case_text: contrast to the present set of circumstances is the decision in Tralongo v Malios [2007] VSC 239 , 27 VAR 74 where a misstatement in the decision of a medical panel as to the history provided by a claimant led to a conclusion that a decision of the panel should be set aside. In the present proceeding it is considered that the account provided by Ms Hughes was clearly at the forefront of the mind of the medical practitioners and the Tribunal itself. The first Ground of Appeal is thus rejected. The second Ground of Appeal focuses attention upon the following finding as made by the Tribunal: [41] Her symptoms did not subside as may have been expected, and in fact spread to other areas. ... This reference as to the symptoms having spread to " other areas " was a reference to the evidence Ms Hughes had earlier provided and which was summarised by the Tribunal earlier in its reasons for decision as follows: [11] She had a cortisone injection in late February 2006. By September 2006 she had been prescribed Endone, a narcotic for her occasional severe pain. She has developed a variety of symptoms. She told Dr Fearnside in October 2007 she has continued to experience back, left buttock and left hip pain; also that she had developed left sided sciatica with referred pain to the foot. She also described having alternate cold and burning feelings in the left hip and buttock region and had experienced some paraesthesia in her right buttock and thigh, but no sciatica. Also since January 2006 she had been constipated and also experienced loss of bladder sensation and some urinary incontinence. [12] She said that since 13 January 2006 she has had virtually the same level of back pain, the intensity of which varies according to her activities. Her left hip has deteriorated and that pain also fluctuates. Her hip is more troublesome than her back. Nonetheless since late August 2007 she has worked 7 hours 21 minutes each work day and does 1 1½ hours overtime most days. [13] She said she has had several experiences of her left hip locking and her left leg giving way. That might occur once a month, although it occurred three times one month. These paragraphs may be taken as an account of the symptoms claimed to be suffered by Ms Hughes.


case_outcome: cited

case_text: s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.


case_title: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471


case_title: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 , 107 FCR 133

case_text: was also no dispute that the requirement to provide " findings on material questions of fact " does not impose a requirement to make findings on all questions of fact; it is a requirement to set out those findings of fact which a tribunal does make and a requirement to refer to the evidence on which those findings were made. When construing a comparable provision to s 43(2B) as found in s 430 of the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323 considered the requirement to set out " the findings on any material question of fact " and concluded (citations omitted, emphasis in original): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh , significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution . For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. See also: Lang v Comcare [2007] FCA 47 at [53] , 94 ALD 141 at 152. Given a statutory requirement to set out " findings on material questions of fact ", the absence of any reference in the reasons for decision of the Tribunal to those findings of fact material to the decision to be reached may preclude a conclusion that the Tribunal impliedly took various considerations into account: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [27] , [2001] FCA 568 ; 107 FCR 133 at 140.


case_text: not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.


case_text: any event an error of fact does not amount to error of law: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . To grant relief for such an error would be to grant merits review, which is impermissible ( Wu Shan Liang at [272]). No jurisdictional error is made out.


case_text: Federal Magistrate rejected ground 2 of the amended application, on the basis that it was, in effect, a request for impermissible merits review. This finding and approach were correct: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. By notice of appeal filed on 5 January 2007 the appellant raises the following unparticularised grounds, that essentially assert that the Federal Magistrate erred, by not finding that the Tribunal erred as alleged in the grounds below: 1. It is not reasonable that the Refugee Review Tribunal did not accept that I am a Falun Gong practitioner while the Tribunal accepts that I have ever observed other persons practice Falun Gong in China. 2. The decision made by the Tribunal is illogical. 3. I believe that my fear of persecution is well-founded. At the hearing of the appeal before me the appellant, assisted by an interpreter essentially repeated the content of her grounds of appeal and overall sought to challenge the findings of fact by the Tribunal that she was not nor ever had been a practitioner of Falun Gong. In any event an error of fact does not amount to error of law: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . To grant relief for such an error would be to grant merits review, which is impermissible ( Wu Shan Liang at [272]). No jurisdictional error is made out. Ground 3 is, in substance, an impermissible application for merits review: Wu Shan Liang at [272]. In my opinion, the approach taken and the findings of the Tribunal and the Federal Magistrate were correct. No jurisdictional error has been made out. The appeal must be dismissed. The appellant should pay the costs of the first respondent, fixed at $2,800. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 30 April 2007 The Appellant appeared for herself: Counsel for the Respondent: B O'Donnell Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2007 Date of Judgment: 30 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/609.html


case_text: Tribunal concluded that although it was accepted that the appellant may have observed other people practising Falun Gong in both China and Australia, the appellant herself was not a Falun Gong practitioner. There is nothing, in my opinion, which is either not reasonable or illogical in this finding. Observing other practitioners of Falun Gong, of itself, says nothing about whether the appellant was or was not herself such a practitioner. The finding of fact of the Tribunal that she was not a practitioner of Falun Gong was the product of the Tribunal's evaluation of the credibility of the appellant's testimony based on internal consistency, inherent implausibility and consistency with independent country information that was clearly within the Tribunal's jurisdiction: Re Minister; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 (HCA) at [67]; W148/00A v Minister (2001) 185 ALR 703 (FCAFC) at [64]-[65]. The Tribunal, as the primary fact finder, has stated in its findings that it did not believe the appellant to be a Falun Gong practitioner. Although the Tribunal must give reasons for its decision, it is not required to give reasons for each particular finding in relation to the appellant's claims ( Re Minister; Ex parte Durairajasingham at [67]).


case_text: Tribunal concluded that although it was accepted that the appellant may have observed other people practising Falun Gong in both China and Australia, the appellant herself was not a Falun Gong practitioner. There is nothing, in my opinion, which is either not reasonable or illogical in this finding. Observing other practitioners of Falun Gong, of itself, says nothing about whether the appellant was or was not herself such a practitioner. The finding of fact of the Tribunal that she was not a practitioner of Falun Gong was the product of the Tribunal's evaluation of the credibility of the appellant's testimony based on internal consistency, inherent implausibility and consistency with independent country information that was clearly within the Tribunal's jurisdiction: Re Minister; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 (HCA) at [67]; W148/00A v Minister (2001) 185 ALR 703 (FCAFC) at [64]-[65].


case_text: relation to the amended grounds his Honour rejected ground 1 on the basis that, while the Tribunal did not mention the appellant's claim to have lost her employment at the end of her detention in the key paragraphs under the heading "Findings and Reasons", it had earlier identified the claim as part of the appellant's application to the delegate and noted that the statement containing it had accompanied the appellant's review application. The Tribunal, as he stated was clearly aware of that element of the applicant's claims" and dealt with it as part of a more general conclusion. This approach was in my opinion correct: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47] .


case_outcome: considered

case_text: It is apparent from the applicant's oral submissions that she seeks an impermissible merits review of the Tribunal decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . There is no jurisdictional error apparent in the Tribunal's decision or in the decision of Smith FM. The Court is satisfied that there is no merit in the applicant's substantial application.


case_outcome: applied

case_text: The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules. 22 As to delay, the applicant claimed at the hearing before the Court that her ignorance of Court procedure resulted in her failure to comply with O 52 r 5(2) of the Rules. Because the applicant is unrepresented and the delay is not extensive, the Court is prepared to accept this explanation. 23 There is no evidence before the Court that the Minister would be prejudiced if the Court were to grant an order dispensing with compliance with O 52 r 5(2) of the Rules.


case_text: In considering the merits of the substantial application, the Court observes that the first ground alleging bias by the Tribunal had not been raised before Smith FM. Accordingly leave would be required for the applicant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] - [24] . Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined' : see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].


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


case_title: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10


case_text: As no transcript of the Tribunal hearing has been put before the Court, the only evidence before the Court of the Tribunal's conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that ' [i] t is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves' : see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] . In the present proceeding the Tribunal decision reveals no bias against the applicant.


case_title: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749


case_title: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668


case_title: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168


case_outcome: affirmed

case_text: The appellant taxpayer appeals from a decision of the Administrative Appeals Tribunal (Mr BH Pascoe, Senior Member) which affirmed an objection decision of the respondent Deputy Commissioner in respect of the 1997 and 1998 tax years: Re Taxpayer and Federal Commissioner of Taxation [2006] AATA 750 ; (2006) 64 ATR 1075. The assessments resulted from an audit of the affairs of the appellant. The issues on the appeal concern the ascertainment of gross sales and the deduction of purchases in connection with a retail business carried on by the appellant. 2 Under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) an appeal lies to the Federal Court only on a question of law. 3 In October 1995 the appellant commenced a duty free retail business in Springvale, Victoria. In January 2002 the Australian Tax Office conducted an audit of the appellant's affairs. An assessment was issued for 1997 and an amended assessment for 1998. After extensive discussions with the appellant's then accountant, objections were allowed in part.


case_text: I am not persuaded that any of these questions are truly questions of law for the purpose of s 44(1) of the Act. While counsel for the Commissioner accepts that a question whether a finding was based on no evidence would be a question of law, the present case has to be considered in light of the onus of proof imposed on the taxpayer by s 14ZZK(b)(i) of the Taxation Administration Act 1953 (Cth). The appellant has to prove not only a case of error, but what the correct assessment was: Trautwein v Federal Commissioner of Taxation [1936] HCA 77 ; (1936) 56 CLR 63 at 88, Federal Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 at 623. Questions as to what were the true amount of the appellant's gross income and purchases in the 1997 year were questions of fact. For the reasons explained by the Tribunal, the appellant did not establish any different figures from those assessed by the Commissioner on the basis of the appellant's own financial records, such as they were.


case_title: Federal Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614


case_title: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 , 97 ALD 721

case_text: Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment & Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration & Citizenship [2008] FCA 224 at [4] .


case_outcome: followed

case_text: One consideration relevant to an application for an extension of time is whether an explanation has been provided as to why an appeal was not filed within time. Although it is to be expected that an acceptable explanation will normally be given, there is no rule that such an explanation is an essential precondition to the granting of an extension of time: Comcare v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441 at 444 per Black CJ, Gray and Burchett JJ. In the present proceeding the Applicant explained to this Court that he was provided with a copy of the decision of the Tribunal in late January 2008 and thereafter he was given the " run around " when he attempted to get the " paperwork " necessary to be completed for the purposes of an appeal. Of some concern is the apparent difficulty that the Applicant experienced when seeking to obtain advice in respect to the Tribunal's decision and his difficulty in obtaining access to a draft notice of appeal . 20 In such circumstances, the mere expiration of time as between being notified of the Tribunal decision and the filing of the Application in April 2008 would not of itself have precluded an extension being granted. On his account, the Applicant attempted to pursue his right of appeal but was not provided with the necessary advice or information so as to enable an appeal to be filed. No prejudice was claimed by the Respondent should an extension be granted.


case_title: Dunning v Secretary, Department of Family & Community Services [1999] FCA 1605 , 57 ALD 577

case_text: Section 12(1) thus provides that the " exceptional circumstances relief payment " sought by the Applicant was " not payable ". Given the terms of s 12(1) the Tribunal was " bound " to make the decision that it did: cf Dunning v Secretary, Department of Family & Community Services [1999] FCA 1605 at [10] , [1999] FCA 1605 ; 57 ALD 577 at 579, per Merkel, Goldberg and Weinberg JJ. See also: Re Cobon and Department of Family and Community Services [2001] AATA 549.


case_text: Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment & Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration & Citizenship [2008] FCA 224 at [4] . 21 In the context of the present Application , it is considered that the principal consideration relevant to an adverse exercise of the discretion to extend time is an assessment as to whether the Applicant has an arguable case. The " obvious strength or weakness " of an applicant's case is of relevance to the exercise of the discretion: Lucic v Nolan (1982) 45 ALR 411 at 417 per Fitzgerald J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. Although in many cases it may neither be appropriate nor practicable to attempt a full investigation of the merits of an appeal when considering whether an extension of time should be granted, the present proceeding is one in which the merits of the decision of the Administrative Appeals Tribunal can readily be assessed.


case_title: Jeilles v Secretary, Department of Employment & Workplace Relations [2007] FCA 1590


case_text: Order 35A, r 3(1)(a) provides as follows: Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant... The discretion conferred by r 3(1)(a) is unconfined and it has been said to be undesirable to attempt any exhaustive statement of the circumstances in which the power will be exercised: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [25] . It is, however, a power to be exercised " cautiously ": Lawson v NSW Minister for Land & Water Conservation [2007] FCA 8 at [22] .


case_title: Lawson v NSW Minister for Land & Water Conservation [2007] FCA 8


case_text: At least two factors militated against dismissing the proceeding on 2 June 2008. First, the failure of the unrepresented Applicant to appear was only the second occasion that the matter had been before the Court. No Notice of Motion had been filed seeking such an order, although the Respondent Secretary had apparently caused a letter to be forwarded to the Applicant foreshadowing that the dismissal of the proceeding may be sought. Second, given the Applicant's request to appear by telephone hookup, it would have been a manifestly harsh exercise of discretion to summarily terminate his proceeding at such an early stage in circumstances where it was apparent that he did wish to be heard -- even if only by way of telephone. There was certainly no " history of non-compliance ": Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388 at 396). 8 On 2 June 2008 the proceeding was stood over for hearing to today. Prior to that date the Registry of this Court notified the Applicant of the orders made on 2 June 2008, including giving notification that the hearing was to take place at 10.15am on 11 July 2008. The Applicant appeared in person today and gave an unsworn account as to the facts leading up to the filing of his Application in April 2008. The solicitor appearing for the Respondent Secretary was content for his factual account to be given in that informal manner. 9 Today a further application was made on behalf of the Secretary to again amend the name of the Respondent. The name as provided on 2 June 2008 was incorrect and the correct name is " Secretary, Department of Families, Community Services and Indigenous Affairs ". An order further amending the name of the Respondent should be made. The Applicant did not oppose that amendment being made provided -- as he put it -- the person responsible for the decision had his " head on the chopping block ".


case_text: That conclusion, it is considered, is manifestly correct and any appeal would have no prospects of success. An extension of time is not appropriate in such circumstances: Lockett v Military Rehabilitation & Compensation Commission [2006] FCA 946 ; Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 at [18] [20], 76 ALD 773 per Merkel J.


case_title: Lucic v Nolan (1982) 45 ALR 411

case_text: In the context of the present Application , it is considered that the principal consideration relevant to an adverse exercise of the discretion to extend time is an assessment as to whether the Applicant has an arguable case. The " obvious strength or weakness " of an applicant's case is of relevance to the exercise of the discretion: Lucic v Nolan (1982) 45 ALR 411 at 417 per Fitzgerald J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. Although in many cases it may neither be appropriate nor practicable to attempt a full investigation of the merits of an appeal when considering whether an extension of time should be granted, the present proceeding is one in which the merits of the decision of the Administrative Appeals Tribunal can readily be assessed.


case_title: Re Cobon and Department of Family and Community Services [2001] AATA 549


case_title: Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 , 76 ALD 773


case_title: SZGCA v Minister for Immigration & Citizenship [2008] FCA 224


case_text: In any event, and as submitted on behalf of the Respondent Secretary, the decision of the Administrative Appeals Tribunal was a decision affirming a decision refusing such a payment. The jurisdiction of the Tribunal which was being entertained was a jurisdiction to review a decision of the Social Security Appeals Tribunal: Social Security (Administration) Act 1999 (Cth), s 179. And the only decision of the Social Security Appeals Tribunal was a decision in respect to an " exceptional circumstances relief payment ". The jurisdiction of this Court conferred by s 44 of the 1975 Act is again confined to entertaining an appeal " on a question of law, from any decision of the Tribunal ". Confined to the decision as made by the Administrative Appeals Tribunal, no question of law arises such as to warrant an extension of time being granted in respect to that decision. The jurisdiction conferred by s 44, it should be recalled, is more narrow than a jurisdiction to entertain an appeal from a decision " involving a question of law ": TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 19 ATR 1067 , 82 ALR 175. 27 Given the lack of any prospects of success on appeal, consideration need not be given to such other factors as may otherwise have been relevant to the exercise of the discretion, including the failure to identify -- or, at the very least, attempt to identify -- the " question of law " which the Applicant wished to have resolved on appeal. 28 Even had an extension of time been granted, an appeal would have been dismissed.


case_text: Prime highlights rightly, in my respectful submission, that the fact that it has prepared a supplementary list does not, in any way, lead to a conclusion that one should not regard the presumption of conclusivity as still present. In this regard it points to observations made by inter alia Branson J in Brookfield v Yevad Products Pty Ltd [2002] FCA 1376. In turn, those particular submissions are contested by Fig Tree. 14 O 15, r 8 of the Federal Court Rules provides as follows: Order for particular discovery Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party. 15 I emphasise in the terms of O 15 r 8 the words "grounds for a belief" and "may be or may have been". It is true that one does not lightly go behind a discovery affidavit. Prima facie, such an affidavit is conclusive, but that prima facie position may be displaced in the circumstances described in O 15 r 8. Even if displaced, there remains a discretion to exercise. Would it, for example, be unduly oppressive to order the filing of a further affidavit having regard to the potential utility to the party complaining of the document or category of documents? More generally, is it in the interests of justice so to order?


case_text: And later and by reference to a judgment of Buckley LJ in Chanel Ltd v F.W. Woolworth and Co Ltd (1981) 1 WLR 485: An order or undertaking to the court expressed to be until further order by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown. 33 The explanation was, he said, that it was not an attempt to modify the contract implicit in the order or undertaking. It was an application in accordance with the contract and, as such, the exercise of an express right reserved by the contract to the party bound by the terms of the order or undertaking. Prime developed at some length a submission that, having seen the manuals which are presently confidential exhibits, there was nothing confidential about them. Fig Tree, at some length, contested this. The consent orders incorporated an agreed position in respect of the manuals. Liberty to apply was reserved to work out questions concerning the operation of those orders. I do not read the reservation of liberty to apply as a reservation of or an invitation to raise questions concerning the confidentiality of the manuals. 34 It is quite apparent from the material read before me that the orders made by consent in November last year obviated, for reasons which were thought good at the time, any contest concerning an issue in relation to the confidentiality of such documents. I see no reason not to hold Prime to its bargain concerning the status of those manuals. Particularly that is so having regard to the relative proximity of the hearing of the application to the date of trial and the length of time which has elapsed since November last year. It also seems to me that there will not be any unjust inhibition of Prime's forensic position if the present position with respect to those manuals is maintained.


case_text: The orders made on 28 November 2007 envisaged liberty to apply. There is a very helpful passage in respect of the position which obtains in relation to orders which have been made by consent in the judgment of McPherson J in his then capacity as Senior Puisne Judge of the Supreme Court of Queensland in Fylas Pty Ltd and Vynal Pty Ltd (1992) 2 Qd R 593 at 599 and also 601. The whole passage is too lengthy conveniently to set out in reasons delivered ex tempore. I do, though, highlight the following observations made by his Honour by reference to authority: The position is more complex where the order is made or the undertaking is given in consequence of an agreement between the parties or as an element in such an agreement. For a long time the rule has been that, "The contract of the parties is not the less a contract, and subject to the incidence of a contract because there is superadded the command of a Judge."


case_title: Gray and Associated Book Publishers (Aust) Pty Limited [2002] FCA 1045

case_text: In Gray and Associated Book Publishers Aust Pty Limited [2002] FCA 1045 , 23 August 2002, one aspect of an interlocutory controversy before Branson J was self indulged masking out seemingly, in that case, on the basis of an asserted private right of confidentiality. Her Honour observed at para 9: The rules of the Federal Court provide no basis for "a claim of irrelevance" in respect of a portion of a document that falls within the terms of an order for discovery. However, it is clear that the power of the court to order that a discovered document be produced for inspection by another party is a discretionary power (see order 15, rule 11). Further, order, 15 rule 5 relevant provides "the court shall not make an order under this order for the filing or service of any list of documents or affidavit or other documents or for the production of any document, unless satisfied that the orders are necessary at the time when the order is made." What is "necessary" within the meaning of order 15, rule 5 is that which is reasonably necessary in the interests of a fair trial and of the fair disposition of the case (Trade Practices Commission v CC (NSW) Pty Limited (1995) 58 FCR 426 at 436-437 Lindgren J). 49 I respectfully agree. As in Gray , Fig Tree did not obtain the agreement of Prime to the masking of portions of its discovered documents, nor did it seek relief from the Court from its prima facie obligations to allow full inspection of its discovered documents. Should that practice now, nonetheless, be authorised by the Court? I share with Mackenzie J, whose concern is evidenced in Menkens v Wintour [2007]) 2 QdR 40, the view that it is salutary to keep in mind another passage from McLelland CJ in Telstra, in which his Honour emphasises a need for caution in exercising a discretion to allow parts of a document to be concealed. As the Chief Judge stated in that case: There is a serious risk that too assiduous a marking of documents on the ground of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the grounds of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified.


case_title: Interchase Corporation Ltd in Liquidation v Grosvenor Hill Qld (Pty Ltd) No 2 (1999) 1 Qd R 163

case_text: The rules require a description to be adequate so as to: ...facilitate the production of a particular document for which the privilege has been claimed in the event, for example, of a cessor of the privilege (though for example publication dehors the proceedings) or should the court production upon a ruling that the privilege does not in fact attach : Interchase Corporation Ltd in Liquidation v Grosvenor Hill Qld (Pty Ltd) No 2 (1999) 1 QR 163 at 170. 39 A party seeking disclosure is not entitled to have such a description as would enable the formation of a prima facie view as to the correctness of the claim of privilege.


case_text: The detail of Fig Tree's submissions as to why no such discovery should be ordered appears at para 61 of its outline. Again, the exigencies of the moment do not conveniently admit of setting that out in full. It seems to me that discovery should not be ordered in respect of this category because: 1. no arguable basis for the discovery of such documents as an aid to construction has been made out; and 2. in relation to the repudiation controversy the test an objective one - what the conduct would convey to a reasonable person in the position of the other party : Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 ; (2007) 241 ALR 88 at para 44. 44 Having regard to what is there said, the arguments advanced on behalf of Prime as to the relevance of the documents in this particular category are not persuasive. This aspect of the application fails. 45 Fig Tree has arrogated to itself the ability, without Court order, to mask out portions of discovered documents. Mr Tomlinson, in exhibits to his affidavit has given examples of what has been done in this regard. There are many documents indeed which have been masked out. How the masking out was done is explained in an affidavit of Ms Freyling, a solicitor in the employ of Minter Ellison, the solicitors for Fig Tree. She and two others, respectively described as a graduate and a research clerk (each presumably, therefore, not a solicitor), were involved in a process of masking out. Sometimes in cases thought to be doubtful, advice was taken from a more senior practitioner within the firm. Ms Freyling swears, and it is worth recording that she was not cross examined in this regard, that some 90 to 95 per cent of masking out was on the basis of "relevance" with the balance being privilege.


case_text: In Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242 , Stone J dismissed an application for an order which would have required a defendant to provide a list which specifically identified each document in respect of which a claim for privilege was advanced. Her Honour observed at paragraph 13: I do not propose to make the order sought by Kyocera. The categories have been identified not by description of the legal privilege that is claimed but by description of the documents themselves. The discovery has been verified by affidavit. In the circumstances, I am of the view that the costs involved in a matter that has been going for such a long period of time as this far outweigh any benefit from identifying and describing the documents individually in the way Kyocera seeks. 41 While the practice adopted by Fig Tree may not, at least to some, be an exemplar of perfection, it adequately recites in paras 1 to 3 of Pt 2 of Sch 1, the grounds upon which privilege is claimed in those parts of the documents in Pt 1 of Sch 1. A solicitor has certified that list. The observations made by Stone J seem to me to be apposite in the circumstances of this case. In particular, I am not satisfied that the costs of striving for any further precision at this stage of the proceedings are warranted. This aspect of Prime's notice of motion fails. 42 There has been discovery of certain documents falling into this category. What is controversial is whether there should be discovery of: Correspondence passing between Fig Tree and SCV which relate to the coming into existence of the assignment agreement between them, ie, an agreement which was made on 30 May 2007, much as the correspondence, which has flowed between solicitors on this subject.


case_text: It seems to me, though, having regard to the terms of the announcement, that any privilege in so much of any advice from senior counsel as is referred to in that announcement has been waived by Prime. I take the relevant principle from a passage in the reasons for judgment of Gleeson CJ and Gaudron, Gummow and Callinan JJ in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at page 13 at para 29: Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law" 37 . This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. . . . What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 23 Their Honours continued at page 15: Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. 24 There is certainly a temporal element in the word "following" which appears in the media release. In context, though, my opinion is that there is not only such an element. It also seems to me that it carries with it an indication that the course of action described and position taken is in conformity with senior counsel's advice. Why else, one asks rhetorically in a matter such as this with its evident seriousness in a public announcement, does one make such a reference to senior counsel? It is, of course, the case that senior counsel's advice to Prime may have ranged much more widely than that described in the media release. I can see no waiver of any such wider ranging advice apparent on the face of that media release. 25 It is conceivable, therefore, that there may well be, at least prima facie , some residual privilege claim available. I propose, therefore, to order that a further affidavit of documents be provided in respect of the category four documents. In so ordering I reserve expressly such claims of privilege in respect of documents within that category as may be just. Those claims will obviously be subject to the conclusions which I have reached in respect of waiver. 26 Category 9 is described in the schedule. It is not necessary to set out its terms in detail. That is because the fate of the application in respect of category 9 seems to me, correctly with respect, as was submitted by counsel on behalf of Fig Tree to turn on the outcome of category 1. There will, therefore, be an order for a further affidavit in respect of category 9.


case_title: Menkens v Wintour [2007] 2 Qd R 40

case_text: I respectfully agree. As in Gray , Fig Tree did not obtain the agreement of Prime to the masking of portions of its discovered documents, nor did it seek relief from the Court from its prima facie obligations to allow full inspection of its discovered documents. Should that practice now, nonetheless, be authorised by the Court? I share with Mackenzie J, whose concern is evidenced in Menkens v Wintour [2007]) 2 QdR 40, the view that it is salutary to keep in mind another passage from McLelland CJ in Telstra, in which his Honour emphasises a need for caution in exercising a discretion to allow parts of a document to be concealed. As the Chief Judge stated in that case: There is a serious risk that too assiduous a marking of documents on the ground of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the grounds of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified. 56 It is submitted that there is no utility demonstrated in requiring the provision for inspection of complete documents; I respectfully disagree. I have already voiced agreement with concerns voiced by Mackenzie J and made reference to a risk that I apprehend is present. 57 It may very well be that in relation to many of those 2005 documents that this particular risk, presently apprehended, proves to be unfounded. If so, though, that will be wisdom of hindsight. At present, it seems to me that Prime has been presented, in a way the nature and extent of which it is not possible, on the materials to hand, fully to judge, with, at least, some and probably many documents which have about them a quality of sterility and depravation of context so far as their meaning is concerned. There is, in my opinion, forensic utility in the ordinary position prevailing. That Fig Tree may incur further expense in the provision of unmasked copies is a consideration, but it is outweighed by the considerations that I have mentioned. 58 A concern also that I have is that, at this stage, one ought not encourage what I regard as a practice which is irregular. Irregular, in the sense that no Court order and, for that matter, no prior agreement was sought. I am concerned also, though, that Fig Tree should not be deprived of just claims of privilege in respect of its discovered documents. I therefore propose to order that such of the masked documents as are subject to a claim for privilege be excluded from production, save for that Fig Tree must produce the documents which it has discovered in its lists. I reserve liberty to apply in respect of any dispute as to the validity of a claim for privilege. Subject, though, to that, I propose to order that unmasked copies of Fig Tree's discovered documents be produced for inspection.


case_title: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425

case_text: An allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. Smith FM relied upon the decision in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 in which the High Court held that the apprehended bias must be determined by an objective standard of a fair minded lay observer. Applying such test Smith FM was unable to conclude that any bias existed as claimed. The Court considers that Smith FM was entitled to make the finding above on the evidence before him.


case_text: It follows that the appeal must be dismissed. The Court notes that consistent with the High Court's decision in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Refugee Review Tribunal should be joined as a second respondent. 24 The first respondent seeks an order that its costs be paid in the sum of $2400. As this quantum is in the range of costs which is realistic, the Court will make such order. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 November 2006 Counsel for the Respondent: S Kaur- Bains Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 November 2006 Date of Judgment: 8 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1470.html


case_outcome: referred to


case_text: should also be noted that all relevant parties, save for any purchasers from placees, appear to me to have been served with notice of the proceeding, although not in a formal sense of being made parties. It seems to me that would be going too far to directly involve such possible purchasers. The notice which is going to be given to ASIC, the Australian Stock Exchange and to the persons who would have sold to those purchasers does seem to me to give a reasonable possibility of the word getting out to any purchasers substantial enough to be interested in pursuing any remedies. I referred earlier to a proviso. That proviso appears in a decision of Hely J in Re Australian Wealth Management Pty Ltd [2005] FCA 311. It gives liberty for a party, who claims to have suffered substantial injustice by reason of the orders, to apply to vary or discharge them within a limited period. That is a prudent proviso in matters dealt with ex parte and there are no other parties albeit that many of the people concerned have notice of the proceeding. I will simply make orders in accordance with the short minutes of order which I have initialled and placed with the papers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 24 August 2007 Counsel for the Plaintiffs: Mr T Bathurst QC Solicitor for the Plaintiffs: Allens Arthur Robinson Date of Hearing: 15 August 2007 Date of Judgment: 15 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1316.html


case_title: Re Bounty Industries Ltd [2007] FCA 956

case_text: orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).


case_title: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581


case_title: Re Wave Capital Limited (2003) 47 ACSR 418


case_title: Re Westpac Banking Corp (2004) 53 ACSR 288


case_title: Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398


case_outcome: related

case_text: The appellant appeals to this Court from a decision of Jarret FM dated 5 June 2008 ( BRGAG OF 2008 v Minister for Immigration and Citizenship [2008] FMCA 722). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister dated 16 October 2008 wherein the delegate refused the grant of a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act). 2 The appellant is a citizen of the Republic of Indonesia. He arrived in Australia on 26 August 2007 and applied for a protection (class XA) visa on 20 September 2007. The appellant claims that he is at risk of being persecuted by the Indonesian authorities. 3 The appellant claims that prior to 1998 he had a very close relationship with the Soeharto government. He claims that after 1998 he fell out of favour with the new Indonesian government because of that relationship.


case_text: In relation to the third ground of appeal, his Honour noted that the Tribunal considered the claims of the appellant relating to being beaten by police, imprisoned for one month and the possibility of further prosecution, and that the Tribunal found that these claims were unsubstantiated. As the appellant did not attend the Tribunal hearing, the Tribunal was unable to consider any additional facts relating to the assertions of the appellant. To the extent that the appellant seeks to re-agitate the facts before the Tribunal, this is not the role of the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . 23 I do not consider the grounds of appeal substantiated. In my view the appropriate order is that the appeal be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 November 2008 The Appellant appeared in person. Solicitor for the First Respondent: Mr S Maycock of Clayton Utz Solicitor for the Second Respondent: The Second Respondents did not appear Date of Hearing: 18 November 2008 Date of Judgment: 18 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1733.html


case_text: The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. In this case I do not consider that the appellant has established either jurisdictional error in the decision of the Tribunal, or appellable error in the decision of the learned Federal Magistrate. 20 In relation to the first ground of appeal it is clear from the decision record of the Tribunal that the Tribunal did consider the appellant's claims and whether the appellant had a well founded fear of persecution. As the appellant did not attend the Tribunal hearing or submit any further material the Tribunal was unable to consider further information. It is not for the Tribunal to make a case for the appellant rather it is for the applicant before the Tribunal to make his or her case for consideration by the Tribunal. 21 In relation to the second ground of appeal I consider that there is little to distinguish this ground from the first ground of appeal to the extent that the appellant submits that the Tribunal did not give proper consideration to his case. I have nothing to add to my conclusion in relation to the first ground of appeal.


case_text: In Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60 I have ordered that the application be summarily dismissed against all respondents. Put shortly, I found that the Statement of Claim was, first, offensive, embarrassing and disclosed no reasonable cause of action and, second, the causes of action relied upon were in any event doomed to failure because they sought to impeach a consent order of a superior court of record without first having that order set aside. 2 The respondents have sought to be heard on the question of costs. They now seek an order that costs be awarded in their favour on a solicitor and client basis.


case_text: The jurisdiction of the Court to order costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). The section provides a broad and ample power which ought not be read down otherwise than in accordance with accepted principle. The discretion so conferred is informed by the ordinary practice of this Court that an unsuccessful party usually will be required to pay the costs of the successful party on a party and party basis. That practice, as was indicated in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 729 and 732-733, is not departed from unless the justice of the particular case so requires or some special or unusual feature arises.


case_text: The courts in quite some number of cases have indicated types or categories of case in which the award of costs on a basis other than party and party may appropriately be ordered: see e.g. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. However, they have emphasised that the categories are not closed and that, even though circumstances may exist which are capable of warranting a more generous costs order than on a party and party basis, this does not compel that such an order be made: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685 at 687-688. For present purposes it is unnecessary to consider the case law in any detail. I am content in this matter to adopt the observations of Gray J (with whom the other members of the court agreed) in Hamod v New South Wales (2002) 188 ALR 659 at [20]: "Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."


case_title: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685


case_title: Hamod v New South Wales (2002) 188 ALR 659


case_text: As Bowen CJ said in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234, open justice is the underlying assumption of s 50. There is nothing to suggest that publication of my reasons, or even publication of the applicant's name, would frustrate the administration of justice or any other public interest. 172 Whilst publication may affect the applicant's reputation or cause her embarrassment or perhaps even damage, those factors are essentially of a private nature. Even if they bear on matters of public interest, they cannot tip the scales against the public interest in open justice. 173 I decline to make the order sought.


case_text: However, the following remarks of Menzies J in Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 382 show why s 39B(1A)(c) is not enlivened:- "A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law." 162 Here, the issue before Senior Member Kelly was whether the relevant government agencies had made adequate searches for the documents. The questions explored by the applicant with Ms Smith as to the circumstances in which their friendship ceased, the imputation of a disability, and contact with relatives, were irrelevant to that issue. 163 It was therefore not necessary for there to be a decision on those questions and no matter arose under the DSA or the other Federal statutes to which the applicant referred.


case_text: Senior Member Allen also referred to the judgment of Merkel J in Herald & Weekly Times Limited v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 (" Herald & Weekly Times") in which his Honour adopted the observations of Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 (" John Fairfax" ). There, the learned President, as he then was, pointed out at 142 that:- "A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed in the greater public interest in adhering to an open system of justice." 124 Senior Member Allen took into account the embarrassment and damage which may flow to the applicant from publication. This is evident from his quotes from Re Pochi , Herald & Weekly Times and the remarks of Kirby P in John Fairfax .


case_title: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131


case_text: The second category arises out of the application heard by Senior Member Kelly on 1 November 2004. The applicant seeks an order prohibiting the learned member from making her decision and orders removing her from the conduct of the review. However, I refused to grant interlocutory relief which sought to prevent Senior Member Kelly from making her decision; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J; see [2005] FCA 541. The request for such orders in the present proceedings has thus been overtaken by the publication of Senior Member Kelly's decision on 24 May 2005. 167 Moreover, as Hely J observed in Lawrance v Administrative Appeals Tribunal [2005] FCA 541 at [39] there is an additional problem with the applicant's claim. A witness appearing before the AAT has the protection conferred by s 60(3) of the AAT Act . As his Honour said, the applicant's claim for an injunction would run counter to the immunity given by that section even if it were established that Ms Smith lied at the hearing before Senior Member Kelly. 168 In any event, Senior Member Kelly accepted the evidence of Ms Smith. That was a finding of fact made within jurisdiction. 169 The applicant asks me to make an order under s 50 of the Federal Court of Australia Act 1976 (Cth) that the Court suppress her name and refrain from publishing its decision in this matter.


case_text: Other requests for information in wide terms appear to have been made to the other relevant respondents; see Lawrance v Administrative Appeals Tribunal [2005] FCA 1318. 47 On 8 March 2004, CRS replied to the applicant's request. CRS said:- " - CRS Australia provides vocational rehabilitation, under the Disability Services Act (Cth) 1986. Vocational rehabilitation is a voluntary process and all CRS Australia vocational rehabilitation programs are provide (sic) in consultation with the client; - CRS Australia does not conduct surveillance, and does not endorse the collection of personal information without the individual's knowledge and consent; - Following searches of CRS Australia electronic records, using the details provided in your letter, I can confirm that CRS Australia has no record of you being a CRS Australia client, employee or contractor; - If you had been a CRS Australia client at anytime between 1986 and 2004; an electronic record of your involvement with CRS Australia would have been made; - CRS Australia does not hold personal or health information about individuals who are not CRS Australia clients, employees or contractors; - All correspondence about clients, including correspondence via e-mail and facsimile, is kept in hard copy on the client's CRS Australia file." 48 CRS concluded by saying that in accordance with s 24A of the FOI Act , CRS was unable to provide the information requested. CRS stated that all reasonable steps had been taken to find the documents and that none could be found or did not exist.


case_title: Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79

case_text: The second category arises out of the application heard by Senior Member Kelly on 1 November 2004. The applicant seeks an order prohibiting the learned member from making her decision and orders removing her from the conduct of the review. However, I refused to grant interlocutory relief which sought to prevent Senior Member Kelly from making her decision; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J; see [2005] FCA 541. The request for such orders in the present proceedings has thus been overtaken by the publication of Senior Member Kelly's decision on 24 May 2005.


case_text: However, on the material before me, there is nothing to make good the assertion that there was a denial of procedural fairness in the approach adopted by Senior Member Allen. No transcript of the hearing of the application was put before me, and there is nothing to suggest otherwise than that all of the applications for suppression orders were made on the same basis and on the same material. It would follow that the legal and factual issues were identical in each application under s 35(2). See NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] ; cf Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [121] [122].


case_title: NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241


case_text: As to the principles to be applied, Senior Member Allen referred to the judgment of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 (" Re Pochi") at 272 273. His Honour said that an order excluding the public may be more justified than an order excluding a party but that strict criteria govern the making of such an order. There must appear to be a real possibility of injustice to, or a serious disadvantage upon, a party or a witness or it must clearly appear that publication of the proceeding would be contrary to the public interest. 124 Senior Member Allen took into account the embarrassment and damage which may flow to the applicant from publication. This is evident from his quotes from Re Pochi , Herald & Weekly Times and the remarks of Kirby P in John Fairfax .


case_text: Her reasons include submissions that the respondents have behaved unreasonably, that her claim is made in public interest litigation and that the case involves her personal liberty; see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at [29] . 176 I reject the applicant's submissions. Nothing has been put to persuade me that costs ought not to follow the event. 177 I will order that the application be dismissed and that the applicant pay the costs of the fifth to ninth respondents; otherwise it seems appropriate that there be no order as to costs of the remaining respondents. I certify that the preceding one hundred and seventy seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 5 April 2006 Counsel for the Applicant: The Applicant appeared in person Solicitor for the 5 th to 9 th Respondents: Australian Government Solicitor Date of Hearing: 16 March 2006 Date of Judgment: 5 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/342.html


case_title: Scott v Scott [1913] AC 417

case_text: Senior Member Allen observed that the policy reasons for adhering to an open system of justice were stated by Lord Atkinson and Lord Shaw in Scott v Scott [1913] AC 417 at 463 and 484-485 respectively.


case_text: Nothing that was said by the High Court in the recent decision on federal jurisdiction in Sweedman v Transport Accident Commission [2006] HCA 8 assists the applicant in the present case. There the Court was concerned with choice of law rules applicable in the County Court of Victoria in respect of a motor accident. The accident occurred in New South Wales between vehicles registered respectively in Victoria and New South Wales and driven respectively by Victorian and New South Wales resident drivers. 165 The majority Justices observed at [33] that the County Court was exercising federal jurisdiction and that federal law controlled and required under s 80 of the Judiciary Act the applicable law. No such questions arise in the present case. 166 Here, no debate as to whether there may be the excessive long-arm jurisdiction, which concerned Callinan J in dissent at [102], is triggered. This is a case in which no issue of federal jurisdiction is engaged by the complaints made against Ms Smith.


case_text: It is true that the applicant claims rights under Federal laws such as the DSA and that she claims breaches of rights or duties which owe their existence to Federal laws; see the discussion of the well established authorities in Transport Workers Union of Australia v Lee (1998) 84 FCR 60 at 65-67 (Black CJ, Ryan and Goldberg JJ).


case_text: Thus, although persons may be officers of the Commonwealth for some purposes, eg as employees of a government agency, that will be irrelevant where the impugned decision is that of the body corporate; see Vietnam Veterans' Affairs Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419 at 432 per Tamberlin J; see also Aronson at 31. 157 As Aronson states at 33, the main point of s 75(v) is to ensure judicial supervision of the execution of Commonwealth statutes and the exercise by the Commonwealth of common law and executive powers. 158 Nothing which Ms Smith is said to have done falls within this description. She was summonsed by the applicant to give evidence on an application to review the decision of CRS to refuse access to documents. What Ms Smith said in the witness box, or in her statement given to CRS in connection with the application, had no connection whatsoever with her duties or functions as an officer of the Commonwealth. No issue of want of power or want of jurisdiction was in any way involved in Ms Smith's actions.


case_text: The principles governing the grant of interlocutory relief are well established, and have recently been reaffirmed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 (' O'Neill ') at pars 19 and 65 and following. In O'Neill , the High Court affirmed the approach adopted by the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618. At par 19, Gleeson CJ and Crennan J said: '... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed ...' 34 The next major question is where the balance of convenience lies and whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy. It seems to me that my approach, in this case, should mirror that of the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited (1967 - 68) [1968] HCA 1 ; 118 CLR 618 at 625, where the Court said: 'The facts which appear to us to be decisive on this question may be stated quite briefly. In April 1967, after the plaintiff had been building up in Australia a substantial business in ampicillin over a period of several years, the defendant announced its intention of marketing hetacillin in Australia. The plaintiff on 10 May 1967 warned the defendant that if it began to do so proceedings for infringement of the patents would be taken. It was in the face of this warning that the defendant commenced the acts now complained of, and the action was thereafter instituted without delay. Any goodwill the defendant may since have built up for hetacillin would of course be destroyed or damaged by granting an injunction, but that was a risk the defendant took with its eyes open. If it be not restrained, it will presumably take advantage of the time before the hearing to subject the goodwill of the plaintiff's established trade in ampicillin to the prejudice of competition from a product which the defendant maintains has some points of superiority. In no meaningful sense could matters be said to be kept in status quo if in these circumstances the defendant were left free to pursue its course, merely keeping an account of the profits it makes.' That approach was recently reaffirmed by the High Court in O'Neill , to which I have earlier referred.


case_title: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618


case_title: Malleys Ltd v JW Tomlin Pty Ltd [1961-62] 35 ALJR 352

case_text: The High Court in Malleys Ltd v JW Tomlin Pty Limited [1961 62] 35 ALJR 352 (' Malleys ') at p 352 said: 'It is, of course, true that every shape is not a design; there must be "sufficient individuality of appearance" to distinguish it from what Russell-Clarke in Ch.2 of his book Copyright in Industrial Designs aptly describes as "the fundamental form" of an article. Furthermore, the existence of that sort of individuality is to be determined by the eye and not by measuring dimensions . It follows that a design need not have the precision of a working drawing; it concerns the shape or configuration of an article, as it appears to the eye. If a design applied by another has the features that are characteristic of the registered design and are so arranged that to the eye the resulting shape is substantially the same, there is infringement, whereas if the same features are arranged so that to the eye the resulting shape is different, there is, in the absence of fraudulent imitation, no infringement.' (Emphasis added.) 23 The applicant's written submissions set out the features of the Registered Design, correctly in my view. Those submissions recite: '15. The Registered Design depicts a surf mat which can be characterized as having the following individual design features or integers which, when combined, result in its distinctive appearance: (1) [viewed in plan (as from above or below)] a crescent or swallow shaped tail or end; (2) symmetrically curving towards a widest point approximately three quarters along its length; (3) which then curves to a flattened top; (4) from which two handles protrude; (5) [viewed in profile from either end] an ovaloid shape with slightly flattened top and bottom which at each side comes to a point; (6) [viewed in profile] an elliptical shape that is thicker at the front portion and which tapers to a narrower rear portion.' 24 I have inspected the inflated DMC product and compared it with the Registered Design. The inflated DMC product possesses each of the features identified in the applicant's written submissions, with the exception that the handles do not protrude from the top of the surfmat as depicted in the Registered Design. The handles on the Wavestar also do not protrude from the top of the surfmat, as depicted in the Registered Design. 27 For present purposes, being the interlocutory purposes, I am satisfied that, to the eye, the shape of the DMC product is substantially the same as that of the Registered Design. It is, in my opinion, strongly arguable that the design, which has been applied to the DMC product, is an obvious imitation of the Registered Design. That is, in the words of the test in Malleys , to be found at p 354 of the report: ''... not the same but a copy apparent to the eye notwithstanding slight differences ...'


case_title: Polyaire Pty Ltd v K-Aire Pty Ltd and Others [2005] HCA 32 ; (2005) 221 CLR 287

case_text: Even if I am wrong in that view, it seems that the test for fraudulent imitation is also - and even more strongly arguable. The test for fraudulent imitation requires less objective similarity between the Registered Design and the impugned product. The High Court, in Polyaire and K-Aire Pty Ltd [2005] HCA 32 ; (2005) 221 CLR 287 ( 'Polyaire' ) was concerned with, amongst other things, the question of fraudulent imitation. At p 301 par 32 the High Court approved the passage in Edmunds and Bentwich, ' The Law of Copyright in Designs' : 'A "fraudulent imitation" is imitation with knowledge that the patent is a registered design, and without any sufficient invention on the part of the imitator.' 30 The High Court, in Polyaire, said, at p 295 par 17: '...the application of a "fraudulent imitation" requires that the application of the design be with knowledge of the existence of the registration and of the absence of consent to its use, or with reason to suspect those matters, and that the use of the design produces what is an "imitation" within the meaning of para (a) [of s 30(1) of the 1906 Act] . This, to apply the general principle recently exemplified in Macleod v The Queen [(2004) 214 CLR 242] , is the knowledge, belief or intent which renders the conduct fraudulent...' 31 I am satisfied that there is a strongly arguable case of fraudulent imitation. It seems inevitable that, if the Wavestar is an embodiment of the Registered Design, then the DMC product is a fraudulent imitation. The design of the Wavestar and the DMC product is almost identical. It could not have been independently created. It is now admitted that the DMC product is a copy of the Wavestar. That conclusion is the explanation, it seems to me, of the identical ribbing structure and the same construction materials. 32 So, also, is the embarrassing identity of the direct words of the warning label, including the imprinting of the words: 'The shape of this inflatable product is a Registered Design' .


case_title: Koninklijke Philips Electronics NV & Another v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167

case_text: The High Court approved the observations by Lehane J in Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167 at p 200, where Lehane J said: '...the essential questions are, first, whether the allegedly infringing design is based on or derived from the registered design and, then, whether the differences are so substantial that the result is not to be described as an imitation. Frequently, of course, probably usually, changes will have been introduced for the purpose of disguising copying or, perhaps, because of a conscious desire to come as close as possible to the registered design while avoiding infringement. But, as this case illustrates, particular changes may be introduced for other compelling reasons; and there is no obvious reason why that should defeat a claim of fraudulent infringement.'


case_text: One of the matters raised by Mr Oakes' submission is what I can call the "credit risk issue" which arises from the necessary lead time before the payment of the cash consideration. I am satisfied that the scheme adopts a version of the model which was approved by Gyles J in Re Tempo Services Limited (2005) 53 ACSR 523. I note also that the evidence includes a letter from the Washington Post Company dated 10 March 2006 in which that company unconditionally undertakes to Kaplan to provide Kaplan with the scheme consideration. 10 One other matter which I raised with Mr Oakes is that the scheme provides for a takeover of the scheme company which could have proceeded under the provisions of Chapter 6 of the Act . 11 In Ford's Principles of Corporations Law at [24.060] the authors set out the authorities which have considered this question. The authors conclude that the effect of the cases is to preserve the availability of the Scheme of Arrangement procedure to achieve a friendly takeover offer notwithstanding s 411(17) as long as the scheme includes essential elements which could not be achieved under Chapter 6.


case_title: Alister v The Queen (1984) 154 CLR 404

case_text: Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 , a public interest immunity case about documents recording cabinet deliberations, the Court said at 620: There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined. See also Alister v The Queen (1984) 154 CLR 404 at 469 and Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532 at [180] and [185] per Crennan J. Northern Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. I have referred in connection with the respondent's affidavit to the great importance that is attached to the respondent's opinion as to the damage to national security incident upon disclosure. Obviously that is also the case in relation to the disclosure of the documents over which privilege is claimed. I have summarised the respondent's reasons for his opinion about the possible effects of disclosure of the documents in question. This is all derived from the open parts of his affidavit. The Final Appreciations and related briefing notes set out the reasoning process that underlies the making of security assessments, which are the key mechanism by which ASIO advises government that particular individuals pose a threat to national security. If documents falling within this class were required to be produced, ASIO would be giving information about its knowledge, assessments and methodology to the very people to whom it is most important that national security information is not disclosed: cf Alister 154 CLR at 454-455 per Brennan J. As the respondent has deposed, the relevant class is "one of the classes of documents held by ASIO that require the greatest level of protection" first, because of the inherent sensitivity of the information that is routinely contained in such documents, and second, because of the detrimental consequences in terms of the quality of decision-making that would be likely to follow if ASIO officers were forced to omit particular kinds of information from Final Appreciations and related briefing notes due to the risk that those documents will become available to persons the subject of security assessments. The applicants contended that the respondent was not able to make a class claim. It was said that he seeks to describe as a class claim documents which he considers constitutes a Final Appreciation and documents related thereto. That description, they say, does not constitute an identifiable class. The table in the affidavit (set out at [9]) refers to an internal email, an internal minute and a briefing note. It does not refer to any Final Appreciation. By way of contrast, the applicants assert that Cabinet documents constitute a clear class claim. Here they say the so-called class claim involves the respondent asserting for himself that particular documents constitute Final Appreciations. I do not think that is a fair description of the respondent's claim. The presently relevant parts of his affidavit are as follows: (a) shortly after identifying the documents in the table at [9] he describes them on a class basis as "paradigm examples of documents that ASIO should not be required to disclose save in exceptional circumstances"; (b) the results of complex security assessments are usually contained in a Final Appreciation document, though it may not be headed in that way; (c) the Final Appreciation ordinarily takes the form of an ASIO minute; (d) when the investigative branch assesses an individual to be a threat to Australia's national security, the respondent is advised, usually by a DGBN; (e) often both a DGBN and a Final Appreciation are provided to the respondent for decision; (f) it is the document on which a security assessment is based, being the Final Appreciation (however that document is headed) and any associated DGBN that cannot be disclosed; (g) the class claim advanced concerns the class of documents shortly described as "Final Appreciation documents and related briefing notes"; (h) documents in this class invariably contain specific detail as to why persons are assessed as a risk to national security, and specific details of intelligence sources and methods; (i) the respondent has examined the ASIO documents, namely those in the table (the class claim) and the contents claim documents; and (j) the disclosure of the documents in (i) would prejudice Australia's national security for the reasons stated in the affidavit.


case_text: weeks after I had reserved my decision the applicants' counsel submitted a memorandum drawing my attention to a recent decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74. No leave was sought to file additional material, no prior notice was given to the respondent, and the respondent submits that I should not receive the memorandum. On many occasions the High Court has said that the hearing is the time and place to present arguments, and has explained why unauthorised post-hearing submissions will generally not be received. See for example Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 258, Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 ; (2003) 214 CLR 318 at [27] - [31] and Re Chief Commissioner of Police (Vic) (2005) 214 ALR 522 at [22].


case_text: next question is whether the respondent's public interest immunity claims should be upheld. In Church of Scientology v Woodward [1982] HCA 78 ; (1980) 154 CLR 25 at 76 Brennan J said: Discovery would not be given against the Director-General [of Security] save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice ... ... the veil of secrecy is not absolutely impenetrable ... But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. See also Leghaei v Director-General of Security [2007] FCAFC at [52] and R v Khazaal [2006] NSWSC at [31]-[32]. In seeking to establish an exceptional case the applicants' point out that they may be unable to make out their cases if the claim to immunity is upheld. The authorities establish that this consequence of the outcome of the process of balancing public interest immunity against the public interest, upon which the applicants rely, of having conventional access to evidentiary material, is not exceptional. Thus in the Scientology case at 76-77 Brennan J referred to the obstacles in a plaintiff's path in judicial review proceedings against the Director-General arising out of the restrictions imposed upon discovery in aid of proving what is and is not relevant to security. In the same case at 61 Mason J noted that a successful claim for privilege may exclude from consideration the very material on which a plaintiff hopes to base his argument. These observations of Mason J were quoted with approval by Gummow, Hayne, Heydon and Keifel JJ in Gypsy Jokers Inc 234 CLR at [24]. In that case at [5] Gleeson CJ said that the consequence of success of a claim for public interest immunity against disclosure of information is that the information is not available as evidence to be taken into account in deciding the outcome of judicial review proceedings. The Court would not be able to have regard to some, or perhaps any, of the information on which a public official's belief was based.