case_text: Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B & P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B & P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705. The additional cases relied on by the CFMEU involved contraventions of civil penalty provisions. In those cases it was accepted that the trouble and cost of defending the proceeding served the purpose of personal deterrence. The Full Court in Ponzio v B & P Caeli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 did not, however, consider that the need for general deterrence would be met unless a monetary penalty was also imposed: see at [97], [164]. In any event and for the reasons earlier articulated, I consider that cases concerning contraventions of civil penalty provisions to be of limited assistance where contempts of court have occurred. In the circumstances of this case deterrence both specific and general is an important consideration. The penalty must be imposed at a meaningful level so as to deter the CFMEU, and others who, save for the risk of a high penalty, may otherwise engage in contravening conduct: see generally Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 at [24] ; Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076). The fact that a contemnor has incurred legal expenses in defending charges is to be borne in mind when a penalty is determined but this consideration does not weigh heavily in mitigation of penalty. Apology or contrition


case_outcome: referred to

case_text: CFMEU was also concerned that "the Court should be careful not to impose a penalty misdirected at the members of the respondent." As I understood this part of its argument it came down to this: union members should not be penalised for the actions of officials over whom they had no control. They would be so penalised if a monetary penalty were to be imposed on the union rather than on the officials and members who had participated in the contemptuous conduct. It was submitted that it was open to the Applicant to name the CFMEU officers involved in the incidents on 19 and 23 February 2009 as respondents to the contempt proceeding. It had chosen not to do so. As a result, so it was contended, any penalty imposed against the CFMEU would penalise innocent persons, the ordinary members of the CFMEU who had not been involved in the conduct, rather than being directed at those who had engaged in the offending conduct: see R v Wattle Gully Goldmines N.L. [1980] VR 622. Payment of the penalties would diminish funds contributed by members which would otherwise have been directed for their benefit.


case_text: Court has an unfettered discretion in determining whether and on what basis to award costs: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651. It is common for costs to be awarded in favour of a successful Applicant in contempt proceedings: see BHP Steel at 351; Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496. Courts, however, have awarded costs on a party and party basis (see: for example, Jones v Toben (No 2 ) [2009] FCA 477) and on an indemnity basis (see: for example, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702). The reason that indemnity costs are frequently awarded where an applicant has successfully prosecuted charges of contempt is that the applicant has not been seeking any remedy on its own behalf but rather has been upholding the various public interests which are served by prosecutions for contempt of Court.


case_text: Applicant relied on the conviction which was imposed on the CFMEU in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 (which varied the declaration of Kiefel J in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] FCA 1853 , see further [42] below), as a relevant prior conviction. In that case the CFMEU was also required to pay indemnity costs: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2002] FCA 702. The CFMEU accepted that prior convictions were relevant and may justify a heavier penalty than might otherwise be imposed. Counsel for the CFMEU told the Court that the CFMEU had not been found guilty of contempt of Court in relation to any earlier action taken in Victoria; the "only potential prior conviction" of the CFMEU was the conviction imposed in the BHP Steel case. It was submitted that "prior convictions of another autonomous division and/or autonomous branch of the respondent should not be taken into account". Reliance was placed on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 and Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169. Alternatively, the CFMEU submitted that, if the fine was considered a relevant prior conviction, in the absence of statutory provision, it could not lead to the imposition of a penalty that was disproportionate to the gravity of the instant offence: see Hoare v The Queen [1989] HCA 33 ; (1989) 167 CLR 348 ; Veen v The Queen [1979] HCA 7 ; (1979) 143 CLR 458 and Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465.


case_text: underlying rationale of every exercise of the contempt power is that it is necessary to uphold and protect the effective administration of justice: see Mudginberri Station at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) . The power to punish contempts serves the purpose of disciplining the defendant and vindicating the authority of the court (see Mudginberri Station at 112-113); it is the means by which the law vindicates the public interest in the due administration of justice: see Attorney-General v Times Newspaper Ltd [1974] AC 273 at 315-316; Borrie & Lowe, The Law of Contempt , (3 rd ed, Butterworths, 1996) p 1 and is the way in which the Court preserves respect for its role and the rule of law: see Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 per Tamberlin J. There are many facets to the administration of justice (Borrie & Lowe, p 1). While the effect of the contempt on the ability to prosecute the principal proceeding may be relevant in assessing the effect of the contempt on the administration of justice: see, for example, Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965 , the subject matter of the principal proceeding does not define the scope or the effect of the contempt on the administration of justice. In Attorney-General v Times Newspaper Ltd [1974] AC 273 at 309 Lord Diplock considered the requirements of the due administration of justice: "The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."


case_text: additional cases relied on by the CFMEU involved contraventions of civil penalty provisions. In those cases it was accepted that the trouble and cost of defending the proceeding served the purpose of personal deterrence. The Full Court in Ponzio v B & P Caeli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 did not, however, consider that the need for general deterrence would be met unless a monetary penalty was also imposed: see at [97], [164]. In any event and for the reasons earlier articulated, I consider that cases concerning contraventions of civil penalty provisions to be of limited assistance where contempts of court have occurred. In the circumstances of this case deterrence both specific and general is an important consideration. The penalty must be imposed at a meaningful level so as to deter the CFMEU, and others who, save for the risk of a high penalty, may otherwise engage in contravening conduct: see generally Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 at [24] ; Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076). The fact that a contemnor has incurred legal expenses in defending charges is to be borne in mind when a penalty is determined but this consideration does not weigh heavily in mitigation of penalty. Apology or contrition


case_outcome: followed

case_text: submissions are not novel. They have been rehearsed in a number of the authorities relied on by the CFMEU. These authorities have recently been reviewed by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. Prior convictions incurred as a result of misconduct by another autonomous division or branch of the CFMEU will not be taken into account where the character of the conduct is different from the conduct in question. This is because of the dissimilarity of the offending conduct and not because of the degree of autonomy accorded to divisions and branches by the CFMEU rules. As Jessup J pointed out in Williams , an earlier offence of the CFMEU is no less an offence by that corporate body because it was committed by a division or branch other than the one responsible for the offence presently under consideration. Moreover, as his Honour observed, "the deterrent effect of a penalty would be significantly compromised if the court were obliged to turn a blind eye to a prior contravention merely because it occurred in a different division or branch of an organisation": at [20]. Both BHP Steel and the present case involved contempts of Court, occasioned by the breaching of an injunctive order. I consider that the conviction in BHP Steel is a relevant prior conviction. Public nature of the defiance


case_outcome: applied

case_title: Witham v Holloway (1995) 183 CLR 525

case_text: public interest in the administration of justice requires compliance with all orders and undertakings: see Witham v Holloway (1995) 183 CLR 525 at 532-533. In Witham the High Court said (at 533): "All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties." The submission that the penalty imposed ought to reflect the fact that the objectives of the Order, as perceived by the CFMEU, were not circumvented is misconceived. In my view, it reflects the cavalier attitude taken by the CFMEU to the Order and the Court, and misconstrues the objective of the Order. The Order prohibited the CFMEU, whether by itself, its officers, servants, agents or howsoever otherwise from doing any act, or directing, advising or authorising, or doing or continuing any act to aid, abet, counsel, procure, encourage or induce any person to obstruct or interfere with the passage of any person, whether on foot or in a vehicle proceeding into or from the Site. The immediate purpose of the Order was to ensure that access to the Site by persons and vehicles should not be impeded. The Order was ignored. CFMEU officials and members were responsible on two occasions for obstructing the passage of vehicles which could otherwise have entered the Site. It was purely fortuitous (if it be the case) that the impugned conduct did not disrupt work on the Site It is no answer to say that the contempt was constituted by omissions or to seek to diminish the gravity of the contempt by relying on the conduct of the drivers of the obstructed vehicles. Furthermore, the claim that the offending conduct was constituted by omissions cannot be accepted. CFMEU officials parked union-owned vehicles across the entrance to the Site. From time to time vehicles were removed and replaced by other vehicles. A tent or marquee was erected in such a position as to prevent the opening of one of the gates. The only sense in which the conduct of the officials and members might properly be characterised as involving omissions is that it included the failures and refusals to move the obstructions when requested to do so by representatives of the Applicant and as required by the Order.


case_title: Bertran v Vanstone [2000] FCA 359 , 173 ALR 63

case_text: The statutory expression " in force " is to be construed as requiring consideration simply to be given to " whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings ": Bertran v Vanstone [2000] FCA 359 at [55] , [2000] FCA 359 ; 173 ALR 63. 21 For the purposes of the Motion, any challenge to the manner in which the Minister exercised the power conferred by s 16(2) on this basis has no reasonable prospects of success. 22 Moreover, such further evidence as is now before the Court on the present Motion seems to amply support a finding that the warrant remains in force and that there is no reason to question that conclusion, even now. Thus, an " Opinion " dated 16 April 2007, as subsequently provided under the signature of the Senior Chief Public Prosecutor for the Hannover Department of Public Prosecutions, states in part as follows: ...The detention order by the Regional Court of Hannover dated September 16, 2003 was generated in the manner provided by law and fulfils the rules of the StPO [German Code of Criminal Procedure] under formal aspects as well. The allegation of the prosecuted person that the detention order had expired in December 2005 is not true. According to StPO, an order for detention awaiting trial shall only become invalid, when it is lifted by a court... That Opinion stands in contrast to an affidavit filed in proceedings in the Australian Capital Territory by Mr Karsten, being an annexure to an Affidavit filed in the present proceedings in this Court, that asserts: ... The warrant provided with the extradition request expired in December 2005 according to my sources ... No further details were provided nor were the " sources " identified. For present purposes, it is considered that no conclusion is open other than that the warrant remains " in force ". Further written submissions filed on 5 March 2008 by Mr Karsten seek to annex further materials. Some of these materials are in German and have not been translated into English. To the extent that the Court has been able to consider those materials, the conclusion remains the same.


case_outcome: considered

case_text: Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13] [15] per Rares J, [2007] FCAFC 191 ; 99 ALD 235. See also Brock v Minister for Justice & Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination.


case_title: Brock v United States of America [2007] FCAFC 3 , 157 FCR 121

case_text: Whether or not either of these two fields of inquiry can be properly characterised as " jurisdictional facts " thus need not be resolved. The resolution of whether a fact is jurisdictional or not remains a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [39] , 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). Less difficulty may be experienced in characterising as a " jurisdictional fact " a question as to whether a person has informed a magistrate of his consent; greater difficulty, however, may be experienced in characterising as " jurisdictional " whether a magistrate had " reason to believe that the consent was not given voluntarily" . The potential inconvenience consequent upon construing s 18 in such a manner may be a telling reason to conclude that such matters are not " jurisdictional ": cf Brock v United States of America [2007] FCAFC 3 at [30] per Black CJ, [2007] FCAFC 3 ; 157 FCR 121.


case_text: Section 16(2)(a), it will be noted, confers power by reference to whether the Attorney-General forms an " opinion "; and s 22(3) refers to the Attorney-General being " satisfied " of the matters there specified. On behalf of the Respondent Minister, reference was made to the confined ambit of judicial review available where powers are so conferred: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110. Gibbs J there observed at 118 19: It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. 15 In the present extradition process, an issue which assumes significance was the making of an order under s 18. That section provides as follows: Consent to surrender (1) Where: (a) a person is on remand under section 15; and (b) the Attorney-General has given a notice under subsection 16(1) in relation to the person; the person may inform a magistrate that the person consents to being surrendered to the extradition country concerned in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought by that country. (2) Where the person informs the magistrate that he or she so consents, the magistrate shall, unless the magistrate has reason to believe that the consent was not given voluntarily: (a) advise the person that the effect of so consenting will be that: (i) the person will be committed to prison without any proceedings being conducted under section 19 to determine whether the person is eligible for surrender in relation to any extradition offence; and (ii) the person will, if the Attorney-General issues a surrender warrant or a temporary surrender warrant, be surrendered to the extradition country; and (b) if, after the person has been advised as mentioned in paragraph (a), the person again consents to being surrendered: (i) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5); and (ii) advise the Attorney-General in writing of the offence or the offences in respect of which the person has so consented. 16 It is difficult to conclude that the Applicant does not fall within the terms of s 6(a)(i) of the Extradition Act , namely a person in respect of whom there is " a warrant ... in force ... in relation to an offence ... against the law " of Germany. 18 The warrant as issued does not on its face disclose any limitation as to the period of time during which it is to operate. The manner of operation of a warrant issued under a foreign law, including any limitation as to the period of time during which it is to operate, is a question of fact. As contended by the Respondent Minister, the existence of the warrant and the absence of any limitation upon its face provided a sound basis upon which the Respondent Minister could lawfully form an " opinion " for the purposes of s 16(2): cf Buck v Bavone . Moreover, the request for extradition, being a document also before the Minister when giving the notice, also proceeds upon the assumption that the warrant issued in September 2003 remained in force when the request was being made in April 2006. 27 As at the date when the s 16 notice was given, the material then available provided a sound basis for the requisite " opinion " being formed. A discrete submission advanced on behalf of the Respondent Minister again focused attention upon the confined ambit of such judicial review as is available: Buck v Bavone . Section 16(2)(a)(ii) -- as with s 16(2)(a)(i) -- again vests the decision-making function in the Attorney (or the Minister) if he is " of the opinion " that the person involved has committed an " extradition offence ." That submission is again accepted. 28 A contrary conclusion advanced by Mr Karsten was based upon what was said to be a discrepancy between what the German Criminal Code may have provided in terms, and the sentences in fact imposed upon others involved in the events giving rise to the charges against him. That " parity of sentencing " as urged by Mr Karsten dictated a different conclusion. It is considered that the " opinion " formed on 24 October 2006 was one open to be reached by the Minister on the materials before him and one which should be accepted for the purposes of the present Motion . 29 Albeit subsequent to the point in time when the s 16 notice was issued on 24 October 2006, it may further be noted that there was no later reason to revisit that conclusion. The " Opinion " provided in April 2007 thus also states in part as follows: ... German police officers are not authorised to make offers to terminate criminal procedures. Additionally, execution of imprisonment may, under Section 56 StPO, only be suspended on probation, when it does not exceed 2 years. In the case concerned here however, the minimum punishment provided by law is 3 years of imprisonment. One could only go below this when other circumstances, which are regulated by law, come up. Such specific circumstances are not recognisable, however. For this reason, probationary suspension of the imprisonment to be imposed when a sentence is passed would, at the current state of knowledge, not be possible ...


case_title: Cabal v United Mexican States (No 3) [2000] FCA 1204 , 186 ALR 188

case_text: The approach urged upon the Court by Mr Karsten, namely an invitation to go behind the face of both the request and (more importantly) the warrant itself is an invitation which should be rejected. Section 16(2) , framed as it is in terms of an " opinion ", should not be construed as requiring the Attorney-General or the Minister to become an expert in foreign law and construed in a manner which has the potential to frustrate the discharge by Australia of its obligations under extradition treaties: Tervonen v Minister for Justice & Customs (No 2) [2007] FCA 1684 , 98 ALD 589. Rares J there observed: [38] In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word 'accused' in s 6(a)(i) of the Act, noting: It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own. [39] The Attorney-General cannot be expected to be an expert in foreign law: Williams v Minister for Justice and Customs [2007] FCAFC 33 ; 157 FCR 286 at 298 [49] . Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 , illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. His Honour continued: [40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested. ... [42] Each warrant, on its face, was termed a 'warrant'. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). An appeal from this decision has been allowed in part, although it was not necessary for the Full Court to make any comment in relation to the above observations of the learned trial judge: Minister for Home Affairs v Tervonen [2008] FCAFC 24. See also Cabal v United Mexican States (No 3) [2000] FCA 1204 at [149] and [153], [2000] FCA 1204 ; 186 ALR 188 per French J.


case_text: In Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 Jacobson J helpfully summarised the principles to be applied to s 31A: [30] ...The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: * In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. * There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. * Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. * Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 57 In the present proceedings it is recognised that, when resolving the Minister's Motion , it is not necessary to conclude that Mr Karsten's case is either " hopeless " or " bound to fail ". It is, however, considered that it has " no reasonable prospect [s] of success ." It is considered that Mr Karsten has no reasonable prospects of any conclusion being reached other than that: (a) he is an " extraditable person " within the meaning of ss 6 and 16 of the Extradition Act ; (b) the offence in respect of which his extradition is sought is an " extradition offence " within the meaning of ss 5 and 16 of the Act; and (c) he is an " eligible person " under s 22 of the Act. 58 Two further miscellaneous matters should be mentioned lest it be thought that they have been overlooked or not considered.


case_text: The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29] , [2006] HCA 40 ; 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ. 19 The approach urged upon the Court by Mr Karsten, namely an invitation to go behind the face of both the request and (more importantly) the warrant itself is an invitation which should be rejected. Section 16(2) , framed as it is in terms of an " opinion ", should not be construed as requiring the Attorney-General or the Minister to become an expert in foreign law and construed in a manner which has the potential to frustrate the discharge by Australia of its obligations under extradition treaties: Tervonen v Minister for Justice & Customs (No 2) [2007] FCA 1684 , 98 ALD 589. Rares J there observed: [38] In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word 'accused' in s 6(a)(i) of the Act, noting: It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own. [39] The Attorney-General cannot be expected to be an expert in foreign law: Williams v Minister for Justice and Customs [2007] FCAFC 33 ; 157 FCR 286 at 298 [49] . Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 , illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. His Honour continued: [40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested. ... [42] Each warrant, on its face, was termed a 'warrant'. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). An appeal from this decision has been allowed in part, although it was not necessary for the Full Court to make any comment in relation to the above observations of the learned trial judge: Minister for Home Affairs v Tervonen [2008] FCAFC 24. See also Cabal v United Mexican States (No 3) [2000] FCA 1204 at [149] and [153], [2000] FCA 1204 ; 186 ALR 188 per French J.


case_title: Dutton v O'Shane [2003] FCAFC 195 , 132 FCR 352

case_text: In any event, the approach being urged upon the Court by Mr Karsten to again impose a requirement upon the Attorney-General or the Minister to inquire into the penalty likely to be imposed is an approach which should be rejected. The definition of " extradition offence ", it has been said, is " not concerned with whether there are other alternate and lesser possible penalties, nor with the actual penalty likely to be imposed on the person whose extradition is being sought ": Dutton v O'Shane [2003] FCAFC 195 at [41] , [2003] FCAFC 195 ; 132 FCR 352 at 362 per Finn and Dowsett JJ. 31 It is thus considered that there is no doubt that the offence for which extradition has been sought is in respect of an " extradition offence " as defined in s 5 of the Extradition Act or, alternatively, there was and remains a basis upon which the Respondent Minister could lawfully form that " opinion ". 32 It is understood that the Applicant's contention in respect of the determination made under s 22 is that he was not an " eligible person " because " the applicant was not the subject of a valid order of a magistrate as the applicant's consent was not given voluntarily but under an operative mistake of fact ".


case_text: The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29] , [2006] HCA 40 ; 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ.


case_title: Minister for Home Affairs v Tervonen [2008] FCAFC 24


case_outcome: cited

case_text: Intervening, namely in February 2007, was the decision of Connolly J of the Supreme Court of the Australian Capital Territory: R v Karsten [2007] ACTSC 20 , 208 FLR 324. In those proceedings Mr Karsten sought to challenge the decision of the magistrate. Justice Connolly entertained a Notice of Appeal against the decision of the magistrate. Relevant to the order made by the magistrate are the following observations of his Honour: [5] The Extradition Act (1988) of the Commonwealth provides two routes by which the question of whether surrender will occur may proceed. By s 18, a person who has been remanded, may consent to their surrender. The matter is then laid before the Commonwealth Attorney-General for determination as to whether surrender will, in fact, occur. Or, pursuant to s 19, there may be a contested hearing in relation to whether there is eligibility to surrender. [6] The common factual ground here is that Mr Karsten indicated his consent to being extradited and, as I understand it, there is no dispute that the learned Magistrate went through the necessary steps under s 18(2) which requires a magistrate, unless they have reason to believe the consent was not voluntary, to advise the person of the effect and consequences of their determination to surrender. There is no specific provision in the Act relating to a variation of that determination. His Honour's reasons for decision record the submission made through the Commonwealth Director of Public Prosecutions that the Supreme Court had: [7] ... no general jurisdiction ... to entertain firstly an appeal from a s 18 decision, and specifically no jurisdiction to permit a variation in the form of consent that was on the papers at least given at that hearing. The question before Connolly J was formulated by his Honour as being " whether or not this Court has the jurisdiction to entertain an application to allow Mr Karsten to withdraw his consent to an extradition ": [2007] ACTSC 20 at [1] . That question was answered in the negative. His Honour did, however, go on to further observe: [18] There is a general discretion in the Attorney in relation to the extradition process, and it seems to me that the question of the voluntariness of consent would be a question that the Attorney would need to satisfy himself of. Clearly, if a situation was one where a person had no English skills at all, or had been tricked in some way into agreeing to consent, that would be a matter that would necessarily attract attention and the Attorney and [sic] would need to make a determination to that effect. Before the Supreme Court Mr Karsten was legally represented. A more general submission advanced on the hearing of the present Motion before this Court that Mr Karsten was thereafter represented by counsel, it is considered, should not be accepted. What advice was given to Mr Karsten by his then legal representative when appearing in the Supreme Court remains, not surprisingly, unknown. 47 Relevantly, however, by the time the s 22 determination was made, the only judicial challenge to the s 18 decision had been heard and resolved against Mr Karsten. In such circumstances it is considered that the requirements of s 22 had been met, namely that there was a lawful " order of a magistrate made under section 18 ", and that any condition precedent to the exercise of the power conferred by s 22 had been satisfied. 48 Even if the construction of s 22 which has been given to that section be incorrect, it is considered that it would be an abuse of process to now permit the Applicant to advance such a contention. It would be an abuse of the process of the Court for a person the subject of extradition proceedings to seek to challenge an order made pursuant to s 18; to be informed that the means of challenge then being invoked were not available to him; to thereafter await a determination made under s 22; and, when that determination is adverse, to be permitted to then revert to his earlier position by asserting that there was no power to make the s 22 determination.


case_title: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 , 99 ALD 235

case_text: The Further Amended Application seeks to challenge a notice issued under s 16 of the Extradition Act 1988 (Cth) on 24 October 2006 and a determination that the Applicant be surrendered pursuant to s 22 of that Act. The Applicant contends that for the purposes of the Act that: (i) he is not an " extraditable person " within ss 6 and 16 ; (ii) the offence in respect of which extradition is sought is not an " extradition offence " within ss 5 and 16 ; and (iii) he is not an " eligible person " within s 22. These contentions, if made out, are said to constitute jurisdictional error on the part of the Respondent Minister. 3 On 19 February 2008 a Further Amended Notice of Motion was filed on behalf of the Respondent Minister seeking the dismissal of the Further Amended Application . It is that Motion which is presently before the Court. 4 It is considered that each of the Applicant's contentions should be rejected and that the orders as sought in the Respondent Minister's Motion should be made. 8 A warrant under s 18(2) was thereafter issued on 20 December 2006 by Magistrate Madden, a magistrate of the Australian Capital Territory. On the same day a letter was forwarded by the Magistrate to the then Attorney-General (the Honourable Phillip Ruddock) identifying the Applicant and stating: As required by s 18(2)(b)(ii) of the Extradition Act 1988 I advise that on 20 December 2006 the abovenamed consented to being surrendered to the Federal Republic of Germany in relation to the following offence: 1. attempted incitement to commit murder contrary to sections 211 and 30 of the German Criminal Code (1 count). I enclose a copy of the warrant under subsection 18(2)(b)(i) that I signed today. 9 On 5 July 2007 the Applicant was advised that the Minister had determined under s 22 that the Applicant was to be surrendered to Germany and that a warrant had been issued for his surrender. 49 Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13] [15] per Rares J, [2007] FCAFC 191 ; 99 ALD 235. See also Brock v Minister for Justice & Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination.


case_title: Tervonen v Minister for Justice & Customs (No 2) [2007] FCA 1684 , 98 ALD 589


case_title: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 , 46 NSWLR 55


case_title: Vasiljkovic v Commonwealth [2006] HCA 40 , 227 CLR 614


case_text: There have been three decisions of the Full Court since SZBYR which touch on the aspect of s 424A previously under discussion. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 the Full Court looked at the transcript of proceedings and reasons of the Tribunal in determining the applicability of s 424A: see [58], [64]-[68]. Their Honours at [70] referred to what was said in SZBYR at [18], that is to say on the meaning of "information" and whether it extends to doubts, inconsistencies or the absence of evidence, but not to [17].


case_text: Turning to the Minister's alternative argument based on s 424A(3)(b) , I agree that the appellant "gave" the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal's questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43] , see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] , NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [61] .


case_text: Their Honours went on to hold that in any event the discretion under the principles discussed in Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 would be exercised because no useful result could ensue from the grant of the relief. Even if the appellants were correct as to the proper operation of s 424A they could not overcome the Tribunal's finding that their claim lacked the requisite Convention nexus.


case_text: Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, after referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 , said at [15]-[22]: [15] This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review . Rather, the tribunal's obligation is limited to the written provision of "particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". What, then, was the "information" that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite "information" as being the "inconsistencies" between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. [16] Four points must be noted about this submission. First, while questions might remain about the scope of par (b) of s 424A(3) , it was accepted by both sides that information "that the applicant gave for the purpose of the application" did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; [(2001) 110 FCR 27] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; [(2006) 150 FCR 214]. Accordingly, no occasion now arises for this Court to determine whether that assumption was correct. [17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal" , or "the tribunal's published reasons" . The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance and independently of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. [18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; [(2004) 206 ALR 471 at 477] that the word "information" ...does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc... If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. [19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, [Footnote states: "Notably, in the sequential interaction of ss 424A , 424B , 424C (2) and 425 (2) of the Act."], no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself. [20] Moreover, supposing the appellants had responded to a written notice provided by the tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by or remaining despite the original response to the invitation to comment? If so, was the tribunal obliged to issue new notices for so long as the appellants' testimony lacked credibility? If the appellants' desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error. [21] The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the "unbundling" of tribunal reasoning. [Footnote states: "Compare VAF with SZEEU ."] [22] Once the limited scope of s 424A is appreciated, and once the proper meaning of the word "reason" in s 424A(1)(a) is discerned, the apparent need for "unbundling" is correspondingly reduced. The respondent minister's concern about "minor" or "unimportant" matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of "unbundling". (Emphasis added.)


case_text: His Honour noted that counsel for the appellant had nonetheless suggested that the use of the phrase "future conditional" in the High Court's decision in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 required the Tribunal to give notice of this in the s 424A letter. The learned Magistrate said at [21]: The reality is of course that in its findings and reasons in other words those parts of the decision that operate as a springboard for s 424A to apply the Tribunal made no reference whatever to the bond issue. It referred to another of other matters which went to the applicant's credit, but not that one. The learned Magistrate then said that even if it were shown that the Tribunal had breached s 424A he would reject the application for constitutional writs on discretionary grounds. Findings made in relation to those matters in respect of its decision were "unimpeachable" so there would be no utility in returning the matter. 13 On the appeal counsel for the appellant argued: 1. SZBYR establishes that it is not the Tribunal's published reasons or its reasoning process which determines the applicability of s 424A. The learned magistrate erred in treating the absence of any mention of the $20,000 bond issue in the Tribunal's reasons as determinative; 2. The material about the bond was "information" within the meaning of s 424A. It was not a case of mere inconsistency or omission; 3. The information went directly to the issue whether the appellant was to be believed in all his claims; 4. The information would "undermine" the appellant's claims to be a person to whom Australia owed protection obligations because he was not to be believed in his claims. 15 To understand the arguments on the present appeal it is necessary to refer in some detail to what the majority of the High Court said in SZBYR . In that case the information said to have attracted s 424A were claims made in a statutory declaration in support of the appellant's visa application. The Tribunal had drawn the appellant's attention to discrepancies between his oral evidence and the written claims in the statutory declaration. The appellant's only explanation was that his memory was poor. 18 There have been three decisions of the Full Court since SZBYR which touch on the aspect of s 424A previously under discussion. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 the Full Court looked at the transcript of proceedings and reasons of the Tribunal in determining the applicability of s 424A: see [58], [64]-[68]. Their Honours at [70] referred to what was said in SZBYR at [18], that is to say on the meaning of "information" and whether it extends to doubts, inconsistencies or the absence of evidence, but not to [17]. 19 In SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 the information in question was the fact that the appellant had made an earlier application for protection visa which was different from the claim the subject of the instant appeal. The Tribunal sent the appellant a s 424A letter. The appellant's only challenge to its adequacy was a claim that it should have been sent prior to the s 425 hearing. Their Honours at [34] found "no express statutory basis for imposing such a temporal requirement". The purpose of s 424A was to ensure that the overall decision-making process, of which the s 425 hearing is only part, is fair. Their Honours said at [34]: That this is so appears from SZBYR at [17] where the majority held that the s 424A process must occur in advance of, and independently of, the Tribunal's reasoning process, not prior to the s 425 hearing. The Full Court had earlier at [33] said that "considers" in s 424A(1)(a) bears the meaning "be of the opinion that". Their Honours said: Clearly, it is that meaning which is intended in s 424A. The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information. It is not apparent that the Tribunal took the course contended for by the appellant . 20 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 the Full Court quoted [17] and [18] from SZBYR and stated at [25]: It is not necessary for present purposes to enter upon the question as to how far, in light of the above observation, a court can or should enter upon a consideration of the Tribunal's actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to the making of that decision had arisen. 25 In SZBYR at [22] the majority rejected the concept of "unbundling". The expression appears in the judgment of Allsop J in Paul at [99] and later in SZEEU at [208] where his Honour said: Whether or not information is the reason or part of the reason for affirming the decision was discussed in Paul at [99]-[100], [107]-[108] and [116] and by VAF at [29]-[41]. The approaches taken by the respective majorities in VAF and Paul were very similar. The majority in VAF did not disapprove of Paul and to a degree built upon the reasoning in it. Aspects common to the approaches in both Paul and VAF were as follows: (a) To identify the reason or part of the reason for the affirmation of the decision requires some "unbundling" of the reason for the affirmation of the decision which is ultimately the relevant lack of satisfaction of the existence of protection obligations. (b) In circumstances where (as is usually the case) the complaint is in the context of a decision of the tribunal that has been made supported by a set of reasons generally this is to be undertaken by reference to the reasons of the tribunal in the context in which one finds them. 27 SZBYR , and in particular [17] of the majority judgment, essentially says that a court must assess the "information" in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X's statement, being "evidentiary material or documentation", would be a reason for the Tribunal's affirming the refusal of a visa. It would "undermine" his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant's credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal's attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons. 28 Conditional clauses generally express a direct condition, indicating that the truth of the host clause is dependant on the fulfilment of the condition in the conditional clause: Greenbaum, The Oxford English Grammar (1996) p 340. The meaning conveyed by s 424A(1)(a) is that the Tribunal considers that if the information is true (conditional clause), it would be the reason, or a part of the reason, for affirming the decision (host clause). Ex hypothese, the Tribunal does not know whether the information is true or not. That is the point of giving the applicant the opportunity to rebut, qualify or explain the information. That is why subsequent use made by the Tribunal in its reasons, on the basis that the information is true, is no guide to whether the Tribunal at the earlier point in time should or should not have applied s 424A. 29 It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims. 30 Accordingly, counsel for the appellant was correct in submitting that the learned Magistrate's reasons in the present case were flawed. He reached the right decision for the wrong reasons. He thought the $20,000 bond issue could not have been a reason for affirming the decision if the Tribunal never mentioned it. Post- SZBYR the correct approach would have been for the Tribunal to consider whether the $20,000 bond information, if true, would be the reason, or part of the reason, for affirming the decision to refuse the appellant's protection visa application. For all the Tribunal knew, the appellant's account may have been true. The fact that he named the friends suggests a reason why the Tribunal did not pursue the matter further. Even if the account was untrue, and in fact the appellant provided the $20,000 himself, at most it might suggest he was lying when he said he worked illegally because he needed money. Either way, the issue was quite peripheral. Untruthfulness of the appellant's account would not be the reason, or part of the reason, for affirming the decision under review. 31 However, discretionary relief would properly have been refused anyway, as the learned Magistrate intimated, because no useful result could ensue: SZBYR at [29].


case_title: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609


case_title: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627


case_text: In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 the Full Court quoted [17] and [18] from SZBYR and stated at [25]: It is not necessary for present purposes to enter upon the question as to how far, in light of the above observation, a court can or should enter upon a consideration of the Tribunal's actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to the making of that decision had arisen.


case_text: Counsel for the Minister argued: 1. Because the Tribunal did not mention the bond issue in the s 424A letter or its findings and reasons it was not "the reason, or part of the reason, for affirming the decision under review". (Thus the Minister's primary argument was that the Magistrate was correct in determining the applicability of s 424A by referring to the Tribunal's reasons); 2. On its face it may have been true that the appellant's friends put up the $20,000. The bond information did not contain a "rejection, denial or undermining" of the appellant's claim to be a person to whom Australia owed protection obligations; 3. The Tribunal was not obliged to comply with s 424A prior to the hearing under s 425: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 (I do not believe the appellant argued that the Tribunal was obliged to do so); 4. In any event, the bond information was excluded from the operation of s 424A by subs (3)(b) since it was information the appellant "gave" to the Tribunal. 19 In SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 the information in question was the fact that the appellant had made an earlier application for protection visa which was different from the claim the subject of the instant appeal. The Tribunal sent the appellant a s 424A letter. The appellant's only challenge to its adequacy was a claim that it should have been sent prior to the s 425 hearing. Their Honours at [34] found "no express statutory basis for imposing such a temporal requirement". The purpose of s 424A was to ensure that the overall decision-making process, of which the s 425 hearing is only part, is fair. Their Honours said at [34]: That this is so appears from SZBYR at [17] where the majority held that the s 424A process must occur in advance of, and independently of, the Tribunal's reasoning process, not prior to the s 425 hearing. The Full Court had earlier at [33] said that "considers" in s 424A(1)(a) bears the meaning "be of the opinion that". Their Honours said: Clearly, it is that meaning which is intended in s 424A. The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information. It is not apparent that the Tribunal took the course contended for by the appellant .


case_title: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471

case_text: Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, after referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 , said at [15]-[22]: [15] This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review . Rather, the tribunal's obligation is limited to the written provision of "particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". What, then, was the "information" that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite "information" as being the "inconsistencies" between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. [16] Four points must be noted about this submission. First, while questions might remain about the scope of par (b) of s 424A(3) , it was accepted by both sides that information "that the applicant gave for the purpose of the application" did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; [(2001) 110 FCR 27] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; [(2006) 150 FCR 214]. Accordingly, no occasion now arises for this Court to determine whether that assumption was correct. [17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal" , or "the tribunal's published reasons" . The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance and independently of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. [18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; [(2004) 206 ALR 471 at 477] that the word "information" ...does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc... If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. [19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, [Footnote states: "Notably, in the sequential interaction of ss 424A , 424B , 424C (2) and 425 (2) of the Act."], no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself. [20] Moreover, supposing the appellants had responded to a written notice provided by the tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by or remaining despite the original response to the invitation to comment? If so, was the tribunal obliged to issue new notices for so long as the appellants' testimony lacked credibility? If the appellants' desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error. [21] The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the "unbundling" of tribunal reasoning. [Footnote states: "Compare VAF with SZEEU ."] [22] Once the limited scope of s 424A is appreciated, and once the proper meaning of the word "reason" in s 424A(1)(a) is discerned, the apparent need for "unbundling" is correspondingly reduced. The respondent minister's concern about "minor" or "unimportant" matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of "unbundling". (Emphasis added.) 25 In SZBYR at [22] the majority rejected the concept of "unbundling". The expression appears in the judgment of Allsop J in Paul at [99] and later in SZEEU at [208] where his Honour said: Whether or not information is the reason or part of the reason for affirming the decision was discussed in Paul at [99]-[100], [107]-[108] and [116] and by VAF at [29]-[41]. The approaches taken by the respective majorities in VAF and Paul were very similar. The majority in VAF did not disapprove of Paul and to a degree built upon the reasoning in it. Aspects common to the approaches in both Paul and VAF were as follows: (a) To identify the reason or part of the reason for the affirmation of the decision requires some "unbundling" of the reason for the affirmation of the decision which is ultimately the relevant lack of satisfaction of the existence of protection obligations. (b) In circumstances where (as is usually the case) the complaint is in the context of a decision of the tribunal that has been made supported by a set of reasons generally this is to be undertaken by reference to the reasons of the tribunal in the context in which one finds them. 26 In both Paul and VAF there was an examination of the Tribunal's reasons in the course of determining the "reason or part of the reason" issue.


case_text: what basis, then, can it be said, as ASIC contends, that the sale and lease-back arrangements in question involve the client making a "financial investment"? This is not an easy question to answer. The proper approach in arriving at the answer must be based on the principle that the relevant provisions should be construed broadly: Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121. Adopting a broad view, it can be said that the investors (the clients) have contributed their homes for them to be used to generate benefits for themselves. The first benefit was the periodic tax free payments extending over many years. The homes were to generate this benefit as they were to be on-sold to investors who would provide the necessary funds. Also, there were benefits, or potential benefits, arising out of the leases. It will be remembered that each lease was for the client's life at what appears to be less than the market rent. This gave rise to two benefits; one actual the other potential. First, there was the low rent which was an immediate benefit. Second, there was the potential benefit that would arise if the client were to live longer than expected according to the life tables. Previously I noted that the consideration for the life tenancy (the amount deducted from the purchase price for the property) was based on life tables. If the client outlived the age prescribed in those tables he would receive a benefit; effectively the right to occupy the home for the additional period at no cost. Assuming these to be relevant benefits for the purpose of the definition of "financial investment" it is still necessary to decide whether the word "gives" in the phrase "gives money or money's worth" includes a sale with a lease-back. Ordinarily the word "gives" would not carry that meaning. I observe, however, that in the note to s 12BAA there are examples of what acts constitute making a financial investment. One example is the subscription of money for shares in a company. In substance this is the acquisition of an asset for its exchange value in the hope of making either a capital profit or receiving income. If "gives" includes the purchase of an asset there is no reason why it should not also include a sale. To this point I have not dealt with whether the statements about the client having a "guaranteed tenancy" or a "guaranteed lifetime tenancy" are misleading. In my view they are not for the reason that the lifetime tenancy which had been granted to the client was in fact "guaranteed" in the only relevant sense, namely that it could not be defeated by MFL, MFLP or any person claiming through them.


case_text: base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.


case_title: Downie v Lockwood [1965] VR 257


case_text: the way in which the scheme was marketed, the provisions in the agreements by which money was promised to be paid to the clients also involved misleading or deceptive conduct. By promising to make the payments, the purchaser company was implicitly stating that it had the capacity to meet that obligation: Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217. In truth the company had no such capacity. These conclusions do not, however, establish contraventions of the relevant sections. Those sections proscribe misleading and deceptive conduct "in relation to financial services" (s 12DA), or in connection with the supply or possible supply of "financial services" (s 12DB), or in connection with the sale or grant or the possible sale or grant of a "financial product" that involves an interest in land (s 12DC), or in relation to a "financial product" or a "financial service" (s 1041H). It is therefore necessary to consider whether the conduct which I have found to be misleading concerned a "financial service" or a "financial product". As we shall see the two concepts, both of which are defined in the statutes, are interrelated. The relevant provisions in the Corporations Act and the ASIC Act are almost the same. For convenience I will refer to the ASIC Act. Section 12BAB(1) of the ASIC Act provides that a person provides a "financial service" if they, among other things, provide "financial product advice" or deal in a "financial product". Section 12BAB(5) defines "financial product advice" to mean a recommendation or statement of opinion or report that is intended to influence a person in making a decision in relation to a particular "financial product" or class of "financial products".


case_title: McMahon v Swan [1924] VLR 397


case_title: Robertson v Keith (1870) 1 VLR(E) 11


case_title: The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10


case_text: my opinion, there is sufficient doubt as to whether such a conjunctive construction can be said even to be reasonably arguable to warrant reconsideration by a Full Court ( Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9). There was no claim for indemnity made by ARMA during the currency of the first policy. The primary judge noted that Permanent's case was primarily based on the second policy ( Permanent (No 1) at [20]). The primary judge seems to have accepted that the applicable insurance cover related to the second policy ( Permanent (No 1) at [39]).


case_text: submissions to the primary judge were to the effect that the letters from Permanent to Mr Teves were couched in words that did not amount to ' a claim nor an assertion of the breach of duty ' but merely raised ' the possibility of overvaluation, foreshadowing future action in the event of a shortfall ' ( Permanent (No 1) at [23]). It was put to his Honour that, as there was ' no claim as such then pending ' there was no basis for any claim to indemnity unless further events transpired or ' crystallised ' ( Permanent (No 1) at [23]). His Honour referred to the decision of Lindgren J in FAI General Insurance Co Limited v McSweeney (1999) 10 ANZ Insurances Cases 61-443 at 75,033-4 that circumstances ' may give rise to a claim ' where the ' bringing of a claim against the insured in respect of them was a "definite risk" or a "real possibility" or "on the cards" '. The primary judge concluded that it was reasonably arguable that Exclusion 4.1 had no operation, at least because of the lack of clarity in the letters as to whether any loss or damage would crystallise by way of actual sale of the properties in question ( Permanent (No 1) at [39]). On that basis, his Honour concluded that it was open to argument that Exclusion 4.1 may have no operation. In coming to that conclusion, based upon the crystallisation of the loss of damage, his Honour was considering a "Claim", that is in the sense of a bringing of a claim in the nature of an originating process (as in McSweeney ). His Honour seems to have dealt compendiously with Claim and claim or, alternatively, dealt with the former but not with the latter. He relied on the absence of any sale of the properties the subject of ARMA's valuations prior to the commencement of the second policy ( Permanent (No 1) at [39]). His Honour recorded the insurers' contention that there was no liability under the second policy because of an absence of disclosure of the notifications by Permanent to Mr Teves ( Permanent (No 1) at [26]). His Honour did not consider the effect of those notifications on Exclusion 4.1. The insurers emphasise that this was not a question of disclosure but of awareness of circumstances. His Honour held that it was open to argument that the exclusion clause had no operation but that was in the context of whether loss or damage relevantly crystallised. That was relevant to whether a "Claim" might result but not a "claim" as defined in the policy. The next issue was whether, as submitted by Permanent, even if the notification did constitute knowledge of circumstances which might result in a ' claim ', s 33 of the Insurance Act operated to preclude the Insurers from relying on Exclusion 4.1. Section 33 of the Insurance Act provides: ' No other remedies The provisions of this Division are exclusive of any right that the insurer has otherwise than under this Act in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or incorrect statement.'


case_text: primary judge accepted that the threshold issue before him was whether the foreshadowed claim against the insurers was reasonably arguable, in the sense that it ' could be seriously put ' ( Permanent (No 1) at [5]). His Honour also recognised that, as stated by Mason P (with whom Meagher and Handley JJ agreed) in Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515, the applicable principle is that even though an arguable case against an insurer is established, the Court is ' seized of the discretion to grant leave ' (at [47] citing National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409 at 418). The insurer is at liberty to argue its right to disclaim liability in the proceedings which follow a grant of leave but ' it does not follow...that a court that is positively satisfied of the insurer's entitlement to disclaim, after issue has been joined on that matter as between the plaintiff and the insurer, must exercise the discretion in favour of the grant of leave ' ( Fishwives at [47]).


case_title: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409


case_title: Pech v Tilgals (1994) 94 ATC 4206

case_text: insurers relied upon Pech v Tilgals (1994) 94 ATC 4206 where Dunford J considered a comparable if not identical clause to Exclusion 4.1 and held that it was not concerned with non-disclosure because ' the claims specified are excluded from the cover whether the circumstances are disclosed or not ' (at 4218). The primary judge accepted that Pech was relevant to the second policy. However, his Honour concluded that Pech did not provide ' sufficient bearing ' on the circumstances in this case ( Permanent (No 1) at [30]). His Honour did not consider the impact of the reasoning in Pech on s 33. The primary judge seemed to accept that the applicable policy was the second policy. The insurers relied upon Exclusion 4.1 to ' destroy ' Permanent's case. The insurers asserted a complete defence to the cause of action because the letters from Permanent to Mr Teves constituted, by their content, circumstances of which, at the least, Mr Teves and ARMA ought reasonably to have realised to be circumstances which might result in or intimated ' an assertion, allegation or complaint of any act or omission causing or potentially causing loss or damage ' or ' an intention to seek compensation, damages or other legal relief '. The insurers assert that this was not a question of non-disclosure because Exclusion 4.1 applies whether the circumstances are disclosed to the insurer or not. The primary judge did not consider the application of Exclusion 4.1 for other than non-disclosure, whether a defence was thereby available and whether it was a total answer to the cause of action. The primary judge seemed to accept that the reasoning in Permanent v FAI applied with respect to s 33, the consequence being that the insurers could not rely on Exclusion 4.1. Permanent v FAI concerned a failure to disclose. The insurers' submission that Exclusion 4.1 is not relevantly concerned with a failure to disclose and that s 33 has no application was not dealt with. His Honour did not explain why the reasoning in Pech was not applicable.


case_text: essence it is submitted that there is no arguable case against the insurers, that they have been incorrectly joined in the proceedings and that the primary judge erred in joining the insurers and finding a reasonable cause of action against them in Permanent (No 2) on 4 July 2006 and Permanent Custodians Limited v ARMA Pty Ltd [2006] FCA 640 (' Permanent (No 1) ') on 29 May 2006.


case_text: submitted to his Honour that Exclusion 4.1 provides the insurers with a right to disclaim liability for the failure to disclose a matter ' otherwise than under [the Insurance Act]' and could not be relied upon. Permanent relied upon Permanent Trustee Australia Limited v FAI General Insurance Company Limited (1988) 153 ALR 529 in support of its submission that Exclusion 4.1 is, in effect, a non-disclosure clause for the purposes of s 33. The primary judge recognised that, in Permanent v FAI , Hodgson CJ in Eq was concerned with a claimed exclusion from liability for non-disclosure and with whether the insured was aware of the circumstances which might give rise to a claim. In these circumstances, Hodgson CJ in Eq thought s 33 applied ( Permanent (No 1) at [28]; Permanent v FAI at 589). The primary judge seemed to accept that the reasoning in Permanent v FAI applied with respect to s 33, the consequence being that the insurers could not rely on Exclusion 4.1. Permanent v FAI concerned a failure to disclose. The insurers' submission that Exclusion 4.1 is not relevantly concerned with a failure to disclose and that s 33 has no application was not dealt with. His Honour did not explain why the reasoning in Pech was not applicable.


case_text: nature and history of the proceeding In a judgment delivered on 4 October 2007, Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535 (2007) 243 ALR 356 , I dismissed the application of both applicants in this proceeding. Each of the applicants claimed relief of a declaratory and injunctive nature, as well as damages, in respect of an alleged contravention by the respondent, Mr Hahnheuser, of s 45DB of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act "). When the proceeding was instituted, there was a second respondent, Animal Liberation SA Inc. I also dismissed by consent claims by both applicants against the second respondent, leaving Mr Hahnheuser as the only respondent. Both applicants' claims were in respect of a delay in the export of a shipment of live sheep from the Port of Portland aboard the MV Al Shuwaikh , destined for the Middle East. The delay occurred because Mr Hahnheuser, in concert with other people, entered a feedlot in which the sheep were held prior to being loaded on the vessel, and placed shredded ham in food and water containers, from which the sheep were intended to feed and drink. This caused a delay in the grant of a permit for the export of the sheep.


case_text: Full Court in Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2008] FCAFC 156 (2008) 169 FCR 583 allowed an appeal from my judgment. The Full Court substituted for my orders dismissing the application with costs orders in the following terms: (a) it be declared that on or about 18 and 19 November 2003 at Portland, Victoria, the first respondent, in concert with another person or persons, engaged in conduct for the purpose and which had the effect of preventing and substantially hindering the second applicant from engaging in trade or commerce involving the movement of goods on the vessel MV Al Shuwaikh, being a cargo of live sheep, between Australia and places outside Australia in the Middle East, in contravention of s 45DB(1) of the Trade Practices Act 1974 (Cth) ; (b) the first respondent pay the second applicant's costs. The Full Court also remitted the matter to me for further hearing "in accordance with these reasons." In my reasons for judgment of 4 October 2007, at [37]-[45], I concluded that I was unable to say that the trade or commerce of the first applicant, Rural Export & Trading (WA) Pty Ltd ("Rural Export") was hindered, whether substantially or otherwise. At [46]-[57], I came to the conclusion that the trade or commerce of Rural Export, particularly that of supplying feed to the sheep whilst they were in the feedlot, which ceased when the sheep were loaded onto trucks for carriage to the wharf, was not protected by s 45DB(1) of the Trade Practices Act . The appeal was conducted on the basis that, as I had found, the second applicant, Samex Australian Meat Co Pty Ltd ("Samex") was engaged in trade or commerce involving the movement of goods between Australia and places outside Australia, within the meaning of s 45DB(1). Rural Export did not press any separate argument. It therefore did not challenge my conclusions that its trade or commerce had not been hindered, and was not itself trade or commerce involving the movement of goods between Australia and places outside Australia. The Full Court did not find that my conclusions in those respects were in error. The terms of the declaration made by the Full Court are specific as to the trade or commerce that was hindered or prevented, namely the trade or commerce of the second applicant. At [5] of the Full Court's reasons for judgment, the Full Court said that, if Samex's appeal were to succeed, it would be necessary for me to consider Rural Export's claim under s 82 of the Trade Practices Act , for damages. At [43], the Full Court said: Rural Export and Samex asked that if Samex succeeded the matter be remitted to the primary judge for determination of the questions of damages. The appeal should be allowed, a declaration should be made reflecting the fact that Mr Hahnheuser contravened s 45DB(1) and he should be ordered to pay the costs of the proceedings below and on appeal. I therefore act on the basis that the Full Court's order, remitting the case to me "for further hearing in accordance with these reasons" is an order remitting to me questions of damages in respect of the claims of both Rural Export and Samex.