case_title: University of Western Australia v Gray (No 8) [2006] FCA 1825

case_text: Because of difficulties that arose in ascertaining the identity of the membership of CRI, the matter came back to Court on 27 November 2006 with the receiver seeking an expansion of his powers. For reasons published on 22 December 2006 I made orders expanding the powers of the receiver in the following terms (inter alia): 3. Without limiting the other powers conferred on the receiver by these orders, the receiver have the power to: (a) determine the position that the third respondent should take in these proceedings; (b) have the conduct of these proceedings on behalf of the third respondent; (c) instruct solicitors to appear and to file and serve any documents in the proceedings; and (d) subject to the approval of the Court, enter into and give effect to any agreement for the resolution of all or part of these proceedings so far as they affect the third respondent. 4. For the purposes of orders 2 and 3 of these orders the receiver have all of the rights and powers: (a) of a member of the third respondent; (b) of the third respondent as a shareholder in the second respondent; (c) of the board of management of the third respondent including, without limitation, the power to manage any and all of the assets and undertakings of the third respondent in such manner as he considers appropriate, consistent with the objectives of the third respondent, and for the purposes of the conduct or resolution of these proceedings; (d) as may be reasonably incidental to the pursuit of any of those purposes or the exercise of any of the powers conferred by these orders. 5. In order to enable him properly to discharge his functions and exercise his powers under these orders, the receiver may obtain independent commercial and legal advice as he deems appropriate, including without limitation the advice of senior counsel. 6. The receiver is not required to file security pursuant to Order 26 Rule 3. See: University of Western Australia v Gray (No 8) (2006] FCA 1825 7 Subsequently the University and CRI by its receivers, entered into a further settlement agreement on 22 February 2007 (the Terms of Settlement). It provided for the creation of a new charitable trust in essentially the same terms as had been contemplated by the agreement made on 31 July 2006. It also provided: 3. CRI and UWA instruct Mrs Elizabeth Heenan to prepare the documents required to constitute the Trust in accordance with the following principles: (a) the Trust be a charitable trust; (b) the primary objects of the Trust are to be: (i) to support and promote cancer research and education, including without limitation funding cancer research and education at a state, national and international level; and (ii) to establish, maintain and administer a public fund or funds for any charitable purposes it may decide in relation to cancer research and education. (c) the Trust be managed by a Board of Management initially comprising: (i) a chairman appointed by UWA, CRI and the WA Institute for Medical Research ("WAIMR") jointly; (ii) two nominees proposed by WAIMR; (iii) one nominee appointed by CRI; (iv) one nominee appointed UWA, with the intention that all persons to be appointed to the Board of Management be acceptable to each of UWA, CRI and WAIMR. The University and WAIMR acknowledge that CRI may propose as its nominee a representative of the Walter & Eliza Hall Institute of Medical Research ("WEHI") and the University and WAIMR agree that they will have no objection to a representative of WEHI being appointed to the Board provided the nominee is otherwise appropriately qualified; (d) an external national/international scientific committee ("the scientific committee") be appointed by the Board of Management to advise and assist the Board of Management and to oversee and facilitate the peer review process; (e) the Trust deed will include provisions the purpose of which is to ensure that the Board of Management/the scientific committee observe proper corporate governance principles including those that relate to conflicts of interest in assessing and determining the best method of achieving the Trust's objects and it is specifically agreed that the Trust deed will incorporate: (a) provisions for the utilisation of an international peer review process for the assessment and allocation of grants from the Trust; and b) all research conducted pursuant to grants from the Trust shall be conducted in accordance with the Joint NHMRC/AVCC Statement and Guidelines on Research Practice (1997) or such other guidelines as may replace those guidelines; (f) WAIMR provide administrative support (to be audited annually) to the trust; (g) The Trust deed will include provisions for the establishment of a nominations committee to call for and examine suitable appointees to the Board of Management to replace retiring Board members from time to time; (h) Any disputes between the parties as to the terms of the Trust deed will be resolved by Mrs Heenan having regard to the objects of the Trust, the terms of this document and considerations of fairness and equity. Mrs Heenan must give the parties the opportunity to make representations to her in such manner as she may in her absolute discretion think fit. Mrs Heenan will act as an expert and her decision will be final and binding. 4. Upon the constitution of the Trust and the appointment of its inaugural Board of Management, CRI shall transfer to the Trust all of its assets. ... 6. The Trust will pay any taxation liabilities including stamp duty that may arise in consequence of the transfer of assets referred to in paragraph 4 above, out of those assets. 7. Subject to being empowered by the Federal Court to do so the Receiver of CRI will take all such steps as are necessary to wind up its activities and to be deregistered as an incorporated association. ... 10. CRI and UWA to execute a consent order in the proceedings numbered WAD 292 of 2004 in the Federal Court of Australia providing for the dismissal of UWA's claim against CRI on the basis that no order as to costs is made and that existing orders for costs, if any, be discharged as between CRI and UWA. 8 In accordance with the orders made on 22 December 2006 it was necessary for the University and CRI to seek approval of the settlement agreement. Because that approval process did involve some reference to what occurred in mediation and was opposed by Sirtex, the application for approval was referred to another judge, Graham J.


case_outcome: cited

case_text: On 8 March 2007 Graham J made the following orders: 1. Orders that the agreement for resolution of the applicant's claims for relief against the third respondent as contained in the 'Agreed Settlement Terms' of 22 February 2007 as varied on 2 March 2007 be approved. 2. Directs that this order not be entered before 2:15pm WDST on Friday 9 March 2007. 3. Orders that the second respondent pay 50% of the third respondent's costs of the Notice of Motion dated 28 February 2007. 4. Orders that the second respondent pay 50% of the applicant's costs of the Notice of Motion dated 28 February 2007. 5. Orders that the costs the subject of the earlier orders may be taxed and shall be payable forthwith. University of Western Australia v Gray (No 11) [2007] FCA 377 10 Since those orders were made Sirtex and Dr Gray have filed motions seeking orders which would restrain CRI and its receiver until further order from taking steps to dispose of the shares pursuant to the Terms of Settlement. I directed that the parties file affidavit evidence and written submissions in relation to the motions and reserved judgment on them until today. 11 By its motion filed on 12 March 2007 Sirtex seeks the following orders: 1. The Third Respondent and Mr Mark Conlan, the receiver of the Third Respondent ("the Receiver"), be restrained, until further order, from taking the steps in paragraphs 4, 6 and 7 of the Terms of Settlement dated 22 February 2007 and amended 2 March 2007; 2. Subject to orders 7 to 12 of the orders of the Honourable Justice French made 22 December 2006, the Third Respondent and the Receiver be restrained, until further order, from dealing (whether by transfer, alienation, encumbrance or pursuant to the Terms of Settlement dated 22 February 2007 and amended 2 March 2007 or otherwise) in any shares held by it (whether beneficially or otherwise) in the Second Respondent. 3. There be liberty to apply to vary or discharge the above orders at short notice. 4. Such further or other orders as the Court may consider appropriate.


case_outcome: applied

case_text: Such orders are only made in exceptional circumstances. In Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch 55 at 62 Ormrod LJ identified what he described as 'three essential preconditions for the making of such an order'. They were: 'First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their procession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.' 7 In order to satisfy the Court that it is appropriate to make the orders sought the applicant relies on two affidavits, sworn by its managing director, and affidavits of Jian Ping Gao and Chen Ben He. 8 Having read those affidavits and considered submissions made by counsel appearing for the applicant I have been persuaded that the first precondition identified by Ormrod LJ has been satisfied. The pictures appearing on t-shirts being sold by the defendants appear to be identical with those commissioned by the applicant.


case_outcome: affirmed

case_title: SZIKZ v Minister for Immigration & Anor [2007] FMCA 487

case_text: This is an appeal from a decision of a Federal Magistrate who dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa. Details of the appellant's visa application, the decision of the Tribunal and the reasons of the Federal Magistrate are set out in the decision of the Federal Magistrate, SZIKZ v Minister for Immigration [2007] FMCA 487 , which is available on the Internet. 2 The appellant is a citizen of the People's Republic of China. In his protection visa application he claimed a well-founded fear of persecution on the basis of being a Falun Gong practitioner and an imputed role as a regional head of Falun Gong. He claimed that his wife became a member in 1996 and he became a member in 1997 after learning about Falun Gong from her. He claimed his wife was the leading member in their town and had connections with organisations all over the world. He claimed that in 1999 he organised members for the district for demonstrations and missions in Beijing. In January 2005 the appellant was detained by police for 10 days. The police told him that they believed he was the head of Falun Gong in the town. His wife bribed a government official for his release and obtained a passport and a visa to Australia. 3 On 25 November 2005 the Tribunal wrote to the appellant inviting him to attend a hearing on 6 January 2006. On 5 December the Tribunal received a change of contact details form indicating that the appellant still lived at his residential address but his mailing address had changed. On 6 December 2005 the Tribunal sent a letter to the appellant at his new mailing address enclosing a copy of the hearing invitation letter. The earlier hearing letter sent on 24 November was returned to the Tribunal with advice that the appellant no longer lived at that address. The appellant did not attend at the hearing on 6 January 2006 and did not contact the Tribunal to explain his failure to attend.


case_outcome: followed

case_title: Brailsford v Tobie (1888) 10 ALT 194

case_text: In Issitch [2000] FCA 477 ; 172 ALR 586 at [32] (pp 594 595), Drummond J (with whom Spender and Katz JJ agreed) said: [32] But once the appellant decided to answer the claim made on her in respect of the $110,167 in the way she did, she was not entitled thereafter to set up in the alternative the inconsistent answer she now suggests she would also have relied on, if only absence of consideration had been specifically pleaded by the trustee. A party can as a general rule plead inconsistent sets of facts in the alternative (cf O 11 r 8(2); Re Morgan (1887) 35 Ch D 492 and Delfino v Trevis (No 1) [1963] NSWR 191 at 196), but not where one of those sets must be known to the party to be false. It has long been recognised that such a pleading is embarrassing and will be struck out. In Brailsford v Tobie (1888) 10 ALT 194 at 195, the defendant pleaded two factually inconsistent accounts in justification for not having paid the moneys claimed by the plaintiff. Holroyd J ordered that the defendant elect which one of these two cases she would maintain, saying: ... I think it would be most improper to allow the defendant to plead as she has done. The actual facts must be within her own knowledge, and that being so she has set up two sets of facts inconsistent with one another. If this were allowed it would be permitting a party knowing the facts to deliberately place on the record statements, one or other of which must be known to be a lie. This, in my opinion, ought not to be allowed. 58 The requirement to elect imposed by Holroyd J on the defendant in Brailsford v Tobie (1888) 10 ALT 194 occurred in circumstances where the two inconsistent sets of facts appeared in a single pleading, not in different pleadings in different courts as is the case here. The applicants do not plead inconsistent sets of facts in the Statement of Claim in this Court if the pleading is viewed in isolation. However, the principle which underlies the observations made by the Full Court in Issitch [2000] FCA 477 ; 172 ALR 586 is that a litigant ought not to be permitted to advance a pleaded case which is inconsistent with another pleaded case in circumstances where one of those cases is known to the litigant to be a false case. Whilst it must be accepted that inconsistent sets of facts may be pleaded in the alternative in the same pleading, pleadings of that kind need to make very clear that the cases are to be put in the alternative and need also to make very clear what the alternatives are. The principle which permits the pleading of inconsistent sets of facts in the alternative does not authorise the pleading of inconsistent cases where one of the cases is known to the party who pleads it to be false. This is so whether the cases are pleaded in one pleading or in different pleadings. Propounding a case which is known to be a false case is an abuse of process. Doing so solely in order to obtain a strategic advantage by invoking the cross-vesting legislation is a flagrant abuse of process.


case_text: In Issitch v Worrell [2000] FCA 477 ; (2000) 172 ALR 586 , the Full Court of this Court considered the question of whether the appellant in that case would be permitted on appeal to conduct her case in a way which was "... factually inconsistent in a radical way ..." with the case which she had conducted at trial. 57 In Issitch [2000] FCA 477 ; 172 ALR 586 at [32] (pp 594 595), Drummond J (with whom Spender and Katz JJ agreed) said: [32] But once the appellant decided to answer the claim made on her in respect of the $110,167 in the way she did, she was not entitled thereafter to set up in the alternative the inconsistent answer she now suggests she would also have relied on, if only absence of consideration had been specifically pleaded by the trustee. A party can as a general rule plead inconsistent sets of facts in the alternative (cf O 11 r 8(2); Re Morgan (1887) 35 Ch D 492 and Delfino v Trevis (No 1) [1963] NSWR 191 at 196), but not where one of those sets must be known to the party to be false. It has long been recognised that such a pleading is embarrassing and will be struck out. In Brailsford v Tobie (1888) 10 ALT 194 at 195, the defendant pleaded two factually inconsistent accounts in justification for not having paid the moneys claimed by the plaintiff. Holroyd J ordered that the defendant elect which one of these two cases she would maintain, saying: ... I think it would be most improper to allow the defendant to plead as she has done. The actual facts must be within her own knowledge, and that being so she has set up two sets of facts inconsistent with one another. If this were allowed it would be permitting a party knowing the facts to deliberately place on the record statements, one or other of which must be known to be a lie. This, in my opinion, ought not to be allowed. 58 The requirement to elect imposed by Holroyd J on the defendant in Brailsford v Tobie (1888) 10 ALT 194 occurred in circumstances where the two inconsistent sets of facts appeared in a single pleading, not in different pleadings in different courts as is the case here. The applicants do not plead inconsistent sets of facts in the Statement of Claim in this Court if the pleading is viewed in isolation. However, the principle which underlies the observations made by the Full Court in Issitch [2000] FCA 477 ; 172 ALR 586 is that a litigant ought not to be permitted to advance a pleaded case which is inconsistent with another pleaded case in circumstances where one of those cases is known to the litigant to be a false case. Whilst it must be accepted that inconsistent sets of facts may be pleaded in the alternative in the same pleading, pleadings of that kind need to make very clear that the cases are to be put in the alternative and need also to make very clear what the alternatives are. The principle which permits the pleading of inconsistent sets of facts in the alternative does not authorise the pleading of inconsistent cases where one of the cases is known to the party who pleads it to be false. This is so whether the cases are pleaded in one pleading or in different pleadings. Propounding a case which is known to be a false case is an abuse of process. Doing so solely in order to obtain a strategic advantage by invoking the cross-vesting legislation is a flagrant abuse of process.


case_outcome: distinguished

case_text: As to the broader abuse of process point, Senior Counsel for the applicants submitted that the present case was on all fours with a number of decisions in this Court which have dealt with the cross-vesting legislation. In particular, he relied upon Palm Springs Limited v Darling [2002] FCAFC 239 ; (2002) 123 FCR 527 and Morningstar Research Pty Ltd v Fiduciary Ltd [2003] FCA 870 ; (2003) 131 FCR 236. 64 After reviewing two authorities in this Court ( Palm Springs [2002] FCAFC 239 ; 123 FCR 527 and Morningstar [2003] FCA 870 ; 131 FCR 236) , Mr West QC submitted that it was a legitimate tactical procedure for the applicants to engage the jurisdiction of this Court so as to enable the proceeding commenced in this Court as part of that strategy to be transferred to the Supreme Court of New South Wales in circumstances where the facts that such proceedings were pending and were related to other proceedings in a State court or tribunal were critical factors in enabling the applicants to have the McCauslands' IRC proceedings removed into the Supreme Court even though no substantive proceedings were on foot in that Court and even though that Court ordinarily had no jurisdiction to hear and determine those IRC proceedings. Mr West said that, expressed in those terms, such a use of this Court's processes was not improper nor did it constitute an abuse of the process of this Court. 80 Mr West also referred me to Morningstar [2003] FCA 870 ; 131 FCR 236. In Morningstar , Hely J succinctly explained the way in which the current cross-vesting legislative scheme is being utilised by litigants (see [2003] FCA 870 ; 131 FCR 236 at [15] [18], pp 239 240). 81 In Morningstar [2003] FCA 870 ; 131 FCR 236 , as in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , there were real disputes in several courts on foot at the same time. The first of those proceedings was a suit in the Equity Division of the Supreme Court brought by the group which Hely J described as " the Rich interests ". The second proceeding was a proceeding commenced in the IRC by the Rich interests seeking relief pursuant to s 106 of the Industrial Relations Act 1996 (NSW). The next important proceeding was the filing by the Morningstar interests against the Rich interests of a significant cross-claim in the Supreme Court proceedings. The last proceedings to be commenced were the proceedings in the Federal Court commenced by the Morningstar interests. The Statement of Claim in the Federal Court proceedings in effect replicated the cross-claim filed by the Morningstar interests in the Supreme Court proceedings. 82 The basis of the contention advanced by the Rich interests in Morningstar [2003] FCA 870 ; 131 FCR 236 to the effect that the Federal Court proceedings were an abuse of the process of the Court was that there were two sets of proceedings substantially seeking the same relief upon the same grounds on foot at the same time. These duplicate actions were the action on the cross-claim in the Supreme Court proceedings and the Federal Court proceedings. The Rich interests contended that the Federal Court should not permit both actions to be prosecuted at the same time and that, in the circumstances of that case, the Federal Court proceedings having been commenced last, those proceedings should be dismissed or stayed. Critical to his Honour's reasoning was the circumstance that the Morningstar interests conceded that they could not prosecute at the same time both the cross-claim in the Supreme Court and their claims in the Federal Court. The Morningstar interests also tendered evidence to the effect that they would never have filed a cross-claim in the Supreme Court proceedings had they been aware at the time that they did so that the Rich interests had commenced their IRC proceedings. His Honour accepted that evidence. 83 In effect, his Honour approached his consideration of the application before him as if the cross-claim in the Supreme Court proceedings was no longer on foot, given the terms of an undertaking provided to the Court by the Morningstar interests to the effect that they would not prosecute the claims articulated in that cross-claim and given the evidence tendered on their behalf as to what they would have done had they known of the existence of the IRC proceedings. 84 In Morningstar [2003] FCA 870 ; 131 FCR 236 at [26] (p 242), his Honour said: [26] I accept, as the submissions of the Morningstar interests concede, that their purpose in commencing the Federal Court proceedings was to have the entirety of the disputes between them and the Rich interests dealt with by one court, utilising the procedures under the cross-vesting legislation. However, this is an advantage for which the law provides, and the decision of the Full Court in Palm Springs Ltd v Darling establishes that it is not an abuse of process to commence a proceeding for the purpose of achieving that advantage. His Honour said at [29] (p 242) as follows: [29] As the Full Court observed in Palm Springs Ltd v Darling , the present case is a world away from the kind of collateral benefit that Dr Spautz sought: the acquiescence of defendants to demands which had no connection with his criminal defamation action. The Morningstar interests are not seeking an object beyond that which the legal process offers. If there is a problem for the Morningstar interests it does not lie the fact that they do not genuinely seek to obtain the relief sought in the cross claim and in these proceedings. Clearly they do. If there is a problem, it lies in the fact that the Morningstar interests have asked for that relief twice, and from two different courts. 85 There was an acceptance by the Rich interests in Morningstar [2003] FCA 870 ; 131 FCR 236 that the claims made by the Morningstar interests in their cross-claim in the Supreme Court and in their Statement of Claim in the Federal Court were genuine claims and were not being agitated for an improper purpose such as the type of collateral benefit sought by Dr Spautz in the proceedings to which reference was made by the Full Court in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 at [22] (p 532) and again at [27] (p 533). 86 In my judgment, the present case can be distinguished from Morningstar [2003] FCA 870 ; 131 FCR 236. My reasons for doing so are substantially the same as the reasons which I have given for distinguishing Palm Springs [2002] FCAFC 239 ; 123 FCR 527. To use the words of Hely J: The applicants " ... do not genuinely seek to obtain the relief ... " which they have sought in the proceedings in this Court. 87 Accordingly, I am of the view that neither Palm Springs [2002] FCAFC 239 ; 123 FCR 527 nor Morningstar [2003] FCA 870 ; 131 FCR 236 requires me to reject Mr McCausland's application. On the contrary, the reasoning in both of those cases requires that I should accede to it.


case_text: As to the broader abuse of process point, Senior Counsel for the applicants submitted that the present case was on all fours with a number of decisions in this Court which have dealt with the cross-vesting legislation. In particular, he relied upon Palm Springs Limited v Darling [2002] FCAFC 239 ; (2002) 123 FCR 527 and Morningstar Research Pty Ltd v Fiduciary Ltd [2003] FCA 870 ; (2003) 131 FCR 236. 64 After reviewing two authorities in this Court ( Palm Springs [2002] FCAFC 239 ; 123 FCR 527 and Morningstar [2003] FCA 870 ; 131 FCR 236) , Mr West QC submitted that it was a legitimate tactical procedure for the applicants to engage the jurisdiction of this Court so as to enable the proceeding commenced in this Court as part of that strategy to be transferred to the Supreme Court of New South Wales in circumstances where the facts that such proceedings were pending and were related to other proceedings in a State court or tribunal were critical factors in enabling the applicants to have the McCauslands' IRC proceedings removed into the Supreme Court even though no substantive proceedings were on foot in that Court and even though that Court ordinarily had no jurisdiction to hear and determine those IRC proceedings. Mr West said that, expressed in those terms, such a use of this Court's processes was not improper nor did it constitute an abuse of the process of this Court. 72 In Palm Springs [2002] FCAFC 239 ; 123 FCR 527 a Full Court of this Court said at [26] [32] (pp 533 534): 26 There can be no doubt, and Palm Springs has frankly conceded from the outset of the Federal Court proceeding, that its intention is to seek to have the Federal Court proceeding cross-vested to the Supreme Court. It is equally clear however, and his Honour in the passage at [27] obviously accepted, that Palm Springs could not itself determine whether or not the Federal Court would make a cross-vesting order. If such an order were to be refused, Palm Springs' intention, as accepted by his Honour, is to pursue its claim to conclusion in the Federal Court. 27 We do not consider that any abuse of process was, or is, involved. What Palm Springs seeks is relief under the Trade Practices Act and the Corporations Act . If its cross-vesting application succeeds it will seek that relief in the Supreme Court, in the same proceeding . That proceeding will have been lawfully submitted to the jurisdiction of the Supreme Court pursuant to the Commonwealth Cross-Vesting Act. So what Palm Springs hopes to achieve is the very relief the Trade Practices Act and the Corporations Act hold out. The present case is a world away from the kind of collateral benefit that Dr Spautz sought: the acquiescence of defendants to demands which had no connection with his criminal defamation action. Palm Springs is not seeking an object "beyond that which the legal process offers": Williams v Spautz at 523. Seeking one forum in which all issues could be tried is a legitimate advantage for Palm Springs, indeed, as we shall later observe, for both parties: Bell Group (In liq) v Westpac Banking Corporation (1996) 20 ACSR 762 at 774 per R D Nicholson J. 28 Thus, the most that can be said is that the Federal Court proceeding was commenced in this Court, rather than in the Supreme Court, because of the forensic advantage that was perceived to be available under the cross-vesting legislation. There is no basis in the material before the primary judge to conclude, and his Honour did not conclude, that the predominant purpose for commencing the Federal Court proceeding, claiming the relief set out in the application, was other than to obtain that relief. There is no reason to conclude that the claims for relief would not be prosecuted to finality in the Federal Court, if an application for transfer under the cross-vesting legislation is refused, or in the Supreme Court, if such an application is granted. 29 In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 725 Rogers AJA said: "It is important that full effect be given by the courts to the imaginative and detailed code for ensuring that throughout Australia, disputes are dealt with by the one court and that be the court most appropriate for the particular dispute. Consistently with the preservation of dual State and Federal Court systems and with the State Courts dispensing justice within the State boundaries in appropriate cases, no longer is it appropriate to view the court of another State as a foreign court." 30 The cross-vesting scheme, in its Federal to State and State to State aspects, remains fully operative and, to that extent, the observations of Rogers AJA, with which we agree, are still applicable. To have all disputes between a set of litigants resolved in the one Australian court which is the most appropriate is a legitimate, indeed self-evidently desirable, objective. If, as in the circumstances of the present case, that involves the Federal Court becoming a "jurisdictional transit point", we do not see that as in any way derogating from the dignity of the Court. The Federal Court will only make a cross-vesting order if, inter alia, it is satisfied that the interests of justice will be served. Determining whether the interests of justice are served by the making of an order for which a Commonwealth Act confers express jurisdiction seems to us to be not remote from the judicial function. 31 If Mr Darling's argument is correct, s 5(4) of the Commonwealth Cross-Vesting Act has a severely limited field of operation, at least insofar as applicants are concerned. Applicants seeking cross-vesting orders would need to show that the idea only occurred to them after their proceeding was instituted. To the extent they had cross-vesting in mind when they commenced the proceeding, they would be at risk of having it struck out as an abuse of process before any cross-vesting order could be obtained. 32 In any case, where litigants institute genuine claims with the hope or expectation that they will not proceed to judgment that, in itself, does not mean there is an abuse of process. Many claims are instituted in the hope, often reasonably based, that a settlement will be reached, but in the realisation that, in the absence of settlement, the matter will have to proceed to trial and final determination. 73 In Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , there were two sets of proceedings instituted in the Supreme Court of New South Wales which had some real connection with the proceedings which had been brought in this Court. The first of those two sets of proceedings involved a claim for rectification of a share sale agreement. The second set of Supreme Court proceedings was a proceeding in which Palm Springs sought an order removing the IRC proceedings into the Supreme Court and an order that those proceedings then be consolidated with the extant rectification proceedings in that Court. In the Federal Court proceedings in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , relief was sought under the Trade Practices Act 1974 (Cth) alleging misleading and deceptive conduct in respect of the very same share sale agreement. In the related proceedings in the IRC in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , orders were sought varying that same share sale agreement based upon substantially the same misrepresentations as were to be litigated in the Federal Court. 74 It is thus quite clear that the observations which the Full Court made in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 were in a setting where there was a substantial overlap in the allegations made in the IRC and in the Federal Court and a very real connection between the claims made in those two sets of proceedings and the subject matter of the Supreme Court proceedings. In every sense, there were genuine disputes raised in each of the three Courts where proceedings were on foot. 75 In Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , the Full Court held that there was no basis for a conclusion in that case that the predominant purpose for commencing the Federal Court proceedings was other than to obtain the relief claimed in those proceedings and that there was no reason to conclude that the claim for relief made in the Federal Court would not be prosecuted to finality if an application for transfer to the Supreme Court under the cross-vesting legislation were refused. The Court also held that there was no reason to conclude that that claim would not be prosecuted to finality in the Supreme Court, if an application for transfer were granted. 76 I have formed the contrary view in the present case. 77 In pars 45 54 and 58 59 of these Reasons, I have made certain observations and findings. The matters to which I have referred in those paragraphs are relevant to the second and broader of Mr McCausland's grounds of challenge to these proceedings. I will not repeat them here. 78 The important factors for present purposes may be summarised as follows: (a) The issues raised by the non-money claims for relief made in these proceedings can be adequately ventilated and determined in the IRC. This Court need not be engaged in order to deal with those claims; (b) The money claim is tiny and would not ordinarily have been brought in this Court; (c) The claim is a relatively simple one and has been put in the way that it has solely in order to present it as legitimately being within this Court's jurisdiction; (d) The relevant events occurred between five and six years ago. There has been significant delay in bringing forward the claim. The delay has not been explained; and (e) The claim in this Court is inconsistent with the defences adopted by the applicants in the IRC. Those defences have been supported by affidavit evidence whereas there has been no verification of the claim made in this Court. 79 In my judgment, the proceedings in this Court have been instituted solely (or, at the very least, predominantly) for the purpose of enabling the removal of the IRC proceedings brought by Mr and Mrs McCausland into the Supreme Court by order of that Court: (i) Against the wishes of Mr and Mrs McCausland who had the right to choose the IRC as the forum in which to litigate their claims; (ii) In circumstances where there is no substantive claim on foot in the Supreme Court and where the Supreme Court has no jurisdiction to hear and determine claims made pursuant to ss 105 and 106 of the Industrial Relations Act 1996 (NSW); and (iii) In circumstances where there is no genuine intention on the part of the applicants to prosecute to finality the claims made in this Court should it be necessary to do so (whether in this Court or in the Supreme Court). 81 In Morningstar [2003] FCA 870 ; 131 FCR 236 , as in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 , there were real disputes in several courts on foot at the same time. The first of those proceedings was a suit in the Equity Division of the Supreme Court brought by the group which Hely J described as " the Rich interests ". The second proceeding was a proceeding commenced in the IRC by the Rich interests seeking relief pursuant to s 106 of the Industrial Relations Act 1996 (NSW). The next important proceeding was the filing by the Morningstar interests against the Rich interests of a significant cross-claim in the Supreme Court proceedings. The last proceedings to be commenced were the proceedings in the Federal Court commenced by the Morningstar interests. The Statement of Claim in the Federal Court proceedings in effect replicated the cross-claim filed by the Morningstar interests in the Supreme Court proceedings. 85 There was an acceptance by the Rich interests in Morningstar [2003] FCA 870 ; 131 FCR 236 that the claims made by the Morningstar interests in their cross-claim in the Supreme Court and in their Statement of Claim in the Federal Court were genuine claims and were not being agitated for an improper purpose such as the type of collateral benefit sought by Dr Spautz in the proceedings to which reference was made by the Full Court in Palm Springs [2002] FCAFC 239 ; 123 FCR 527 at [22] (p 532) and again at [27] (p 533). 86 In my judgment, the present case can be distinguished from Morningstar [2003] FCA 870 ; 131 FCR 236. My reasons for doing so are substantially the same as the reasons which I have given for distinguishing Palm Springs [2002] FCAFC 239 ; 123 FCR 527. To use the words of Hely J: The applicants " ... do not genuinely seek to obtain the relief ... " which they have sought in the proceedings in this Court. 87 Accordingly, I am of the view that neither Palm Springs [2002] FCAFC 239 ; 123 FCR 527 nor Morningstar [2003] FCA 870 ; 131 FCR 236 requires me to reject Mr McCausland's application. On the contrary, the reasoning in both of those cases requires that I should accede to it.


case_outcome: discussed

case_title: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

case_text: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J (with whom Spender J agreed) pointed to the distinction between failure to deal with an aspect of the evidence and failure to address a claim or an integer of the claim.


case_title: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323

case_text: Honours went on at [21] to say that the RRT failed to have regard to "relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 ... at [82]." This is clear, not only from what the High Court said in Yusuf , but also from other authorities which explain the boundaries between errant fact finding and jurisdictional error. Also, in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] , Allsop J observed that Yusuf does not stand for the proposition that a tribunal has failed to take into account a relevant consideration merely because it has not referred to a piece of evidence which the Court thinks relevant. His Honour supported this proposition by reference to Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-42. It is also amply supported by the observations of McHugh, Gummow and Hayne JJ in Yusuf at [73], [74], [82] and [84]. Moreover, it is plain from Yusuf at [68]-[69] that s 368 of the Migration Act (and its equivalent in s 430), requires the tribunal to set out only the findings it did make, not the findings it did not make.


case_outcome: referred to

case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24

case_text: Honour supported this proposition by reference to Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-42. It is also amply supported by the observations of McHugh, Gummow and Hayne JJ in Yusuf at [73], [74], [82] and [84].


case_title: MZXBX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94

case_text: Magistrate Lloyd-Jones referred at [21] of his judgment to the appellant's submission that the MRT did not have regard to all the medical reports and that it ignored relevant evidence. The learned Federal Magistrate observed that, despite this contention, there was no doubt that the MRT was familiar with all the reports. This was because the exchange of correspondence between the MRT and the doctors led to the preparation of the reports. His Honour observed that in those circumstances it was difficult to accept that the MRT did not have regard to all of the reports. He went on to say that the MRT was not required to record in its decision all the material that it had considered. Reference was made to the decision of a Full Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. The learned Federal Magistrate also observed at [25] that the appellant knew exactly what he was required to prove and was given the opportunity of obtaining the evidence. His Honour said that Dr Patapanian's clear diagnosis was that there was no substantial medical or clinical basis for any claim of discomfort on the appellant's part. He also said that it was open for the MRT to conclude that the appellant did not have a condition that would prevent him from travelling long distances. Mr Young, counsel for the appellant, conceded that the appellant's grounds of appeal may be reduced to two. The first ground is that the MRT failed to have regard in its reasons to important material going to an essential issue in the case. The second ground is that the MRT failed to take into account relevant considerations, namely the existence of other medical evidence, in particular the report of Dr Dinakar dated 30 May 2004. The substance of Mr Young's argument was that the MRT fell into error because it failed to have regard to the other medical evidence, in particular Dr Dinakar's report of 30 May 2004. He drew attention to those parts of the report which stated that the appellant would be unable to travel long distances.


case_title: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2002) 219 ALR 27

case_text: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, Gummow and Callinan JJ said at [24] that a failure by the Refugee Review Tribunal to respond to a substantial, clearly articulated argument relying upon established facts amounted to a denial of natural justice. However, this does not assist the appellant's argument in the present case because Dranichnikov must be understood as a failure by the tribunal to deal with a claim; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [63] .


case_title: Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396

case_text: the references I have already given, may be added the remarks of Allsop J (with whom Heerey J relevantly agreed), in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . His Honour there observed that whatever the outer boundaries of relevant and irrelevant considerations, they do not encompass a failure expressly to mention part of a competing body of evidence before the tribunal, provided that the elements or integers of the claim are addressed. Here, it is plain that the MRT addressed the appellant's claim that his medical condition prevented him from travelling overseas. The appellant's submission that the MRT was required to expressly grapple with the other medical evidence is outside the boundaries of judicial review. The appeal must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 23 AUGUST 2006 Counsel for the Appellant: Mr J R Young Solicitor for the Appellant: Simon Diab & Associates Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 11 August 2006 Date of Judgment: 23 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1113.html


case_title: Rezaei v Minister for Immigration & Multicultural Affairs [2001] FCA 1294

case_text: in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] , Allsop J observed that Yusuf does not stand for the proposition that a tribunal has failed to take into account a relevant consideration merely because it has not referred to a piece of evidence which the Court thinks relevant. To this may be added the endorsement of the relevant passage in Rezaei by the Full Court in MZWBW (to which Federal Magistrate Lloyd-Jones referred) at [26] and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] .


case_title: Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268

case_text: this may be added the endorsement of the relevant passage in Rezaei by the Full Court in MZWBW (to which Federal Magistrate Lloyd-Jones referred) at [26] and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] .


case_title: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

case_text: as was said by a Full Court (French, Sackville and Hely JJ) in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46], it is not necessary for a tribunal to refer to every piece of evidence and every contention of an applicant in its written reasons; there is a distinction between failure to refer to evidence and failure to address a contention which constitutes a claim or an integer of a claim. This passage of WAEE was referred to with approval by the Full Court in MZWBW at [27]. It was also referred to by Federal Magistrate Lloyd-Jones in his reference to the relevant paragraph of MZWBW. When the learned Federal Magistrate's reasons are considered in light of these well established statements of principle, they can be seen to be entirely without error. Indeed, his Honour's finding at [21] that the MRT must have had regard to other medical evidence, including that of Dr Dinakar, though not essential to the correctness of the decision, seems to me to be entirely correct. Given the process which led to the production and submission of Dr Patapanian's report, it is difficult to accept the appellant's submission that the MRT failed to have regard to the earlier reports. What is more, the MRT's failure to refer to Dr Dinakar's report is quite understandable. This is because the last sentence of the report of 30 May 2004 specifically deferred to the more expert opinion of a specialist. Dr Patapanian was the very specialist to whom Dr Dinakar referred the appellant for an opinion on the question of whether he was able to travel. Notwithstanding this, Dr Patapanian made no mention of that issue. Dr Patapanian's failure to refer to that issue is not supportive of the appellant's claim. As the learned Federal Magistrate said at [25], given the doctor's diagnosis, it was open for the MRT to make a finding that he did not have the condition he asserted.


case_title: Colbeam Palmer Limited and Another v Stock Affiliates Pty Limited [1968] HCA 50 ; (1968) 122 CLR 25

case_text: In Dart Industries Inc v Décor Corporation Pty Ltd (1993)179 CLR 101 at 121 Mason CJ, Deane, Dawson and Toohey JJ cited with approval what was said by Windeyer J in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 42-43: The true rule, I consider, is that a person who wrongly uses another man's industrial property patent, copyright, trade mark is accountable for any profits which he makes which are attributable to his use of the property which was not his... If one man makes profits by the use or sale of some thing, and that whole thing came into existence by reason of his wrongful use of another man's property in a patent, design or copyright, the difficulty disappears and the case is then, generally speaking, simple. In such a case the infringer must account for all the profits which he thus made. Windeyer J had earlier (at 37) drawn a distinction between patent and trade mark infringement (the instant case being the latter). If a patent infringer sells an article made wholly in accordance with the invention and thereby obtains more than it cost him to acquire or make it, he is accountable for the difference as profit because he has "infringed the patentee's monopoly right to make, use, exercise and vend the invention" (that being the statutory test of infringement then applicable). However, the profit for which a trade mark infringer is accountable is not the profit from selling the article itself but the profit from selling it under the trade mark.


case_title: Dart Industries Inc v Décor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101

case_text: In Dart Industries Inc v Décor Corporation Pty Ltd (1993)179 CLR 101 at 121 Mason CJ, Deane, Dawson and Toohey JJ cited with approval what was said by Windeyer J in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 42-43: The true rule, I consider, is that a person who wrongly uses another man's industrial property patent, copyright, trade mark is accountable for any profits which he makes which are attributable to his use of the property which was not his... If one man makes profits by the use or sale of some thing, and that whole thing came into existence by reason of his wrongful use of another man's property in a patent, design or copyright, the difficulty disappears and the case is then, generally speaking, simple. In such a case the infringer must account for all the profits which he thus made. Windeyer J had earlier (at 37) drawn a distinction between patent and trade mark infringement (the instant case being the latter). If a patent infringer sells an article made wholly in accordance with the invention and thereby obtains more than it cost him to acquire or make it, he is accountable for the difference as profit because he has "infringed the patentee's monopoly right to make, use, exercise and vend the invention" (that being the statutory test of infringement then applicable). However, the profit for which a trade mark infringer is accountable is not the profit from selling the article itself but the profit from selling it under the trade mark. 13 Dart itself was a case of patent infringement, the patent being for press button seals used to seal plastic kitchen canisters. The trial judge had allowed for the whole profit on the basis that sales of the canisters were attributable to the invention. The Full Court of the Federal Court reached the same result, reasoning that "what characterised the infringing product was the press button lid, without which this particular canister would neve have been produced at all". The High Court majority (at 121) noted that there was "some divergence" between the trial judge and the Full Court but considered nevertheless the "overall approach" of both was correct. 16 While doubtless Mr Wallz made use of his own knowledge and experience in relation to tender responses when he conducted the Reed workshop, he would not have been able to take up the opportunity to do so had it not been for his use of the Original Manual. That use was fundamental to the presentation of the workshop. The case is similar in that regard to Dart and Peter Pan . The gross revenue received by him should be the starting point for the calculation of profit. 17 In Dart at 112 the majority cited a lengthy passage from the judgment of Harvey CJ in Eq in Leplastrier & Co Ltd v Armstrong-Holland Ltd (1926) 26 SR (NSW) 585 at 593 which commences: Under no circumstances can (the patent infringer), in my opinion, deduct interest on his capital employed in the business. Under no circumstances can he claim any remuneration to himself, nor under any circumstances can he claim in my opinion any director's fees for carrying on the business. His Honour goes on to say that the only expenses to be deducted are those "solely referrable to the manufacture of the [infringing] machines". The majority in Dart at 115 et seq discuss this latter part of the statement by Harvey CJ in Eq and point out, referring to a number of United States authorities, that the statement does not take account of opportunity cost suffered by an infringer in certain circumstances, as for example, where there is no excess capacity and the infringer would have been able to manufacture alternative products. In the circumstances which arose in Dart the majority at 119-120 held that some proportion of overheads attributable to the manufacture of the infringing products should be taken into account. 18 However, nothing that the majority said in Dart casts doubt on the opening part of Harvey CJ in Eq's statement quoted above. It would be wrong in principle to allow Mr Wallz a deduction for the time he had spent working up his presentation with the aid of Tenderwatch's Original Manual. This would be tantamount to making a copyright owner pay an infringer for the time and effort spent in infringement. As was said in Sheldon v Metro-Goldwyn Pictures Corp 106 F 2d 45 (1939) at 51, "a plagiarist may not charge for his labour in exploiting what he has taken". 19 For the purpose of an account of profits an infringer can only claim costs in fact incurred (including costs attributable to the infringing work: Dart ). The infringer cannot claim costs not actually incurred, even though they might reasonably have been incurred. Thus in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24 the infringer company had paid salaries to its directors but submitted a report of a consultant purporting to set out a "fair remuneration", which was in the order of three times that actually paid. Lindgren J at [178] rejected this claim, pointing out that the plaintiff must take the business of the infringer as it is.


case_text: Peter Pan Manufacturing Corporation v Corsets Silhouette Ltd [1964] 1 WLR 96 concerned confidential information as to a particular style of brassiere. Pennycuick J at 108-109 rejected an argument that profits should be limited to the amount by which the profit exceeded the profit the defendant would have made if it had manufactured the article without the use of that information. In his Lordship's view the manufacture of the article in question of itself involved the use of the confidential information and the defendants could not have manufactured that article at all without the use of the confidential information. That case seems closely analogous to the present one. 15 In the present case the presentation of Mr Wallz at the Reed workshop involved blatant and wholesale copying of the Original Manual, particularly of its structure and layout. As already mentioned, participants were each given a copy of the Reed Manual which was substantially the same as the Original Manual. Mr Wallz used slides which contained headings and information the same as that contained in the Original Manual and substantially the same as slides produced and used by Tendersearch. Mr Wallz frequently referred to the content of the Reed Manual as a supplement to the projected slides. Twice during the course of the day Mr Wallz handed out documents containing exercises. Attendees broke into groups and worked on these exercises. These had similarities in content and layout to like documents created and used by Tendersearch although the similarities are not as striking as those between the Reed Manual and the Original Manual. 16 While doubtless Mr Wallz made use of his own knowledge and experience in relation to tender responses when he conducted the Reed workshop, he would not have been able to take up the opportunity to do so had it not been for his use of the Original Manual. That use was fundamental to the presentation of the workshop. The case is similar in that regard to Dart and Peter Pan . The gross revenue received by him should be the starting point for the calculation of profit.


case_text: However, nothing that the majority said in Dart casts doubt on the opening part of Harvey CJ in Eq's statement quoted above. It would be wrong in principle to allow Mr Wallz a deduction for the time he had spent working up his presentation with the aid of Tenderwatch's Original Manual. This would be tantamount to making a copyright owner pay an infringer for the time and effort spent in infringement. As was said in Sheldon v Metro-Goldwyn Pictures Corp 106 F 2d 45 (1939) at 51, "a plagiarist may not charge for his labour in exploiting what he has taken".


case_text: For the purpose of an account of profits an infringer can only claim costs in fact incurred (including costs attributable to the infringing work: Dart ). The infringer cannot claim costs not actually incurred, even though they might reasonably have been incurred. Thus in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24 the infringer company had paid salaries to its directors but submitted a report of a consultant purporting to set out a "fair remuneration", which was in the order of three times that actually paid. Lindgren J at [178] rejected this claim, pointing out that the plaintiff must take the business of the infringer as it is. 20 The present case is not precisely on all fours with LED Builders because the infringer Mr Wallz was a sole trader and did not employ anybody. However, as a matter of ordinary business practice the "profit" he made for conducting the Reed workshop was the amount he received from Reed less his actual outlays. If his time spent was truly worth what he says, presumably he would have charged Reed $17,500. By way of example, if a barrister charged $1,000 for an opinion, he or she would not calculate the number of hours spent and determine that there was a "profit" of, say, $300. 21 The cost of printing and GST are properly allowable because they have reduced the actual profit or benefit derived by Mr Wallz from the infringement. 22 Accordingly the profit for which Mr Wallz must account is $2,311.69 being his gross receipt from Reed of $2,711.71 less printing costs of $153.50 and GST of $246.52.


case_text: appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZLWP v Minister for Immigration and Anor [2009] FMCA 792. In that judgment, given on 27 August 2009, the learned federal magistrate dismissed an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal. The decision of the Tribunal was signed on 18 November 2008 and handed down on 19 November 2008. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship, the first respondent for this appeal, refusing to grant to the appellant a protection visa. The Tribunal is the second respondent to this appeal. The appellant is a citizen of Bangladesh. He arrived in Australia on 1 April 2007. His application for a protection visa was made on 1 May 2007. The Minister's delegate made a decision on 30 July 2007 refusing to grant that visa. The appellant sought review of the decision of the Minister's delegate. The matter went to the Tribunal and subsequently to the Federal Magistrates Court, which set aside the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law. The application for review of the Minister's delegate's decision was then assigned to another member of the Tribunal, who heard and determined it. The Tribunal conducted a further hearing on 16 September 2008, at which the appellant was present and at which he gave evidence and presented arguments, with the assistance of an interpreter fluent in the Bengali language. The appellant was also represented by a registered migration agent who attended the Tribunal hearing.


case_text: his amended application to the Federal Magistrates Court, the appellant relied on three grounds. The first was that the Tribunal made its decision in bad faith. The basis of this ground was the Tribunal's finding that the appellant took part in the demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status. The second ground was that the Tribunal acted in excess of its jurisdiction, by finding that it was not satisfied that there was a real chance of the appellant being persecuted for any Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution in Bangladesh. The third ground was that the Tribunal made a wrong assumption about his credibility by not following a principle that the appellant said was established by W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (2001) 185 ALR 703. The federal magistrate dealt with each of these grounds. At [46]-[49] of his Honour's reasons for judgment, the federal magistrate pointed out that an allegation of bad faith is not to be lightly made and must be alleged and proved clearly. His Honour characterised the appellant's complaint as a disagreement with the Tribunal's finding on an issue of fact. His Honour said it was open to the Tribunal to make that finding on the evidence before it, and that there was nothing to show that it acted in bad faith when it did so. As to the second ground, at [50] his Honour said that that involved no more than an attempt at merits review of the appellant's claim. At [52], his Honour said that the appellant had not shown any failure to make a finding on a clearly articulated argument relying on established fact, and the Tribunal decision record did not show any such failure. The third ground was dealt with in [54]-[57]. His Honour referred to the authority cited by the appellant in his amended application. He stated that the passage on which the appellant relied was in the judgment of Lee J in that case, but that, as the appellant conceded, Lee J was in the minority. His Honour pointed out that the majority, Tamberlin and Nicholson JJ, held at [64] that the Court must not set aside a finding of credit simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. The federal magistrate characterised the appellant's ground 3 as an attempt to argue the factual basis of the Tribunal's credibility finding. As the appellant was not legally represented in the Federal Magistrates Court, the federal magistrate then proceeded to examine for himself the procedural requirements of the Migration Act , in relation to the Tribunal, and the manner in which it is required to deal with an application for review of a decision of the Minister. His Honour found no jurisdictional error in relation to any of those requirements. The appellant's notice of appeal to this Court is in terms that are identical to the terms of his amended application to the Federal Magistrates Court. The same three grounds are relied upon, and the appellant has endeavoured to argue them, both in written submissions and orally. In attempting to justify ground 1, bad faith, the appellant submitted that, in fact, he was involved with Awami League politics and was an office-bearer of that party in Bangladesh. That involvement inspired him to join with the Australian Awami League and to attend its programs because he believed in its politics. He disputed the claim by the Tribunal that he attended the programs in order to strengthen his claim for refugee status. He submitted that the Tribunal disapproved of his political beliefs in the finding that it made, and also disapproved of the Awami League and its leaders. What the Tribunal said about the appellant's activities in Australia must be viewed in light of the requirements of s 91R(3) of the Migration Act . That subsection provides: For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. What the Tribunal said about this matter appears in [148] of its reasons for decision: The Tribunal has formed the view that the applicant was photographed taking part in the peaceful demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status. As the Tribunal is not satisfied that the applicant's conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by section 91R(3) of the Act. It is clear from s 91R(3) of the Migration Act that the onus lay on the appellant to satisfy the Tribunal that his conduct in joining the demonstration in Canberra was for a purpose other than to strengthen his claim for refugee status. The appellant may not have appreciated that he carried this onus. Perhaps there might have been more that he could have done to convince the Tribunal. The fact is that the Tribunal was not satisfied that there was a valid motive for the appellant's conduct. Accordingly, it was obliged by s 91R(3) to reach the conclusion it did and to disregard the conduct. The Tribunal's finding certainly did not amount to bad faith, nor did it amount to jurisdictional error of any kind. The federal magistrate was correct to reject ground 1 of the appellant's amended application to that court. Similarly, the federal magistrate was correct to reject ground 2. The findings that the Tribunal was not satisfied that there was a real chance of the appellant being persecuted for a Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution if he returned to Bangladesh, were findings on the very matters that the Tribunal was required to determine. Those matters were issues at the heart of the jurisdiction of the Tribunal. It is difficult to see how the Tribunal could have exceeded its jurisdiction by dealing with those issues. It was required to reach a conclusion on them and it did so. From the appellant's point of view, the difficulty is that the Tribunal reached a conclusion on those issues adverse to him. It is not surprising that he does not like that conclusion, but to seek to overturn it by characterising it as involving an excess of jurisdiction by the Tribunal is really to attempt a review of the appellant's case on the merits. That is something that this Court cannot entertain. Nor could the Federal Magistrates Court entertain it. The third ground, the credibility issue, is similarly an attempt to engage in review on the merits. As the passage I have quoted from [124] of the Tribunal's reasons for decision shows, the Tribunal did have grounds for arriving at its finding in relation to the appellant's credibility. It did not reach that conclusion irrationally. It relied on inconsistency within the appellant's own evidence at different stages, and on his failure to explain the inconsistencies. If it were necessary to find that the Tribunal did rely on the cumulative weight of the matters referred to, then it is plain that it did. The fact is, however, that credibility was a matter solely for the Tribunal. It is not open to the appellant to come to this Court, and it was not open to him to go to the Federal Magistrates Court, to complain about the Tribunal's finding on credibility. The facts were for the Tribunal. The Tribunal determined them. It determined them adversely to the appellant, but he is bound by its determination of those facts.


case_text: a litigant in person, the applicant is not entitled to his costs to the extent that they are referable to his own time, including the amount of any income lost as a result of attending to the prosecution of this proceeding: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403. He is, however, entitled to his disbursements: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288. I shall order that he have his disbursements, by which I intend the taxing officer to be guided by Boswell as qualified by Cachia . I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 22 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: G.Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1107.html


case_title: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288


case_text: I raised with the parties my concern that the restraint was in terms of ' a substantial part ' of the Nine Weekly Program Schedule. I agree with what was said by Lockhart J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 at 249 that injunctions ' should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction '. There is or is likely to be a difference of opinion as to what constitutes a substantial part, by reference to particular times and titles. The parties referred me to orders that have been made in other cases concerning infringement of copyright and in particular Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 where Tamberlin J made orders restraining the respondents in terms of ' the whole or a substantial part of any of the sound recordings '. Nine also submits that it is appropriate to make orders utilising statutory expressions ( Sterling Winthrop Pty Ltd v R & C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308). 11 Both Nine and Ice assure me that they consent to an order by reference to "a substantial part" of the Nine Weekly Program Schedules. Ice's consent is given with the understanding that ' contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed ' ( ICI at 259 per Lockhart J). Nine emphasises that the understanding of the orders is in the context of the proceedings as a whole and framed by those proceedings ( Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91 ,736 at [9] per Heerey J). Nine and Ice submit that it is for the parties to ascertain the meaning of "substantial part" by reference to the Full Court decision. In those circumstances, I will make the order by reference to "substantial part".


case_outcome: considered

case_text: The Full Court allowed an appeal by the applicant ('Nine') in relation to a claim of infringement of copyright in Nine's television program schedules by the respondents ('Ice'), ( Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71). The Full Court remitted the proceedings to me as the primary judge ' for hearing and determination consistently with these reasons for judgment ' (at [129]) . Briefly, the matter related to copyright in Nine's television program schedules and the use by Ice of Nine's information in its subscription based electronic program guide for television (the 'IceGuide'). 2 The parties have presented different versions of the appropriate orders to be made, each said to reflect the Full Court's reasons. Some of the differences between the orders have been resolved but others have not. I will make the orders that are agreed and consider in these reasons only those orders that are not agreed. As Nine was the successful party in the appeal, it is appropriate that I have regard, initially, to the orders that Nine proposes and the reasons advanced for the form of those orders and then consider Ice's objections and the form of orders proposed by Ice. 3 A form of orders as proposed by Nine that takes account of those orders that are agreed and highlights those disputed by Ice is as follows: In these orders the following terms have the following meanings: Additional Program Detail Information means any one or more of the following details: (a) episode titles; (b) episode numbers; (c) information about the currency of programs; (d) information about the formats in which programs are to be broadcast; (e) closed captioning information for the hearing impaired; (f) program classification information; and (g) consumer advice. Aggregated Guide means the published television program guide containing information for all free to air channels, including the applicant's channels, that is produced by any of the Aggregators where the guide has been created, in part, by using one or more Nine Weekly Program Schedules provided by the applicant to the Aggregator. Aggregators means HWW Limited, eBroadcast Australia and Pagemasters Pty Limited or any publisher of any other aggregated television guide (printed, electronic or otherwise) whose publication includes the Nine Weekly Program Schedule under licence from the applicant. IceGuide means the first respondent's television program schedules, whether known by that name or otherwise, and includes all versions of the IceGuide including IceGuide Widget and IceGuide PIMP. IceTV Database means the first respondent's database used in the preparation of its IceGuide. Nine Weekly Program Schedules means the applicant's weekly television program schedules which comprise: (a) Nine Program Time and Title Information; (b) Additional Program Detail Information; and (c) Nine Synopses. Nine Program Title and Time Information means the respective associated dates, titles and intended starting and finishing times for the transmission of the applicant's respective television programs. Nine Synopses means descriptive information about individual television programs included in a Nine Weekly Program Schedule. THE COURT DECLARES THAT: 1 The applicant is the owner of the copyright in the Nine Weekly Program Schedules. 2 The first respondent has infringed the copyright in certain of the Nine Program Schedules, by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; substantial parts of those Nine Weekly Program Schedules, without the licence of the applicant. THE COURT ORDERS THAT: As against the first respondent 3 The first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from infringing copyright in any of the Nine Weekly Program Schedules by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; or (d) authorising the communication to the public of, the whole or a substantial part of any Nine Weekly Program Schedules (whether made before or after the date of the making of this order), without the licence of the applicant.


case_text: The order restrains Ice from using the copyright work (the Nine Weekly Program Schedule) or a substantial part of the copyright work, being the Nine Program Time and Title Information. Clearly, Nine is entitled to restrain Ice from using its program and time and title information in the way described in the evidence, as set out in Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99. To frame the order as proposed by Ice, in terms of the use of the Nine Program Time and Title Information ' to the extent that such information reproduces...a substantial part of the Nine Weekly Program Schedule ', raises further uncertainty, despite the fact that each party professes to understand what it means. 14 The appropriate order, it seems to me, should not be limited to what is presently called the IceGuide. Ice makes no secret of the fact that it seeks to continue its business in a way that it believes does not infringe Nine's copyright. In so doing it may continue to produce a guide that does not equate to the IceGuide. I am not satisfied that the definition of "IceGuide" in the proposed orders overcomes that problem. 15 The order I propose is as follows: Without limiting order 3 above the first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from using (including for the purpose of producing the Ice Guide) the whole or a substantial part of the Nine Weekly Program Schedule in a manner that: (a) reproduces in a material form; (b) authorises reproduction in material form of; (c) communicates to the public; (d) authorises a communication to the public of, the Nine Program Time and Title Information (whether made before or after the date of the making of this order) without the licence of the applicant.


case_text: I raised with the parties my concern that the restraint was in terms of ' a substantial part ' of the Nine Weekly Program Schedule. I agree with what was said by Lockhart J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 at 249 that injunctions ' should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction '. There is or is likely to be a difference of opinion as to what constitutes a substantial part, by reference to particular times and titles. The parties referred me to orders that have been made in other cases concerning infringement of copyright and in particular Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 where Tamberlin J made orders restraining the respondents in terms of ' the whole or a substantial part of any of the sound recordings '. Nine also submits that it is appropriate to make orders utilising statutory expressions ( Sterling Winthrop Pty Ltd v R & C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308).


case_title: Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878


case_text: Both Nine and Ice assure me that they consent to an order by reference to "a substantial part" of the Nine Weekly Program Schedules. Ice's consent is given with the understanding that ' contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed ' ( ICI at 259 per Lockhart J). Nine emphasises that the understanding of the orders is in the context of the proceedings as a whole and framed by those proceedings ( Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91 ,736 at [9] per Heerey J). Nine and Ice submit that it is for the parties to ascertain the meaning of "substantial part" by reference to the Full Court decision. In those circumstances, I will make the order by reference to "substantial part".


case_outcome: related

case_text: parties have isolated some issues which need to be determined in order that the matter can be brought to a conclusion following the delivery of reasons ( Australian Naturalcare Products Pty Ltd v McGrath; in the matter of Pan Pharmaceuticals Limited (in liq) [2006] FCA 1403). The first thing to note is that there was an error in the reasons in relation to MSD costs etc which should have been deducted from revenue, not gross profit. The parties are agreed about that and the ultimate orders should reflect that correction. The second matter for consideration is whether or not, in saying what I did at paragraph 104 of the judgment, I intended to include savings of wages costs together with the MSD costs in assessing an amount of 15 per cent, rather than 20 per cent as proposed by Mr McGuiness. I believe that is what I said and it is what I intended. I accepted the methodology of Mr McGuiness in general, but, as I explained, when I looked at his assessment of the various integers, including wages costs savings, the overall view I came to was that 15 per cent in total rather than 20 per cent in total was the correct figure. The next issue for determination arises out of the necessity to allow for interest on an emerging or pro rata basis. In the course of doing that on monthly rests, it appeared that in three months more revenue was earned than what was called the 'benchmark' which represented spreading the actual loss over the period. The way the applicant's spreadsheet is composed means that the ultimate principal amount varies from the amount allowed in the judgment because of the effect of those months. There is no scope at this stage for any variation of the assessment I made of $4 million for that particular component, whatever the result may be in terms of interest, and the final figures should not reflect any variation of the principal sums that I have assessed and found in the judgment. It seems to me that, subject to checking the arithmetic, the respondent's latest spreadsheet probably reflects the principles that I have enunciated.


case_text: The appellant, a citizen of Bangladesh, sought judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal refusing to grant him a protection visa. Barnes FM refused the application: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1739. The appellant now appeals to this Court. 2 The appellant claimed that he came from a "high profiled political oriented family" who had "political and business opponents to eradicate them". He claimed that while undertaking a Bachelor of Commerce degree at a university in Bangladesh in 1998 he became involved in the Awami League and participated in "different party programs including anti-government and anti-fundamentalism movement to uphold the party objectives". He became the assistant organising secretary of the branch of the Awami League for 2001-2002 and an "influential leader of (his) area". 3 In October 2001 the new BNP government in Bangladesh, in alliance with the Jamat-e-Islami of Bangladesh, "started oppression against activists and leaders of the Awami League". This became so critical that the appellant went into hiding in July 2002 because the government filed a "false case" against him and the police started searching for him.


case_text: The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 36 If s 424A(1) applies, the obligation is not met by putting the information orally to the applicant in the course of the Tribunal hearing, it must be put in writing: SAAP . And this is so whether or not failure to provide the information would result in any unfairness, as long as the information formed the reason, or part of the reason, for affirming the decision: SZEEU at [215]. 42 Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP , where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.


case_text: The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 35 The "application" in s 424A(3)(b) means the application before the Tribunal. So information which an applicant might have given in the initial protection visa application is not excluded by subs (3) from the requirements of subs (1): Al Shamry .


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_text: Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP , where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.


case_text: submitted that the mortgage was registered simultaneously with the transfer, with the result that the purchaser/mortgagor never obtained unencumbered title enabling the creation of a tenancy (referring to Abbey National Building Society v Cann [1991] 1 AC 56 at 93; Allsop v Marshall (1942) 59 WN (NSW) 159 at 161-162; Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 at 447; Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1 at 5-8). Perpetual relied principally on Abbey to argue that the interest of the retirees as tenants in possession was only created upon registration of the transfer. Because a mortgage was registered at the same time, Perpetual argued, the interest of a tenant in possession is only in the registered proprietor's equity of redemption and any such interest of the retirees is subject to the mortgage. Perpetual submitted that, in Abbey , it was the purchaser's reliance on mortgage funds which demonstrated that the transactions were simultaneous and that, in the present case, the conclusion that the mortgage and purchase were simultaneous arises not from proof that the particular mortgage funds were required for the particular purchase, but from the following facts: (a) the Money for Living entities were in the business of buying and selling properties; (b) during the period between purchase and on-sale, the relevant Money for Living entity was responsible for paying the annuity to the retiree; (c) Money for Living's only source of funding to make the up-front payments and pay the annuities necessary to its ongoing business was sale proceeds generated by MFL and proceeds of mortgage loans granted by MFLPH, paid directly to MFL by way of loan; (d) in most cases, the payment was made by MFL to the relevant retiree on the same day that the payment was made by Perpetual to MFL; (e) funds on settlement were usually paid to the retiree, any existing mortgagee of the retiree's interest, and the retiree's solicitors; and (f) while payments by Perpetual were made to MFL and not MFLPH (the borrower), that occurred because MFLPH had no bank account at the relevant time, and money received by MFLPH was paid straight to MFL and recorded as a loan from MFLPH to MFL. MFL paid MFLPH's expenses (including its liability to make up-front and ongoing payments to retirees). It was submitted that each Perpetual payment, secured by a mortgage, was indissolubly linked to the relevant property purchase by reason of the part that each of those matters played in the business model of Money for Living. Accordingly, it was contended, the Perpetual payments were an indispensable part of the business under which the property purchase was made. As in Abbey , it was contended by Perpetual, the relevant registrations were not only simultaneous, but the transactions which gave rise to those registrations were indissolubly bound together. Perpetual submitted that the cases upon which the retirees rely in an attempt to distinguish Abbey have no application in this case (referring to Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856 ; Barclay's Bank plc v Zaroovabli [1997] Ch 321; HKCB Finance Limited v Yuen Yi Wan [2004] HKEC 1564). The ratio in Abbey [1991] 1 AC 56 was set out clearly by Lord Oliver at 92-93: ... Of course, as a matter of legal theory, a person cannot charge a legal estate that he does not have, so that there is an attractive legal logic in the ratio in Piskor's case. Nevertheless, I cannot help feeling that it flies in the face of reality. The reality is that, in the vast majority of cases, the acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent on the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. Indeed, in many, if not most, cases, of building society mortgages, there will have been, as there was in this case, a formal offer and acceptance of an advance which will ripen into a specifically enforceable agreement immediately the funds are advanced which will normally be a day or more before completion. In many, if not most, cases the charge itself will have been executed before the execution, let alone the exchange, of the conveyance or transfer of the property. This is given particular point in the case of registered land where the vesting of the estate is made to depend upon registration, for it may well be that the transfer and the charge will be lodged for registration on different days so that the charge, when registered, may actually take effect from a date prior in time to the date from which the registration of the transfer takes effect: see section 27(3) of the Act of 1925 and the Land Registration Rules 1925...Indeed, under rule 81 of the rules of 1925, the registrar is entitled to register the charge even before registration of the transfer to the chargor if he is satisfied that both are entitled to be registered. The reality is that the purchaser of land who relies on a building society or bank loan for the completion of his purchase never in fact acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise. The "scintilla temporis" is no more than a legal artifice and, for my part, I would adopt the reasoning of the Court of Appeal in In Re Connolly Brothers Ltd (No 2) [1912] 2 Ch 25 and of Harman J in Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901 and hold that Piskor's case was wrongly decided. It follows, in my judgment, that Mrs Cann can derive no assistance from this line of argument. In my view, Abbey is distinguishable from the facts at hand even if its principles have any application to the TLA or LTA. As Perpetual points out, it was the purchaser's reliance on mortgage funds in Abbey which demonstrated that the transactions were simultaneous. In many instances concerning the purchase of land, the purchase is entirely dependant on the provision of funds by a lender. In those circumstances, the result in Abbey , with respect, makes sense. I do not consider that MFLPH was in that situation. It appears from the facts that, at least in some cases, MFLPH was able to pay out whatever sum was required at settlement without resort to Perpetual. For example, in the case of Smith and Easterbrook and Gray, the mortgage was created and the associated loan of funds occurred many days after the transfer of funds by MFLPH to the retiree. I see nothing unusual about this for the operation of the scheme. Indeed, it would be unusual if there were not sufficient funds in such an operation to fund the purchases of the properties without resort to lenders in each instance. In the case of Gainsford, the loan amount of Perpetual was in fact not paid to MFLPH but to MFL, and whatever arrangements there were between MFLPH and MFL, the loan amount was still not payable to MFLPH for the purposes of concluding the purchase. In my view, everything will depend upon the facts of each case, and Abbey is not setting down any inflexible rule or principle (see eg Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856 ; HKCB Finance Limited v Yuen Yi Wan [2004] HKEC 1564 at [61]). The nature of the transactions, their sequence, and the Money for Living scheme indicate that the transactions the subject of the registration of the transfer and mortgage were not indissolubly bound together, and the mortgage should be regarded as a separate and distinct transaction from the transfer and grant of lease, which transactions did occur simultaneously, and prior to the creation of the mortgages in the case of each retiree.


case_title: Allen v Anthony (1816) 35 ER 679

case_text: any event, I have come to the view that even if there is to be a comparison of the two competing interests as suggested by Perpetual, the interests of the retirees have priority. Even accepting that Perpetual took the mortgage at arm's length, in the normal course of its business and for valuable consideration, I have formed this view for the following reasons: (i) the earlier equitable interest in the property of the retirees I have generally regarded as a stronger claim than the later interest of Perpetual; (ii) fairness and justice does not require or indicate the earlier equitable interest of the retirees should be postponed (see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 341 (per Mason and Deane JJ)); (iii) any lack of notice by Perpetual is only one aspect of the circumstances I have taken into account, which does not displace the earlier interest of the retirees; (iv) Perpetual knew by itself, or its agents, that the properties were occupied, or at the very least expected the properties would be tenanted, even if Perpetual did not know the exact terms of the Contract of Sale or Agreement for Sale of Real Estate or of the lease. If I am wrong in this regard as to knowledge or expectation, this would still not alter my view as to the competing position; (v) the retirees were in fact in possession of the property which I regard as significant, although not 'decisive' (cf Burke v Dawes [1938] HCA 6 ; 59 CLR 1 per Evatt J at 26); (vi) Perpetual had constructive notice of the retirees' rights and it took its interest subject to them, and this occurs even if the tenant is in possession pursuant to additional entitlements: Hunt v Luck (1902) 1 Ch 428; Lowe v Clyne [1968] 2 NSWR 292 ; Daniels v Davison (1809) 16 Ves 249; and Allen v Anthony (1816) 35 ER 679, and particularly McMahon v Swan [1924] VLR 397 at 405-406 and Burke v Dawes 59 CLR 1 at 26-27 per Evatt J; (vii) Perpetual in failing to investigate the interest of the retirees did so at its 'peril' (see Evatt J at 27 in Burke v Dawes [1938] HCA 6 ; 59 CLR 1 ; and Lowe v Clyne [1968] 2 NSWR 292) ; (viii) whilst the retirees did not lodge timely caveats, the failure of the retirees to lodge a caveat is explicable. They were in fact still registered proprietors. In any event, 'the exception in s 42(2)(e) makes the failure to lodge a caveat of no moment, because it takes away from the registered proprietor that paramountcy which actual registration confers; and the only purpose of a caveat is to prevent such registration' (see Burke v Dawes [1938] HCA 6 ; 59 CLR 1 at 25-26 per Evatt J); (ix) further, I do not regard the failure to lodge a timely caveat as sufficient to postpone the retirees' interests, particularly as there was no evidence that Perpetual relied on the registration or absence of caveat (see IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 at [205] per Nettle J); and (x) no retiree consented to or ratified the mortgage to Perpetual.