination of a Convention kind against the appellant, that situation, as Hale LJ put it in Horvath v Secretary of State for the Home Department [2000] 1 NLR 15, 'may turn the acts of others [ie non-state actors] into persecution for a Convention reason' (at 52 and quoted with approval by Lord Hope of Craighead in the appeal to the House of Lords (see [2000] UKHL 37 ; [2001] 1 AC 489 at 497)). 36 So much was uncontroversial in S152 . S152 was a case where harm had been inflicted by non-state actors for Convention reasons. The majority in the High Court took the view that (at [26]): ' [n] o country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged ... evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.' 37 In the present case, by contrast, (if the matter were sufficiently raised by the appellant), although the serious harm done to her by a non-state agent was not itself inflicted for a Convention reason, she might nevertheless be refugee if, for Convention reasons, namely, anti-Chinese racism merging into antipathy for Chinese women considered as a social group exhibited by the local police, the State failed, to provide a 'reasonably effective and impartial police force' (cf S152 at [26]) at a grass-roots level. That is, the State's weakness or incompetence, whatever its leaders' good intention, in having its norms carried out, might have permitted the local police to engage in Convention persecution themselves, by failure (for Convention reasons) to prevent and act against those who would cause the appellant serious harm. 38 As I read S152 , nothing in it, or otherwise in principle, denies that such a claim, if made out, may constitute the appellant a refugee. She would be in her predicament because of the risk of serious harm coming to her for a Convention reason. As the Convention definition puts it (see Article 1(A)(2)), she would be: '...owing to well-founded fear of being persecuted for [Convention reasons] ... outside the country of [her] nationality and ... , owing to such fear ... unwilling to avail [herself] of the protection of that country'. 39 As the 'Michigan Guidelines', developed by Professor Hathaway and others, put it: 'The causal link between the applicant's predicament and a Convention ground will be revealed by evidence of the reasons which led either to the infliction or threat of a relevant harm, or which cause the applicant's country of origin to withhold effective protection in the face of a privately inflicted risk. Attribution of the Convention ground to the applicant by the state or non-governmental agent of persecution is sufficient to establish the required causal connection.' (See: Hathaway, 'The Michigan Guidelines on Nexus to a Convention Ground', Michigan Journal of International Law (2002) vol 23, pp 211-222 at 215.) 41 S152 effected no modification of Khawar .


case_outcome: followed

case_text: If a matter is not mentioned in a Tribunal's findings, this entitles a court to infer that the matter was not considered by the Tribunal to be material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ (with whom Gleeson CJ agreed) at [69]). That the Tribunal Member engaged in no discussion of questions of those kinds suggests that the psychological aspects of the practical realities facing the appellant were not present to his mind. Given the strangeness of such matters not having been mentioned if they were considered, in my view it is appropriate to draw the inference that they were not considered. I do not wish to seem overcritical. The appellant's case was not a simple one. She had, according to the Tribunal, embroidered some facts and the Tribunal Member thought that a friend who gave evidence was suggesting that, even in the Australian context, she was less robust a person than the Tribunal considered her to be. Nevertheless, it is notorious that in the last 20 years or so the high potential for sexual assault, let alone repeated instances of it, to cause the victim serious psychological difficulties, has become widely accepted. I think that the kinds of potential difficulties to which I have referred were overlooked. There has in my opinion been, as in NAIZ , a failure by the Tribunal to ask itself (as Branson J put it) 'the right questions'.


case_text: The unexamined question was, in my opinion, sufficiently clearly an integer of her case to require consideration. If it was not clearly and expressly so asserted in the ways referred to at [44] above, in my view it clearly arose on the materials before the Tribunal. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 (' NABE ') the Full Court said (at [61]): 'We are of the view that the observations by Merkel J in Paramananthan , by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov , extends to reviewing the delegate's decision on the basis of all the materials before it.' 51 Earlier the Full Court had approved (at [60]) some pertinent observations by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17]-[18] : '...But this does not mean that the application is to be treated as an exercise in nineteenth century pleading. ... The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.' It would be strange if a claimant of refugee status were to be denied a right to have the substance of her claim considered, including the different ways in which the Convention might apply to her, because she had failed clearly to analyse those ways in her application and supporting material, although she had clearly enough delineated facts that might attract the salvation of the Convention. It is not likely that the Full Court in NABE intended such a thing. The Full Court was absolving the Tribunal from any duty to engage in subtle teasing out of hypotheses that only abstrusely arise from an applicant's account of the circumstances that have led to the claim of refugee status. That is not the position here. 52 In my opinion, nothing in NABE was intended to deny, nor can it be denied, that to determine whether a claim 'clearly arises' on the material before a decision-maker, the decision-maker must fully understand the claim being made. That, in turn, may in some cases make it necessary for the decision-maker to analyse what the appellant has said in terms of possible Convention categories. That was the position here. 53 In my opinion, failure to consider this matter constituted a constructive failure to exercise the Tribunal's jurisdiction. 54 Nevertheless, whether such error ultimately has the effect of invalidating the Tribunal's decision depends on whether there was otherwise an independent, jurisdictionally robust basis, among those found by the Tribunal, for denying the appellant's claim. In particular, the finding that the appellant feared persecution at the hands of one local man and that the appellant could avoid such threat as he might pose by relocating elsewhere in Indonesia is of potential significance here.


case_text: In NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 (' NAIZ ') at [22], Branson J (with whom North J agreed) found jurisdictional error on the part of a Tribunal Member who, though acknowledging that internal relocation should be 'reasonable' in the circumstances: '...did not, as ... Randhawa [at] [16] ... requires, give consideration to the practical realities facing the appellant [a widow of advancing years] with respect to accommodation and care should she seek to relocate within Fiji ... the Tribunal was required to give consideration to how, in a practical sense, the appellant could be expected to relocate within Fiji.' 61 Here, the appellant was a Chinese Christian widow with young children who had been twice raped and who had never lived in Indonesia outside Jakarta. True it is that she was enterprising and employable. But on the material accepted by the Tribunal, anti-Chinese sentiment runs deep in Indonesia and the vulnerability of women to rape appears, from the Tribunal's findings, to be high. 62 It requires little empathy to understand that, although the appellant's precise fear of persecution as identified by the Tribunal relates to one man in Jakarta, she may well now suffer profound psychological difficulty in readjusting to Indonesian society and adjusting to a new place of residence in Indonesia at some place where, ex hypothesi , she appears likely to have no close family support. To observe that she had suffered an 'ordeal', yet appeared capable in Australia, where the social environment is entirely different and she has family support, is simply not to acknowledge the major difficulty in the 'practical realities', both psychological and physical, that now would confront her if returned to Indonesia. Who would befriend her? What support, if any, would be available? Would she be able to speak freely about her troubles (there is a suggestion in her materials, unexplored by the Tribunal, that even in Chinese-Indonesian circles shame attaches to a sexually assaulted woman)? Is a Chinese widow on her own in Indonesia especially apt to attract unwelcome sexual advances? 63 If a matter is not mentioned in a Tribunal's findings, this entitles a court to infer that the matter was not considered by the Tribunal to be material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ (with whom Gleeson CJ agreed) at [69]). That the Tribunal Member engaged in no discussion of questions of those kinds suggests that the psychological aspects of the practical realities facing the appellant were not present to his mind. Given the strangeness of such matters not having been mentioned if they were considered, in my view it is appropriate to draw the inference that they were not considered. I do not wish to seem overcritical. The appellant's case was not a simple one. She had, according to the Tribunal, embroidered some facts and the Tribunal Member thought that a friend who gave evidence was suggesting that, even in the Australian context, she was less robust a person than the Tribunal considered her to be. Nevertheless, it is notorious that in the last 20 years or so the high potential for sexual assault, let alone repeated instances of it, to cause the victim serious psychological difficulties, has become widely accepted. I think that the kinds of potential difficulties to which I have referred were overlooked. There has in my opinion been, as in NAIZ , a failure by the Tribunal to ask itself (as Branson J put it) 'the right questions'.


case_text: In NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 I gave my views as follows (at [162]-[166]), Conti J generally agreeing: 'Quite apart from a power to receive new evidence, what is the position of an appellate court rehearing a matter as to questions of law available on the materials before the trial judge but not raised at first instance? An appellant wishing to raise fresh legal questions cannot, in the first place, be in a worse position than one seeking to augment the evidence itself. Secondly, a party victorious at first instance is, in any case, liable to be defeated by a change in the law occurring before the appeal is heard; that, indeed, is conventionally given as the main practical difference between a "strict" appeal and one by way of rehearing. The result of a new legal point being successfully raised is no harder for the litigant thereby defeated than if the defeat follows from some legal point newly raised. Thirdly, however, there is undoubtedly great, general value in considerations of finality of litigation acting as a brake on appellate intervention, thereby preserving the integrity of the trial as the normal arena for final disposition of that case. As a general statement of principle there is no conflict between what the Full Court approved in Branir and the approach in the cases next referred to. In my respectful view, the correct approach, and the one generally adopted in practice in this Court, is that succinctly expressed in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (" VUAX ") by Kiefel, Weinberg and Stone JJ (at [46] [48]): "Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs ; and Branir ... at [20]-[24] and [38]. In Coulton ..., Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7 : 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused." (Emphasis added.) To similar effect, in Iyer ... Heerey, Moore and Goldberg JJ said (at [22] [24]): "... We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant. Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the [Tribunal] to make it clear from the outset what are the substantive grounds of review relied upon .... However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised . That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge ." (Emphasis added.) ... Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?' (Original emphasis).


case_text: The present and well-entrenched state of Full Federal Court authority is that a claim to refugee status is not established by those who could reasonably avail themselves of the real protection of the country of nationality elsewhere within their country of nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (' Randhawa' ) per Black CJ at 440 (cf my remarks in dissent in NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 320 ; (2004) 140 FCR 270 at [8] ). The question is whether the person can relocate to another area of the country, and, it is said, whether he or she could reasonably be expected to do so. However, answering this question is influenced by the principle that: 'notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person' (per Black CJ in Randhawa at 442).


case_text: At the hearing, counsel for the appellant relied on Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, suggesting that it is authority for the principle that the requirements of case management are relevant considerations, but they cannot be used to prevent a party from arguing a ground that is fairly arguable. Further, counsel suggested that there is a level of disagreement in this Court regarding the approach to be taken to this issue. In doing so, counsel referred to the judgment of Allsop J in Branir v Owston Nominees (No 2) [2001] FCA 1833 ; (2001) 117 FCR 424 at 440, in which his Honour expressly declined to comment on the approach taken by Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. In that case, their Honours gave consideration to the merits of the new grounds to be raised. On this point, counsel also referred to the discussion in VUAX at [48] where, it appears, the Full Court accepted that the merits of the new grounds are to be given consideration. The appellant argued that a party should be permitted to raise an arguable case provided any prejudice to other parties could be compensated by costs. In addition, the appellant referred to the judgment of R D Nicholson J in Jones , where his Honour stated (at 48) that whether or not the Immigration Review Tribunal had complied with its statutory duty 'raises a point of law in the interests of justice which supports and outweighs, in all the circumstances, the public interest in the finality of litigation in these particular circumstances'. Jenkinson J (with whom Carr J agreed) similarly stated (at 37) that the '[o]bservance of such [statutory] requirements by a tribunal administering important and publicly scrutinised immigration laws should be encouraged by this Court. A determination whether...the Tribunal satisfied those requirements is in my opinion expedient and in the interests of justice.'


case_text: The present and well-entrenched state of Full Federal Court authority is that a claim to refugee status is not established by those who could reasonably avail themselves of the real protection of the country of nationality elsewhere within their country of nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (' Randhawa' ) per Black CJ at 440 (cf my remarks in dissent in NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 320 ; (2004) 140 FCR 270 at [8] ). The question is whether the person can relocate to another area of the country, and, it is said, whether he or she could reasonably be expected to do so. However, answering this question is influenced by the principle that: 'notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person' (per Black CJ in Randhawa at 442). 57 The appellant submitted that the Tribunal incorrectly took a general approach that there must be a safe haven somewhere in Indonesia, and did not consider, as a matter of practical reality, the issues raised by the appellant as required ( Randhawa at 443). The appellant submitted that the specific issues which the Tribunal was obliged, but failed to consider were: 1. the psychological difficulties of continuing to live anywhere within a country and culture in which the appellant had experienced rape on two occasions; 2. the appellant's need, as a single mother (her husband having died in January 2001), for the support of her family; 3. the appellant may face discrimination and/or harm living as a single woman with children without any family protection; 4. the appellant has never lived outside Cenkarang (apparently a suburb of Jakarta) in Indonesia as a single woman; and 5. the only family the appellant has who are outside Cenkarang live in Australia. The Tribunal did not advert to the fact that all of the appellant's relatives living in Indonesia live in Cenkarang. 58 The Tribunal also failed to take into account its finding that the incidence of rape of women in Indonesia generally is a problem and the fact of a general social prejudice against ethnic Chinese Indonesians. These are probable issues for the appellant, who would effectively be without family support. In oral submissions counsel added that the Tribunal did not take into account that the appellant may have her children with her if she relocates, unlike her experience in Australia, which had encouraged the Tribunal to regard her as a relatively resilient person. 59 The Minister denied the claim that the Tribunal merely assumed there was a safe haven within Indonesia, and argued that it is for the Tribunal to determine the significant issues in assessing the matter of relocation. It cannot be assumed that, because the Tribunal has failed to refer expressly to an issue, it has failed to consider it. The proper inference is that the issues referred to by counsel for the appellant were not considered by the Tribunal to be as significant as those the Tribunal mentioned. Also, of the issues listed by the appellant's counsel, factors (1) and (3) go to whether the appellant would want to live in Indonesia at all, rather than to whether she could relocate. Issues (2) and (5) concern the appellant's wish to have family support, which was acknowledged by the Tribunal, and issue (4) could properly be considered not to carry great weight, given that the appellant had successfully made her way in the unfamiliar cultural environment in Australia. The brevity, it was submitted, of the Tribunal's reasons on this matter 'does not detract from the breadth of the consideration'.


case_outcome: approved

case_text: Earlier the Full Court had approved (at [60]) some pertinent observations by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17]-[18] : '...But this does not mean that the application is to be treated as an exercise in nineteenth century pleading. ... The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.' It would be strange if a claimant of refugee status were to be denied a right to have the substance of her claim considered, including the different ways in which the Convention might apply to her, because she had failed clearly to analyse those ways in her application and supporting material, although she had clearly enough delineated facts that might attract the salvation of the Convention. It is not likely that the Full Court in NABE intended such a thing. The Full Court was absolving the Tribunal from any duty to engage in subtle teasing out of hypotheses that only abstrusely arise from an applicant's account of the circumstances that have led to the claim of refugee status. That is not the position here.


case_text: Did the Tribunal fail to apply the correct legal test, or fail to take relevant considerations into account, on the question of the availability of State protection, in relation to future protection by the police? 6 The appellant was legally represented at the hearing before the Federal Magistrates Court, but submitted in this Court that the new grounds were not raised there in circumstances where her solicitor's grasp of the legal complexities appeared to be less than fully adequate. The appellant submitted, and the first respondent ('Minister') agreed, that where it is expedient and in the interests of justice to grant leave to raise new grounds on appeal, the Court should do so. The appellant cited VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] (' VUAX' ) (and the cases there cited) in support of her request for leave. 10 At the hearing, counsel for the appellant relied on Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, suggesting that it is authority for the principle that the requirements of case management are relevant considerations, but they cannot be used to prevent a party from arguing a ground that is fairly arguable. Further, counsel suggested that there is a level of disagreement in this Court regarding the approach to be taken to this issue. In doing so, counsel referred to the judgment of Allsop J in Branir v Owston Nominees (No 2) [2001] FCA 1833 ; (2001) 117 FCR 424 at 440, in which his Honour expressly declined to comment on the approach taken by Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. In that case, their Honours gave consideration to the merits of the new grounds to be raised. On this point, counsel also referred to the discussion in VUAX at [48] where, it appears, the Full Court accepted that the merits of the new grounds are to be given consideration. The appellant argued that a party should be permitted to raise an arguable case provided any prejudice to other parties could be compensated by costs. In addition, the appellant referred to the judgment of R D Nicholson J in Jones , where his Honour stated (at 48) that whether or not the Immigration Review Tribunal had complied with its statutory duty 'raises a point of law in the interests of justice which supports and outweighs, in all the circumstances, the public interest in the finality of litigation in these particular circumstances'. Jenkinson J (with whom Carr J agreed) similarly stated (at 37) that the '[o]bservance of such [statutory] requirements by a tribunal administering important and publicly scrutinised immigration laws should be encouraged by this Court. A determination whether...the Tribunal satisfied those requirements is in my opinion expedient and in the interests of justice.' 11 In NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 I gave my views as follows (at [162]-[166]), Conti J generally agreeing: 'Quite apart from a power to receive new evidence, what is the position of an appellate court rehearing a matter as to questions of law available on the materials before the trial judge but not raised at first instance? An appellant wishing to raise fresh legal questions cannot, in the first place, be in a worse position than one seeking to augment the evidence itself. Secondly, a party victorious at first instance is, in any case, liable to be defeated by a change in the law occurring before the appeal is heard; that, indeed, is conventionally given as the main practical difference between a "strict" appeal and one by way of rehearing. The result of a new legal point being successfully raised is no harder for the litigant thereby defeated than if the defeat follows from some legal point newly raised. Thirdly, however, there is undoubtedly great, general value in considerations of finality of litigation acting as a brake on appellate intervention, thereby preserving the integrity of the trial as the normal arena for final disposition of that case. As a general statement of principle there is no conflict between what the Full Court approved in Branir and the approach in the cases next referred to. In my respectful view, the correct approach, and the one generally adopted in practice in this Court, is that succinctly expressed in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (" VUAX ") by Kiefel, Weinberg and Stone JJ (at [46] [48]): "Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs ; and Branir ... at [20]-[24] and [38]. In Coulton ..., Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7 : 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused." (Emphasis added.) To similar effect, in Iyer ... Heerey, Moore and Goldberg JJ said (at [22] [24]): "... We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant. Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the [Tribunal] to make it clear from the outset what are the substantive grounds of review relied upon .... However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised . That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge ." (Emphasis added.) ... Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?' (Original emphasis).


case_title: Frosch v Comcare [2004] FCA 1642

case_text: The Tribunal Member referred to the discussion of the Tribunal's jurisdiction by the Full Court in Lees v Comcare (1999) 56 ALD 84, which contained the observation (at [39]) that although the Tribunal has the powers of the original decision-maker under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), they are: 'powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the [Tribunal] may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The [Tribunal] will not be authorised on review of a reviewable decision to exercise any powers and decisions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage. ' 17 There is no form of notice of injury legally prescribed. What is a 'notice of injury' complying with s 53 is, as Whitlam J noted in Frosch v Comcare [2004] FCA 1642 at [8] , a matter of law. 18 The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant's claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct: 1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice. 2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met. 3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given. 5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount. 19 While no legal criticism can be made of the Tribunal for declining to accept counsel's invitation to reconsider the matter entirely, since something new in 2002 was being propounded as the injury, it seems to me to have been over-technical, and to have been a legally impermissible mode of interpretation, to hold the applicant irretrievably to the use of what was plainly the then medical diagnosis which he had received.


case_outcome: distinguished

case_text: Jewellery also relies upon the decision of Acerose Pty Ltd v Workcover Authority of New South Wales (unreported, Sup Ct, NSW, Carruthers AJ, 30 July 1998) in which the successful defendant sought an order that the unsuccessful plaintiff pay its costs. Carruthers AJ, refusing such order and instead ordering that each party pay its own costs, said as follows: Also these proceedings are, as I have already indicated, by their nature a test case as far as other Spinner's franchisees are concerned, and I take into consideration the line of authority applied in decisions such as that of Cummins J in Lyser v Camberwell City Council (1989) 69 LGRA 250 , where his Honour was dealing with the construction of certain Local Government by-laws. His Honour there deviated from the general rule that costs should follow the event because the matters which were debated before him were matters of much general interest in so far as Local Government administration was concerned. Similarly, the decision of Acerose is distinguishable since the Court in that matter was clearly of the opinion that the case before it constituted a test case. As to the decision in Cripps , Austrade submits that it does not stand for the principle that non-indigent public authorities cannot be awarded costs. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.


case_text: Jewellery refers to the decision of Attrill and Others v Richmond River Shire Council (1995) 38 NSWLR 545 in which the Court, having resolved a difference of judicial opinion concerning the interpretation of a provision in the Local Government Act 1919 , ordered each party to pay its own costs of the appeal because the Court found the resolution of the issue to be in the public interest. Austrade submits that the decisions of State Courts relied upon by Isaac Jewellery should be treated with caution. In Attrill the Court was faced with a difference of judicial opinion relating to a local government statute and such factor clearly demonstrated a distinct public interest. No such consideration arises in the present appeal. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.


case_text: Court delivered its judgment in these proceedings on 3 February 2009 (see Australian Trade Commission v Isaac Jewellery Pty Ltd [2009] FCA 37 (' Isaac No. 1 ')). At the request of the parties the Court reserved the question of costs. The Court has now heard the party's submissions in relation to costs which are summarised hereunder.


case_outcome: referred to

case_text: the Court exercises its discretion judicially, its power to award a certificate is unfettered: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No 2) (1985) 5 FCR 476 at 477.


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: basic rule remains that the Court has an absolute and unfettered discretion in relation to costs subject only to the requirement that the discretion be exercised judicially and not arbitrarily or capriciously and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11.


case_text: it remains the established principle that an award of costs to the successful party is compensatory: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543; McHugh J at 567. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 Toohey J observed: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47.


case_text: Jewellery also relies upon the decision in Independent Commission Against Corruption v Cripps and Anor (unreported, Sup Ct, NSW, Sully J, 27 August 1996) which it submitted was an example of a Court declining an award of costs in favour of a public body given that the public body was pursuing a matter of public interest and the public body was not an indigent private person. Austrade rejects the implication that its submissions before the Tribunal were in any way responsible for the Tribunal's erroneous conclusions concerning the operation of s 94(1)(b)(i) and s 94(1)(b)(ii) of the EMDG Act. Its submissions before the Tribunal addressed both sub-sections for the Tribunal's consideration but neither party suggested that the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006 ('the Guidelines') applied to s 94(1)(b)(i). Austrade submits that it was the Tribunal's error to erroneously apply the Guidelines to such subsection. Austrade also submits that there is no major public interest in the Court's decision which should lead the Court to depart from the usual practice of ordering that the successful party receive a costs order in its favour. Further, Austrade emphasises that the suggestion that the public interest was to be served by the appeal first arose from a comment by Gary Dennis, Isaac Jewellery's consultant, and that Mr Tonkin's response clearly stated that Austrade would not pay Isaac Jewellery's costs. Similarly, the decision of Acerose is distinguishable since the Court in that matter was clearly of the opinion that the case before it constituted a test case. As to the decision in Cripps , Austrade submits that it does not stand for the principle that non-indigent public authorities cannot be awarded costs. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.


case_text: it remains the established principle that an award of costs to the successful party is compensatory: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543; McHugh J at 567. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 Toohey J observed: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. As stated, an award of costs is in its nature compensatory, and not punitive. McHugh J at 567 of Latoudis observed that a costs order may, ' and usually will, be made even though the action has failed through no fault of the unsuccessful party '. The Court is unable to discern any factor to justify the Court exercising its discretion in favour of Isaac Jewellery so as to deny Austrade its entitlement to costs. Application for Costs Certificate Section 6 of the Costs Act relevantly provides: (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. (2) ... (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates. Section 3 defines 'Federal appeal' to include: (g) an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal... 'Federal Court' is defined in the same section to include the Federal Court of Australia.


case_text: Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72. If an appeal raises a novel question of ' much general importance and some difficulty ' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal.


case_text: Repatriation Commission v Cornelius (2002) 69 ALD 250 Branson J observed at [11] that costs certificates may be granted in the following circumstances: The restricted circumstances in which costs certificates may be granted indicates that the Act is not intended to provide, in effect, an alternative source of legal aid but is intended to advance a more specific public interest. That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful "appeal" on a question of law or as to the amount of damage awarded at first instance. This public interest as described above appears to be similar to the factual scenario of the present proceedings. Nothing in this Court's decision to uphold Austrade's appeal form the AAT suggests that Isaac Jewellery did not 'appropriately and successfully' institute a proceeding before the AAT, and Isaac Jewellery now finds itself as a respondent to the successful appeal on a question of law by Austrade. Austrade has obtained a benefit of a similar kind to that considered in Repatriation Commission v Milenz [2007] FCA 50. Finn J at [4] found that the successful appellant obtained a benefit in ensuring that ' administrative decisions made under the Veterans' Entitlement Act are made according to law ' and thus 'making a respondent ... bear the costs of the appeal in these circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act ' . By analogy, Austrade has an interest in ensuring that decisions made under the EMDG Act are made by the application of the correct principles. In this respect a benefit has resulted in Austrade's favour from the determination of the appeal. Further, the respondent in this case is a small business of limited financial means and thus making Isaac Jewellery bear the full cost of the appeal would undercut the public interest as described by Branson J at [11] of Cornelius .


case_text: has obtained a benefit of a similar kind to that considered in Repatriation Commission v Milenz [2007] FCA 50. Finn J at [4] found that the successful appellant obtained a benefit in ensuring that ' administrative decisions made under the Veterans' Entitlement Act are made according to law ' and thus 'making a respondent ... bear the costs of the appeal in these circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act ' . By analogy, Austrade has an interest in ensuring that decisions made under the EMDG Act are made by the application of the correct principles. In this respect a benefit has resulted in Austrade's favour from the determination of the appeal. Further, the respondent in this case is a small business of limited financial means and thus making Isaac Jewellery bear the full cost of the appeal would undercut the public interest as described by Branson J at [11] of Cornelius .


case_title: Re Mersey Railway Co (1888) 37 Ch D 610


case_text: applicant ('Austrade') submits that it is entitled to an order that the respondent ('Isaac Jewellery') pay its costs in consequence of the determination of the Court in favour of Austrade that the challenged decision of the Administrative Appeals Tribunal ('the Tribunal') be set aside and be re-determined. Austrade submits that in accordance with the usual principle that costs follow the event, an award of costs should be made in its favour. In support of its submission Austrade relies upon the decision of the Full Bench in Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229 which extensively considered the principles to be applied by the Court when exercising its discretion to award costs. Ruddock was followed in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651 and Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1. In Ruddock the Full Court considered the principles governing the award of costs at [9]-[25]. Since there is no challenge to those principles it is unnecessary to restate them, save to observe that the decision confirms the practice that a successful party is usually entitled to be compensated for its costs by an award made against the unsuccessful party. The Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72. If an appeal raises a novel question of ' much general importance and some difficulty ' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal.


case_text: applicant ('Austrade') submits that it is entitled to an order that the respondent ('Isaac Jewellery') pay its costs in consequence of the determination of the Court in favour of Austrade that the challenged decision of the Administrative Appeals Tribunal ('the Tribunal') be set aside and be re-determined. Austrade submits that in accordance with the usual principle that costs follow the event, an award of costs should be made in its favour. In support of its submission Austrade relies upon the decision of the Full Bench in Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229 which extensively considered the principles to be applied by the Court when exercising its discretion to award costs. Ruddock was followed in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651 and Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1.


case_title: Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1


case_text: such further or other orders as the Court deems appropriate.' 2 Accompanying the notice of motion, as required under O 40 r 6 of the Federal Court Rules , was the Statement of Charge which claimed that the contempt committed by the respondent was wilful and contumacious insofar as: '1. in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2003, the respondent has been involved in the management of the following corporations: 1.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 1.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and 2. in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations: 2.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 2.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.' 3 The complete history of this proceeding can be found in my reasons for judgment in Australian Securities and Investments Commission v Reid [2005] FCA 1274. 4 Relevantly, the matter was listed for hearing on 22 November 2004. However, on 18 November 2004 the respondent, who was then represented by a solicitor, applied for an adjournment. I refused the application. On 22 November 2004, who was then unrepresented, applied for a stay of proceedings on the ground that he was indigent and without legal assistance: Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292 (' Dietrich '). I refused the application and indicated that I would give my reasons at a later date. These are the reasons for my refusal of that application. 5 The procedure which is to be adopted where a party brings contempt proceedings against another party for contempt is regulated by O 40 of the Federal Court Rules and, in particular, O 40 r 7 which provides: '(1) Subject to subrule (2), the evidence in support of a charge shall be by affidavit. (2) The Court may permit evidence in support of a charge to be given otherwise than by affidavit.' 6 The procedure is different from criminal proceedings, where proceedings do not ordinarily go forward on affidavit evidence. 9 There is a long line of authority to suggest that the principle established by Dietrich as to the use of the Court's inherent power to stay or adjourn proceedings until legal representation is obtained relates only to criminal proceedings. 10 The principle in Dietrich was explained in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in New South Wales v Canellis & Ors [1994] HCA 51 ; (1994) 181 CLR 309 (' Canellis ') in the following terms (at 328): '... the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.' 13 In McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 Kiefel J said: 'The principle established by Dietrich v R [1992] HCA 57 ; (1992) 109 ALR 385; 177 CLR 292 as to the use of a court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 124 ALR 513, 522; Williams v Official Trustee (1994) 122 ALR 585, 600 . It is not authority for the proposition that in other proceedings or inquiries such a step would be required by dictates of fairness, even where someone faced potentially serious consequences.' 17 In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.' 18 More recently, in Rivera v United States of America [2004] FCAFC 154 , Heerey, Sundberg and Crennan JJ considered whether the principle in Dietrich applied to a review of extradition proceedings under s 21(1) of the Extradition Act 1988 (Cth) ('the Act'). Their Honours firstly considered s 19(5) of the Act, which provided: 'In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.' 19 In a joint judgment, their Honours said (at [26] [28]): 'This provision ensures that the merits of the criminal charge are not in issue in the proceedings concerning surrender and there can be no risk that the appellant will incriminate himself if the legislation is adhered to as it has been during the course of this matter. Having as its source and origin an accused person´s common law right to a fair trial, the principle in Dietrich´s case has, in our view, no application to a review of extradition proceedings under s 21(1) of the Extradition Act . This view is consistent with unanimous views of the High Court in Canellis . In the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 328 their Honours said: "... the principle established by the decision in that case [Dietrich] is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, the principle is based on, and derives from, the accused´s right to a fair trial. There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious. Furthermore, and this is of decisive importance in the present case, the principle in Dietrich is concerned with the right to a fair trial of a party to criminal proceedings ; ..." There is nothing in the facts of this case which would support the application of the principle in Dietrich to these extradition proceedings as contended for by the appellant in reliance upon the observations of Kirby P in Canellis v Slattery . Furthermore there is no requirement for the appellant to seek special leave in person from the High Court: see Milat v R [2004] HCA 17 ; (2004) 205 ALR 338. Accordingly, we reject the submission that the Dietrich principle can be invoked in these extradition proceedings on the basis contended because no risk of conviction or self-incrimination can arise in these proceedings conducted in accordance with the Extradition Act , for the purposes of determining eligibility for surrender.' 21 In the circumstances of this case, where the procedure to be adopted in the contempt proceeding is civil rather than criminal, the respondent's application to stay the proceedings on the basis of Dietrich had to fail because the principle in Dietrich has no application to civil proceedings. It was on this basis that the respondent's application was dismissed.


case_text: The High Court has recognised that contempt proceedings are civil, rather than criminal in nature. In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534 the High Court, in addressing the standard of proof to be applied in contempt proceedings, indicated that contempt proceedings are essentially criminal in nature. However, the majority indicated that the rights and procedural obligations ordinarily associated with a criminal trial are dispensed with in contempt proceedings, stating (at 534): 'It was submitted by counsel for the appellant that, if contempt proceedings are essentially criminal in nature, there is no power to order a retrial of the charges against the appellant ... However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing. 8 The Court's reasons show that contempt proceedings, or at least the procedure to be adopted in them, is civil rather than criminal in nature even though a Court may find that a person has committed a criminal contempt.


case_text: The principle in Dietrich was explained in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in New South Wales v Canellis & Ors [1994] HCA 51 ; (1994) 181 CLR 309 (' Canellis ') in the following terms (at 328): '... the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.' 12 This reasoning of the joint judgment in Canellis has been applied in numerous cases. 13 In McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 Kiefel J said: 'The principle established by Dietrich v R [1992] HCA 57 ; (1992) 109 ALR 385; 177 CLR 292 as to the use of a court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 124 ALR 513, 522; Williams v Official Trustee (1994) 122 ALR 585, 600 . It is not authority for the proposition that in other proceedings or inquiries such a step would be required by dictates of fairness, even where someone faced potentially serious consequences.' 14 In Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 , Mansfield J said (at [61]): 'The principle recognised in Dietrich ... is a feature of the entitlement to procedural fairness, but it is confined to serious criminal proceedings. That decision was not intended to apply in respect of civil proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 328-329 per Mason CJ, Dawson, Toohey and McHugh JJ.' 15 In Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 ; (2000) 101 FCR 20, Sackville, Marshall and Lehane JJ in a joint judgment said (at [22] [24]): 'The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309. In that case, the issue was whether a stay should be granted of an inquiry under s 475 of the Crimes Act 1900 (NSW) because of doubts concerning the guilt of a convicted person. The question arose because the State had refused to pay the costs of legal representation for certain witnesses required to appear before the inquiry. The joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ observed (at 328) that the principle established by Dietrich "is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused´s right to a fair trial". 17 In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.' 20 In Vranic v Chief Executive Officer Centrelink [2004] FCA 1511 , the applicant submitted that she had been denied procedural fairness because she was not legally represented at the hearing before the trial judge. Cooper J rejected this submission, stating at [8]: 'Procedural fairness in a civil proceedings (sic) does not require that legal representation be provided to a party at trial: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330; Stuart v Federal Commissioner of Taxation (1996) 96 ATC 4960 (FC) at 4964.'


case_title: McGibbon v Linkenbagh (1996) 41 ALD 219

case_text: In McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 Kiefel J said: 'The principle established by Dietrich v R [1992] HCA 57 ; (1992) 109 ALR 385; 177 CLR 292 as to the use of a court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 124 ALR 513, 522; Williams v Official Trustee (1994) 122 ALR 585, 600 . It is not authority for the proposition that in other proceedings or inquiries such a step would be required by dictates of fairness, even where someone faced potentially serious consequences.'


case_text: In Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 , Mansfield J said (at [61]): 'The principle recognised in Dietrich ... is a feature of the entitlement to procedural fairness, but it is confined to serious criminal proceedings. That decision was not intended to apply in respect of civil proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 328-329 per Mason CJ, Dawson, Toohey and McHugh JJ.'


case_text: In Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 ; (2000) 101 FCR 20, Sackville, Marshall and Lehane JJ in a joint judgment said (at [22] [24]): 'The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309. In that case, the issue was whether a stay should be granted of an inquiry under s 475 of the Crimes Act 1900 (NSW) because of doubts concerning the guilt of a convicted person. The question arose because the State had refused to pay the costs of legal representation for certain witnesses required to appear before the inquiry. The joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ observed (at 328) that the principle established by Dietrich "is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused´s right to a fair trial". 17 In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.'


case_text: In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.'


case_text: More recently, in Rivera v United States of America [2004] FCAFC 154 , Heerey, Sundberg and Crennan JJ considered whether the principle in Dietrich applied to a review of extradition proceedings under s 21(1) of the Extradition Act 1988 (Cth) ('the Act'). Their Honours firstly considered s 19(5) of the Act, which provided: 'In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.'


case_text: In Vranic v Chief Executive Officer Centrelink [2004] FCA 1511 , the applicant submitted that she had been denied procedural fairness because she was not legally represented at the hearing before the trial judge. Cooper J rejected this submission, stating at [8]: 'Procedural fairness in a civil proceedings (sic) does not require that legal representation be provided to a party at trial: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330; Stuart v Federal Commissioner of Taxation (1996) 96 ATC 4960 (FC) at 4964.'


case_text: It is not clear from the Federal Magistrate's reasons if an argument was made that the respondents were obliged to accept tender of the debt. Nonetheless, his Honour noted that the law is clear that a creditor is not obliged to accept tender of the sum owed if a creditor's petition has been presented: McIntosh v Shashoua [1931] HCA 56 ; (1931) 46 CLR 494. 17 The Federal Magistrate noted that the appellant's affidavit material made much of the amendment to the description of the creditor on the creditor's petition. His Honour found that nothing turned on this amendment. He said: "The [respondent] has at all times been a partnership and has sued as such. The fact that the partnership is constituted by two individuals is wholly irrelevant to its existence as what the [appellant] described as 'a juristic person'." His Honour also found that, contrary to the appellant's assertion, Mr Velos has always had the requisite authority to sue on behalf of the firm, and that Mr Velos and Mr Davis, the respondents, jointly agreed to commence the proceedings against the appellant. 18 The Federal Magistrate recorded that the appellant deposed to owning a property at Olinda Street worth $55,000 "plus or minus 4 year unencumbered title". He assumed, perhaps somewhat generously, that this meant that the appellant claimed that he owned this property unencumbered. The appellant also deposed to owning shares worth $1,000 and cash of $15,000 as well as having "family and friends dollars? a phone call away" and various other assets. His Honour said the appellant had made no endeavours to obtain funds from family and friends. His Honour noted evidence filed by the respondents showing that the appellant does not own registered land in Victoria but was prepared to assume, again generously, that "in some prima facie inexplicable way he may have an interest in land of some sort". 19 There was further evidence about the Olinda Street property. It suggested that the property was situated in Beaufort and that the appellant purchased it for $6,000 in 2002. He thereafter built a property on the land and has offered it for sale with an asking price of $75,000. However, a likely realisable purchase price is between $65,000 and $70,000, as recorded on the Real Estate Institute of Victoria exclusive sale authority. Further evidence, in the form of a flyer from a real estate agent, suggested that the construction of the property has not proceeded beyond the laying of foundations. 20 The appellant's wife swore an unchallenged affidavit in which she said that "the land has a proposed plan of subdivision with a minimum completed value of $250,000". The Federal Magistrate said of this affidavit that its style "suggests very strongly that its author was in fact the [appellant] himself". 21 The final piece of evidence concerning the Olinda Street property is the attribution by the relevant shire of $13,000 as the capital improved value of the property, and $13,000 as to the site value. The Federal Magistrate said that this probably suggests that the council valued the property at $26,000. He did not make a finding that the property was actually worth $26,000. 22 The Federal Magistrate found that "there is nothing in the material put forward by the [appellant] that enables the Court to form any view as to the true value of the Olinda Street property, whether subdivided or in its current state." He also found that the council valuation did not go to "establish to the Court's satisfaction what the true value of the property is." 56 Ground 6 appears to allege that the appellant offered a second tender of the debt on 10 August 2006 at the hearing before the Registrar. It states that "hearsay led Registrar Mussett to make a sequestration order against the appellant. The dubious methodology adopted, distorts. The purpose alleged was to prove or disprove solvency. The essential requirements of the Act a contrary purpose was intended in bankruptcy law and the claim of McIntosh v Shashoua, 76 years ago is that, THAT case, is not THIS case." 57 The last sentence of this ground is entirely incomprehensible. I think what the remainder of the ground alleges is that the appellant again tendered payment of the debt on 10 August 2006, not for the purpose of having the tender accepted but rather to demonstrate that he was solvent. Even if I assume, in the absence of any evidence, that the appellant did tender payment again on 10 August 2006, this ground is still flawed. The tender of a cheque in the amount of the debt owed to one creditor does not prove solvency. There is no indication of the provenance of the funds. It is entirely possible that payment of the debt owed to the respondents would have led to both a reduction of the appellant's liabilities and a corresponding reduction in his assets. If that is the case, his overall solvency is not altered. Furthermore, insolvency consists of an inability to pay all of one's debts as and when they fall due. The ability to pay one debt is not evidence of an ability to pay the others. This ground fails. 58 Ground 7 states: "The appellant claims that the Constitution assumes the rule of law. It is defeated by the passive discourse content and prestige bias in the judgment of Burchardt FM."


case_text: Based on this, the Federal Magistrate concluded that the appellant was insolvent. He applied Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 which he said stated the law as follows: "insolvency is an inability to pay debts as they fall due out of the debtor's own monies. Those monies are not however limited to cash resources immediately available. They extend to monies which the debtor can procure by realisation by sale or otherwise of assets within a relatively short time. The conclusion of insolvency should be clear from a consideration of the debtor's financial position in its entirety and generally ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor's inability utilising such cash resources as they have or can command to meet their debts as they fall due which indicates insolvency. Whether that state of affairs has arrived is a question for the Court and not one to which expert evidence may be given in terms." 25 The appellant argued before the Federal Magistrate that a sequestration order may adversely affect his "proposed studies at University". In fact, there was evidence that the appellant is currently a student at the University of Tasmania. His Honour appears to have inferred that the appellant studies law, although why he should have drawn that inference is not stated. He concluded that "the possible, and in my view unproved, detriment that bankruptcy might have on any legal career would not be enough to persuade me that the petition be set aside". 26 The Federal Magistrate also considered the failure to provide or the very tardy provision of a statement of affairs to the trustee in bankruptcy as a relevant discretionary factor. His Honour exercised his discretion not to dismiss the petition. 27 The appellant argued before the Federal Magistrate that he was served with the creditor's petition within the precincts of the Court. His Honour accepted the evidence of Mr Velos that the petition was served outside the Court. 28 The appellant has appealed the striking out of his Victorian Magistrates Court complaint against the respondents. The Federal Magistrate noted that a Master dismissed the Supreme Court proceeding on 8 September 2006 and that accordingly it was of no assistance to the appellant. 29 Before the Federal Magistrate, the appellant sought to appeal out of time from the decision of O'Dwyer FM not to further extend the time for compliance with the bankruptcy notice. The Federal Magistrate noted that he was not in a position to go behind a decision of another Federal Magistrate. 30 The argument about the validity of the bankruptcy notice appears to concern the calculation of interest during a 14-day period after the taxation of the bill of costs in the Supreme Court proceeding. The Master made an order staying execution of the order for taxation for 14 days. The appellant appears to have claimed that interest did not accrue during this period. The Federal Magistrate disagreed but noted that at any event the creditor's petition claimed an amount that did not include any interest on the amount allowed by the Master. 31 The appellant submitted that the date on the amended creditor's petition caused him confusion. Without explaining why, the Federal Magistrate found that the change in date was not likely to confuse the appellant. 32 The appellant also made submissions about confusion occasioned by the change in description of the legal name of the respondents. The Federal Magistrate referred to the irrelevance of the change in the description and said "I do not think that the partnership as an entity known to law was ever in danger of being misunderstood and I do not believe that the changes made were of any moment."


case_text: construing orders which are sought to be made on the subject of findings of contempt where later contraventions are alleged, it is permissible to have regard to any judgment given by the court pronouncing the orders and other relevant surrounding circumstances ( Athens v Randwick City Council [2005] NSWCA 317 ; (2005) 64 NSWLR 58).